LOAN AGREEMENT

This Loan Agreement (“ Agreement ”) is dated this 25 th day of September, 2009, by and between GTY MD LEASING, INC. , a Delaware corporation (“ SPE Owner ”), GETTY PROPERTIES CORP. , a Delaware Corporation (“ Getty Properties ”), GETTY REALTY CORP., a Maryland corporation (“ Company ”), and TD Bank, N.A . , a national banking association (“ Lender ”).

A.           Company, Getty Properties and SPE Owner desire to establish financing arrangements with Lender and Lender is willing to make a term loan to Company, Getty Properties and SPE Owner under the terms and provisions hereinafter set forth.

B.           The parties desire to define the terms and conditions of their relationship in writing.

NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:

1.1.            Terms Defined .  As used in this Agreement, the following terms have the following respective meanings:

Adjusted LIBOR Rate - For each LIBOR Interest Period, a per annum interest rate determined pursuant to the following formula:

Adjusted LIBOR Rate =                             London Interbank Offered Rate

1 minus the LIBOR Reserve Percentage

Affiliate - With respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

Anti-Terrorism Laws - Any statute, treaty, law (including common law), ordinance, regulation, rule, order, opinion, release, injunction, writ, decree or award of any Governmental Authority relating to terrorism or money laundering, including Executive Order No. 13224 and the USA Patriot Act.

Applicable Margin - Three and one tenth percent (3.10%).

Approved Acquisition Add-Backs - Costs incurred by the Company or its Subsidiaries in connection with acquisitions which costs are expensed rather than capitalized, in accordance with GAAP and which are approved as additions to EBITDA and FFO by Lender; provided, however, that Lender will not withhold its approval if such additions to EBITDA and FFO are approved in accordance with the Company Credit Agreement.

Bank Affiliate - With respect  to Lender, any Person which, directly or indirectly, is in control of, is controlled by, or is under common control with Lender.  For purposes of this definition only, “control” of a Person shall mean the power, direct or indirect, (x) to vote 25% or more of any class of Capital Stock having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for any such Person, or (y) to direct or cause the direction of the management and policies of such Person whether by ownership of Capital Stock, contract or otherwise.

Bankruptcy Code – Title 11 of the United States Code entitled “Bankruptcy”, as now or hereinafter in effect, or any successor statute.

Base Rate - On any day, a rate per annum equal to the greatest of (i) The “Prime Rate” of interest as published in the “Money Rates” section of The Wall Street Journal on the applicable date (or the highest “Prime Rate” if more than one is published) as such rate may change from time to time, provided, however, that if   The Wall Street Journal ceases to be published or goes on strike or is otherwise not published, Lender may use a similar published prime rate or (ii) the Federal Funds Rate in effect on such day plus one-half of one percent (½%).

Base Rate Loan – That portion of the Term Loan accruing interest based on a rate determined by reference to the Base Rate, if applicable.

Blocked Person - Section 5.17.

Board - The Board of Governors of the Federal Reserve System of the United States of America.

Borrower - Company, Getty Properties and SPE Owner, individually and collectively, and jointly and severally.

Business Day –  (i) A day other than Saturday or Sunday when Lender is open for business in the Commonwealth of Virginia; or (ii) if the Term Loan is LIBOR Rate Loan, any day which is a Business Day as described in clause (i) and which is also a day for trading by and between banks in dollar deposits in the London interbank market.

Capital Lease Obligations   -  Of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. The term “Capital Lease” shall mean a lease meeting the requirements of this definition.

Capital Stock -  Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.

Cash Equivalents - Short-term investments in liquid accounts, such as money-market funds, bankers acceptances, certificates of deposit and commercial paper.

Control -  The possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

Change in Control - (a) The acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity Interests representing more than 30% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of Company; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of Company by Persons who were neither (i) nominated by the board of directors of Company or by a majority of any nominating committee appointed by such board of directors for the purpose of nominating directors for election to such board nor (ii) appointed by directors so nominated nor (iii) directors on September 25, 2009.

Closing - As defined in Section 4.6.

Closing Date - As defined in Section 4.6.

Code - The Internal Revenue Code of 1986, as amended from time to time.

Company Credit Agreement - The $175,000,000 Credit Agreement, dated as of March 27, 2007, by and between Company, the Lenders party thereto from time to time, JPMorgan Chase Bank, N.A., as Administrative Agent and Charter One Bank as Syndication Agent, as the same may be amended, modified, supplemented or replaced from time to time.

Contracts - All of the right, title, and interest of  SPE Owner, if any, including equitable rights, in, to, and under any and all contracts and agreements relating in any way or manner to any part of the Mortgage Property, whether such contracts are now or at any time hereafter existing including but not limited to the following:  (i) all rights under the comfort letter executed in connection with the Purchase and Sale Agreement, (ii) all other contracts for the purchase and/or sale of all or any portion of the Mortgage Property, whether such Contracts are now or at any time hereafter existing, including but without limitation, any and all earnest money or other deposits escrowed or to be escrowed or letters of credit provided or to be provided by the purchasers under the Contracts, including all amendments and supplements to and renewals and extensions of the Contracts at any time made, and together with all payments, earnings, income, and profits arising from the sale of all or any portion of the Mortgage Property or from the Contracts and all other sums due or to become due under and pursuant thereto and together with any and all earnest money, security, letters of credit or other deposits under any of the Contracts; (iii) contracts, licenses, permits, and rights relating to living unit equivalents or other entitlements with respect to water, wastewater, and other utility services whether executed, granted, or issued by a Person, which are directly or indirectly related to, or connected with, the development, ownership, maintenance or operation of the Mortgage Property, whether such contracts, licenses, and permits are now or at any time thereafter existing, including without limitation, any and all rights of living unit equivalents or other entitlements with respect to water, wastewater, and other utility services, certificates, licenses, zoning variances, permits, and no-action letters from each Governmental Authority required: (a) to evidence compliance by SPE Owner and all improvements constructed or to be constructed on the Mortgage Property with all legal requirements applicable to the Mortgage Property; and (b) to develop and/or operate the Mortgage Property as a commercial and/or residential project, as the case may be; (iv) any and all right, title, and interest SPE Owner may have in any financing arrangements relating to the financing of or the purchase of all or any portion of the Mortgaged Property by future purchasers; and (v) all other contracts which in any way relate to the use, enjoyment, occupancy, operation, maintenance, repair, management or ownership of the Mortgage Property (save and except any and all leases, subleases, or other agreements pursuant to which SPE Owner is granted a possessory interest in the Land), including but not limited to engineers contracts, architects contracts, construction contracts, maintenance agreements, equipment leases, personal property leases, management agreements and service contracts.

Conversion Date - If any, the date on which the Term Loan converts to the Secured Loan.

Conversion LTV - With respect to the Term Loan, as of the Conversion Date, a loan to value ratio of not less than 60% based on appraised value of the Mortgage Properties as set forth in appraisals ordered and approved by Lender.

Conversion Margin - If the Secured Loan Maturity Date is 5 years from the Conversion Date 3.00% and if the Secured Loan Maturity Date is 7 years from the Conversion Date 3.25%.

DAG Entity - White Oak Petroleum, LLC, a Delaware limited liability company.

DAG Lease - That certain Unitary Net Lease Agreement, dated as on or about the date hereof, by and between SPE Owner and the DAG Entity, as the same may be amended, modified, supplemented or replaced from time to time.

Debt Service - As of any date of determination, Borrower’s payments of principal and interest with respect to the Obligations payable during the applicable period.

Deed of Trust – That certain Deed of Trust, Assignment and Security Agreement, dated on or about the date hereof, executed by SPE Owner in favor of Lender on or prior to Closing Date, which shall encumber the Mortgage Properties, as the same may be amended, modified, supplemented or replaced from time to time.

Default - Any event, act, condition or occurrence which with notice, or lapse of time  or both, would constitute an Event of Default hereunder.

EBITDA - For any Person or Property, the consolidated net income of such Person and its Subsidiaries or Property, as the case may be, after deduction for environmental expenses (without duplication) and adjusted for straight-line rents, plus income taxes, interest, depreciation, amortization and Approved Acquisition Add-Backs, and calculated exclusive of (i) gains or losses on sales of operating real estate and marketable securities, (ii) other extraordinary items and (iii) non-cash impairments taken in accordance with GAAP, all determined in accordance with GAAP.

EBITDAR - For Company and its Subsidiaries, EBITDA plus rent expense of Company and its Subsidiaries, all determined on a consolidated basis in accordance with GAAP.

Eligible Ground Lease - Any Property with a ground lease which (a) has a remaining term (including any renewal options exercisable at the sole option of the lessee) of at least twenty (20) years; (b) may be transferred and/or assigned by the lessee either without the consent of the lessor or with the consent of the lessor so long as the lease provides that such consent is not to be unreasonably withheld; (c) contains customary lender protection provisions which provide or allow for, without the consent of the lessor, (i) notice and cure rights, (ii) pledge and mortgage of the leasehold interest, (iii) recognition of a foreclosure of leasehold interests including entering into a new lease with the Lender and (iv) no right of landlord to terminate without the consent of lessor’s lender. In addition, “Eligible Ground Leases” shall include such other Properties with ground leases as are, upon Company’s request, approved as “Eligible Ground Leases” by Lender in its sole discretion from time to time.

Eligible Leasehold Property - Those Properties described in Schedule 1, as such Schedule 1 may be revised by Company, from time to time, upon approval by  Lender.

Environmental Laws - means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Materials of Environmental Concern.

Equity Interests - Shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

Equity Issuance - Any issuance or sale by a Person of its Capital Stock or other similar equity security, or any warrants, options or similar rights to acquire, or securities convertible into or exchangeable for, such Capital Stock or other similar equity security.

ERISA - The Employee Retirement Income Security Act of 1974, as the same may be amended, from time to time.

ERISA Affiliate - Any trade or business (whether or not incorporated) that, together with Company, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

ERISA Event - (a) Any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by Company or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by Company or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

Event of Default - As defined in Section 8.1.

Excluded Taxes - With respect to Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of Lender, in which its applicable lending office is located or by another jurisdiction as a result of a present or former connection between Lender and such other jurisdiction, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which Borrower is located.

Executive Order No. 13224 - The Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.

Expenses - As defined in Section 10.6.

Federal Funds Rate   - For any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100 th of 1% of the quotations for such day on such transactions received by Lender from three Federal funds brokers of recognized standing selected by the Lender.

FFO - Funds from operations, which shall mean consolidated net income of Company and its Subsidiaries plus the sum, without duplication, of depreciation and amortization and Approved Acquisition Add-Backs, exclusive of any gain or loss from debt restructuring or property sales plus or minus, as applicable, other non-cash charges and expenses.

Fixed Charge Coverage Ratio - As of the date of determination, the ratio of (a) EBITDAR  for the most recently ended fiscal quarter, to (b) the sum of all interest incurred (accrued, paid or capitalized) plus all regularly scheduled principal payments with respect to Indebtedness (excluding optional prepayments and balloon principal payments due on maturity in respect of any Indebtedness) paid, plus rent expense, dividends on preferred stock or minority interest distributions for such fiscal quarter, all determined on a consolidated basis in accordance with GAAP.

GAAP - Generally accepted accounting principles as in effect in the United States of America on the Closing Date applied in a manner materially consistent with the most recent audited financial statements of Company furnished to Lender and described in Section 5.4 herein.

Governmental Authority -  The government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

GPMI Lease --The Consolidated,  Amended and Restated Master Lease, dated as of November 2, 2000, between Getty Properties., as Landlord, and Getty Petroleum Marketing Inc., as tenant, as the same may be amended, modified or supplemented from time to time.

Hazardous Substances - Any substances defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic substance or similar term, under any Environmental Law.

Hedging Agreements - Any Interest Hedging Instrument or any other interest rate protection agreement, foreign currency exchange agreement, commodity purchase or option agreement, or any other interest rate hedging device or swap agreement (as defined in 11 U.S.C. § 101 et. seq. ).

Indebtedness   - Of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to unfunded deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances and (k) net obligations arising under Hedging Agreements (to the extent required to be reflected on the balance sheet of such Person in accordance with GAAP), exclusive, however, of all accounts payable, accrued interest and expenses, prepaid rents, security deposits and dividends and distributions declared but not yet paid. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Indebtedness shall not include any Intracompany Indebtedness. “Intracompany Indebtedness” means any indebtedness whose obligor and obligee are Company, Borrower and/or any Subsidiary of Company or Borrower.

Indemnified Taxes - Taxes other than Excluded Taxes.

Interest Hedging Instrument - Any documentation evidencing any interest rate swap, interest “cap” or “collar” or any other interest rate hedging device or swap agreement (as defined in 11 U.S.C. § 101 et. seq. ) between Borrower and Lender (or any Affiliate of Lender) with respect to the Term Loan.

IRS - Internal Revenue Service.

Kleinfelder Agreement - Collectively, the following documents which pertain to the monitoring and remediation of environmental contamination on the Land:  (i) that certain Master Services Agreement for Environmental Services, dated on or about the date hereof, by and between Kleinfelder East, Inc., a California corporation, and DAG Enterprises, Inc., a Virginia corporation,  as same may be amended or assigned, and (ii) any work orders or change orders issued in relation to such Master Services Agreement.

Land -Collectively, all of SPE Owner’s right, title and fee interest in and to all of those certain real properties or interests more particularly therein described in Exhibit A attached hereto and incorporated herein by reference, together with all rights, titles, interests and privileges of SPE Owner in and to (i) all streets, ways, roads, alleys, easements, rights of way, licenses, rights of ingress and egress, vehicle parking rights and public places, existing or proposed, abutting, adjacent, used in connection with or pertaining to such real property or the improvements thereon; (ii) any strips or gores of real property between such real property and abutting or adjacent properties; (iii) all water and water rights, timber, crops, pertaining to such real property; and (iv) all appurtenances and all reversions and remainders in or to such real property.

Legal Requirements - Any and all (i) present and future judicial decisions, statutes (including PMPA and Environmental Laws), laws, rulings, rules, regulations, orders, writs, injunctions, decrees, permits, certificates or ordinances of any Governmental Authority in any way applicable to Borrower or the Mortgage Property, including, without limiting the generality of the foregoing, the ownership, use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction thereof; (ii) covenants, conditions and restrictions contained in any deeds, other forms of conveyance or in any other instruments of any nature that relate in any way or are applicable to the Mortgage Property or the ownership, use or occupancy thereof; (iii) presently or subsequently effective bylaws and articles of incorporation, operating agreement and articles of organization or partnership, limited partnership, joint venture, trust or other form of business association agreement of Borrower; and (iv) leases, above, and other contracts (written or oral), of any nature that relate in any way to the Mortgage Property and to which Borrower may be bound, including, without limiting the generality of the foregoing, any lease or other contract pursuant to which Borrower is granted a possessory interest in and to the Mortgage Property.

LIBOR Interest Period - A period of one month; provided however, (i) if any LIBOR Interest Period would end on a day which is not a Business Day, such LIBOR Interest Period shall be extended to the next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding calendar month, then on the next preceding Business Day), (ii) no LIBOR Interest Period shall extend beyond the Term Loan Maturity Date, and (iii) any LIBOR Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such LIBOR Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such LIBOR Interest Period.

LIBOR Rate Loan - The Term Loan when interest is accruing based on a rate determined by reference to the Adjusted LIBOR Rate.

LIBOR Reserve Percentage - For any day, that percentage (expressed as a decimal) which is in effect from time to time under Regulation D, as such regulation may be amended from time to time or any successor regulation, as the maximum reserve requirement (including, without limitation, any basic, supplemental, emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities as that term is defined in Regulation D (or against any other category of liabilities that includes deposits by reference to which the interest rate of the LIBOR Rate Loan is determined), whether or not Lender has any Eurocurrency liabilities subject to such reserve requirement at that time.  The LIBOR Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for proration, exceptions or offsets that may be available from time to time to Lender.  The Adjusted LIBOR Rate shall be adjusted automatically on and as of the effective date of any change in the LIBOR Reserve Percentage.

Lien - With respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset other than Permitted Encumbrances, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

Loan Documents – Collectively, this Agreement, the Term Loan Note, the Deed of Trust and all agreements, instruments and documents executed and/or delivered in connection therewith, all as may be supplemented, restated, superseded, amended or replaced from time to time.

London Interbank Offered Rate - With respect to the LIBOR Rate Loan for any LIBOR Interest Period applicable thereto, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”) as published by Bloomberg (or such other commercially available source providing quotations of BBA LIBOR as designated by Lender from time to time) at approximately 11:00 A.M. (London time) 2 Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period; provided however, if more than one BBA LIBOR Rate is specified, the applicable rate shall be the arithmetic mean of all such rates.  If, for any reason, such rate is not available, the term London Interbank Offered Rate shall mean, with respect to the LIBOR Rate Loan for the LIBOR Interest Period applicable thereto, the rate of interest per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by Lender to be the average rates per annum at which deposits in dollars are offered for such LIBOR Interest Period to major banks in the London Interbank market in London, England at approximately 11:00 A.M. (London time) 2 Business Days prior to the first day of such LIBOR Interest Period for a term comparable to such LIBOR Interest Period.

Materials of Environmental Concern - Any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes defined or regulated as such in or under any Environmental Law, including asbestos or asbestos containing materials, polychlorinated biphenyls, urea-formaldehyde insulation, explosive or radioactive substances, radon gas, infectious or medical wastes.

Material Adverse Effect - A material adverse effect on (a) the business, assets, prospects or condition, financial or otherwise, of Company and its Subsidiaries taken as a whole, or, with respect to Section 2.6(c), the DAG Entity, or (b) the rights of or benefits available to Lender under this Agreement.

Material Indebtedness - Indebtedness (other than the Term Loan), or obligations in respect of one or more Hedging Agreements, of any one or more of Company and its Subsidiaries in an aggregate principal amount exceeding $15,000,000 with respect for Indebtedness that is recourse to Company or $20,000,000, with respect to Indebtedness that is without recourse to Company.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Company or any of its Subsidiaries in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Company or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.

Minimum Interest Rate - Three and one half percent (3.5%).

Mortgage Property or Mortgage Properties - means, in each case, the Land and all buildings and improvements now or hereafter located thereon and owned by SPE Owner, and all other “Mortgaged Property”, as such term is defined in the Deed of Trust.  As used in this Agreement, the term “Mortgage Property” shall be expressly defined as meaning all or, where the context permits or requires, any part of the above and all or, where the context permits or requires, any interest therein.

Mortgage Property Litigation - Collectively, (i) the Complaint for Declaratory Injunctive Relief/Action Affecting Re Property (the “ Duncan Complaint ”) naming Duncan Services, Inc, and certain other dealers as plaintiffs (the “ Plaintiffs ”), and ExxonMobil Oil Corporation as a defendant, filed on or about September 23, 2009 in the Unites States District Court for the District of Maryland, Southern Division, which names the following Mortgage Properties (each an “ Affected Property ” or, collectively, the “ Affected Properties ”): 8850 Gorman Road, Laurel, MD; 4040 Powder Mill Road, Beltsville, MD; 6411 Coventry Way, Clinton, MD; 11055 Baltimore Blvd, Beltsville, MD; 10405 Baltimore Ave., Beltsville, MD; 8901 Central Avenue, Capitol Heights MD; 3384 Fort Meade Rd., Laurel MD; 5921 Marlboro Pike, District Heights, MD; and 6117 Baltimore Avenue, Riverdale, MD., and (ii) any other lawsuit or legal proceeding filed by any Plaintiff against Borrower and naming any of the Affected Properties.

Mortgage Property Litigation Release Payment - With respect to each Affected Property released or conveyed as a result of a full and final disposition of the Mortgage Property Litigation as described in Section 2.6(c) hereof, an amount equal to Release Amount for such Affected Property multiplied by 150%.

Multiemployer Plan - A multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Operating Income - For any applicable period, the amount by which payments made to SPE Owner under the DAG Lease during such period, or any other income from operations received by the SPE Owner during such period, exceed ordinary and customary operating expenses of the Mortgage Properties during such period.  Operating expenses of the Mortgage Properties include, without limitation, (a) management fees applicable to the Mortgage Properties  for such period in an amount not to exceed the greater of (1) the actual management fees paid over such period, or (2) the amount which is 3% of gross income (determined in accordance GAAP) of the Mortgage Properties for such period, (b) other actual ordinary and customary operating expenses of the Mortgage Properties during such period, and (c) other ordinary and customary operating expenses of the Mortgage Properties which are not incurred during the applicable period, but which recur annually, included, but not limited to, taxes and insurance premiums applicable to the Mortgage Properties.  Lender reserves the right to establish such reserves or make such adjustments to the foregoing calculation as it shall deem appropriate or necessary in the exercise of its sole and commercially reasonable discretion.  Ordinary and customary operating expenses shall not include expenses for depreciation, amortization and debt service payments and any other non-cash expenses, nor payments for capital expenditures, building improvements and tenant improvements. Operating expenses paid by the DAG Entity under the DAG Lease shall be excluded from the forgoing calculations.

NOI to Debt Service Ratio - As of any date of determination, the ratio of Net Operating Income for the most recently ended fiscal quarter to Debt Service for such fiscal quarter.

Non-consolidated Affiliate - An Affiliate of Company, in which Company, directly or indirectly through ownership of one or more intermediary entities, owns an Equity Interest but that is not required in accordance with GAAP to be consolidated with Company for financial reporting purposes.

Obligations - All existing and future debts, liabilities and obligations of every kind or nature at any time owing by Borrower to Lender or any other subsidiary of Lender or a Bank Affiliate under this Agreement, any Hedging Agreement or Interest Hedging Instrument with Lender or a Bank Affiliate or any other Loan Document, whether joint or several, related or unrelated, primary or secondary, matured or contingent, due or to become due (including debts, liabilities and obligations obtained by assignment), and whether principal, interest, fees, indemnification obligations hereunder or Expenses (specifically including interest accruing after the commencement of any bankruptcy, insolvency or similar proceeding with respect to Borrower, whether or not a claim for such post-commencement interest is allowed), including, without limitation, debts, liabilities and obligations in respect of the Term Loan and any extensions, modifications, substitutions, increases and renewals thereof; any amount payable by Borrower or any Subsidiary of Borrower pursuant to an Interest Hedging Instrument; and all Expenses incurred by Lender or any other subsidiary of Lender or a Bank Affiliate, together with other debts, liabilities or obligations owing to Lender or any other subsidiary of Lender or a Bank Affiliate in connection with any lockbox, cash management, or other services (including electronic funds transfers or automated clearing house transactions) provided by Lender or any other subsidiary of Lender or a Bank Affiliate to Borrower.

Other Taxes - means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.

PBGC - The Pension Benefit Guaranty Corporation.

Permitted Encumbrances - Any of the following:

(a)           Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 6.4;

(b)           carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in compliance with Section 6.4;

(c)            pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations or to secure liabilities to other insurance carrier;

(d)           deposits to secure the performance of bids, trade contracts, leases, statutory obligations, purchase contracts, construction contracts, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

(e)           judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Section 8.1;

(f)           (i) with respect to any Property (including, but not limited to, the Mortgage Properties), easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Company or any of its Subsidiaries; and (ii) with respect to any Mortgaged Property, any matter listed or described in the owner’s title insurance policies of Borrower provided by SPE Owner to Lender prior to the date hereof;

(g)           Liens for purchase money obligations for equipment (or Liens to secure Indebtedness incurred within 90 days after the purchase of any equipment to pay all or a portion of the purchase price thereof or to secure Indebtedness incurred solely for the purpose of financing the acquisition of any such equipment, or extensions, renewals, or replacements of any of the foregoing for the same or lesser amount); provided that (i) the Indebtedness secured by any such Lien does not exceed the purchase price of such equipment, (ii) any such Lien encumbers only the asset so purchased and the proceeds upon sale, disposition, loss or destruction thereof, and (iii) such Lien after giving effect to Indebtedness secured thereby, does not give rise to an Event of Default;

(h)           (x) Liens and judgments which have been or will be bonded (and the Lien on any cash or securities serving as security for such bond) or released of record within thirty (30) days after the date such Lien or judgment is entered or filed against Company or any of its Subsidiaries, or (y) Liens which are being contested in good faith by appropriate proceedings for review and in respect of which there shall have been secured a subsisting stay of execution pending such appeal or proceedings and as to which the subject asset is not at risk of forefeiture;

(i)           Liens on Property of Company or its Subsidiaries securing Indebtedness which may be incurred or remain outstanding without resulting in an Event of Default hereunder;

(j)           Liens in favor of Company or any Subsidiary of Company against any asset of Company or any Subsidiary or Non-consolidated Affiliate of Company;

(k)           Leases that are not Capital Leases; and

(l)           Liens or other encumbrances of tenants of Company or its Subsidiaries.

Permitted Investments - Any of the following:

(a)           owning, leasing and operating gasoline station or convenience store properties, and related petroleum distribution terminals, and other retail real property and other related business activities, including the creation or acquisition of any interest in any Subsidiary (or entity that following such creation or acquisition would be a Subsidiary), for the purpose of owning, leasing and operating gasoline station or convenience store properties, and related petroleum distribution terminals, and other retail real property, and other related business activities;

(b)           acquisitions of mortgages, provided that the aggregate amount of all such investments in mortgages shall not exceed five percent (5%) of the Total Asset Value;

(c)           investments in unimproved land, provided that the aggregate amount of all such investments in unimproved land shall not exceed five percent (5%) of the Total Asset Value;

(d)           investments in marketable securities traded on the New York Stock Exchange (NYSE), the American Stock Exchange (AMEX) or NASDAQ (National Market System Issues only), provided that the aggregate amount of such investments shall not exceed five percent (5%) of the Total Asset Value;

(e)           investments in Non-consolidated Affiliates (excluding marketable securities described in clause (d) above), provided that the aggregate amount of such investments shall not exceed ten percent (10%) of the Total Asset Value; and

(f)           investments in real property under development (i.e., a property which is being developed for which a certificate of occupancy has not been issued), provided that the aggregate amount of all such investments in development property shall not exceed ten percent (10%) of the Total Asset Value.

Person - Any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan - Any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

PMPA - The Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq.

Principal Officer - The President, the Chief Executive Officer, the Chief Financial Officer, the Controller or a Vice President of Company or SPE Owner.

Property or Properties - The real property, including the Mortgage Properties, owned by Company and/or any of its Subsidiaries, or in which Company or any of its Subsidiaries has a leasehold interest.

Purchase and Sale Agreement - That certain Agreement of Purchase and Sale dated December 12, 2008, between Seller and DAG Enterprises, Inc., pursuant to which Seller agreed to sell and DAG Enterprises, Inc. agreed to purchase certain property, including but not limited to, the Mortgage Properties, as such agreement has been amended and assigned.

Qualified Real Estate Assets - Any Property that is (a) either (i) wholly owned, (ii) ground leased under an Eligible Ground Lease by Company and its Subsidiaries or (iii) an Eligible Leasehold Property; (b) is not subject to any liens other than Permitted Encumbrances or, other than with respect to any Eligible Leasehold Property, to any agreement that prohibits the creation of any lien thereon as security for indebtedness of Company, (c) other than with respect to an Eligible Leasehold Property, is not subject to any agreement, including the organizational documents of the owner of the asset, which limits, in any way, the ability of Company to create any lien thereon as security for indebtedness, (d) is free from material structural defects and material title defects and (e) except for those properties leased by Company to Getty Petroleum Marketing Inc. or any affiliate of GPM Investments, LLC, is free from any material environmental condition that impairs, in any material respect, the operation and use of such premises for its intended purpose.

Recording Event - The occurrence of an Event of Default under this Agreement or the occurrence of a Material Monetary Default, as such term is defined in the GPMI Lease.

Release Amount - With respect to any Mortgage Property, amount set forth on the Schedule of Release Amounts attached hereto.

Release Payment - With respect to any Mortgage Property to be released pursuant to Section 3.2, an amount equal to the Release Amount multiplied by 125%.

Regulation D - Regulation D of the Board comprising Part 204 of Title 12, Code of Federal Regulations, as amended, and any successor thereto.

Requirement of Law – As to any Person, each law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

SEC - The Securities and Exchange Commission.

Secured Indebtedness - All Indebtedness of Company and its Subsidiaries which is secured by a Lien on any Properties including the Term Loan, from and after the occurrence of a Recording Event or conversion to the Secured Loan.

Secured Loan Maturity Date - From the Conversion Date, at the election of SPE Owner, a date that is either 5 or 7 years from the Conversion Date.

Secured Recourse Indebtedness - All Secured Indebtedness except Indebtedness with respect to which recourse for payment is contractually limited (except for customary exclusions) to the specific Property encumbered by the Lien securing such Indebtedness and other than Indebtedness fully collateralized by cash or Cash Equivalents and recourse is limited to such cash or Cash Equivalents.

Seller - ExxonMobil Oil Corporation, a New York corporation, and ExxonMobil Corporation, a New Jersey corporation.

Subsidiary - means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.  For all purposes under this Agreement, SPE Owner shall be considered, in all respects, a Subsidiary of Company.

Subsidiary Indebtedness - All Indebtedness of the Subsidiaries of the Company owing to Persons other than Company or any other Subsidiary of Company, which Indebtedness is not secured by a Lien on any income, Capital Stock, property or other asset of a Subsidiary of Company, including, the Indebtedness of SPE Owner in connection with the Term Loan.

Tangible Net Worth - The sum of the shareholders’ equity of Company and its Subsidiaries minus goodwill, trademarks, tradenames, licenses and other intangible assets (as shown on the balance sheet of Company), as determined on a consolidated basis in accordance with GAAP.

Taxes or Tax - Any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

Term Loan - As defined in Section 2.1(a).

Term Loan Maturity Date - September 25, 2012.

Term Loan Note - As defined in Section 2.1 (b).

Term Loan Closing Fee - As defined in Section 2.5(a).

Title Company - Stewart Title Guaranty Company or such other national title company, licensed to operate in the State of Maryland, selected by Borrower and acceptable to Lender in its reasonable discretion.

Title Insurance - One or more title insurance commitments, binders or policies, as Lender may reasonably require, issued by the Title Company, on a coinsurance or reinsurance basis (with direct access endorsement or rights) if and as reasonably required by Lender, in the maximum amount of the Loan insuring or committing to insure that the Deed of Trust constitutes a valid first lien covering the applicable Mortgage Property and the improvements thereon, subject only to the exceptions listed thereon and agreed to by Lender in its sole discretion.

Total Asset Value - As of any relevant date, the sum of, without duplication, (i) for Properties owned or leased for one full quarter or more, the quotient obtained by dividing (a) EBITDA for such Properties for the most recently concluded fiscal quarter multiplied by 4 by (b) 10.50%, (ii) for Properties owned or leased for less than one full quarter, the cost of such Properties, including the cost of capital expenditures actually incurred in connection with such Properties, (iii) Unrestricted Cash and Cash Equivalents of Company and its consolidated Subsidiaries as of such date, (iv) investments in Non-consolidated Affiliates, valued at an amount equal to (a) EBITDA received by Company from such Non-consolidated Affiliates for the most recently concluded fiscal quarter multiplied by 4, divided by (b) 10.50%, (v) investments in marketable securities, valued at the lower of “cost” or “market”, (vi) investments in land and development properties, valued at “cost” and (vi) the book value of notes and mortgages receivable.

Total Indebtedness - As of the date of determination, all Indebtedness of Company and its Subsidiaries outstanding on such date.

Total Liabilities - For any Person, all liabilities which would be classified as liabilities on a consolidated balance sheet of such person and its Subsidiaries in accordance with GAAP, all guarantees and contingent obligations (excluding terminal indemnifications or litigation which Company is not required to accrue as a liability under GAAP) of such person and its Subsidiaries including, but not limited to, letters of credit, net obligations arising under Hedging Agreements (to the extent required to be reflected on the balance sheet of such Person, in accordance with GAAP), forward equity commitments, obligations to pay the deferred purchase price of property and the pro rata share of indebtedness of Non-consolidated Affiliates.

Total Secured Indebtedness - As of any date of determination, the aggregate of: (a) Indebtedness of Company and its Subsidiaries outstanding as of such date, secured by a Lien on any asset of Company and its Subsidiaries, and (b) all Subsidiary Indebtedness outstanding as of such date.

Total Unsecured Indebtedness - As of the date of determination, all Indebtedness of Company and its Subsidiaries (excluding Subsidiary Indebtedness) which is not secured by Lien on any income, Capital Stock, property or other asset of Company and its Subsidiaries.

Transactions -  The borrowing of the Term Loan by Borrower hereunder.

Unencumbered Asset Value - With respect to the Qualified Real Estate Assets, the sum of (a) for Properties owned or leased for at least one full calendar quarter, the quotient obtained by dividing (i) EBITDA for such Properties for the most recent quarter multiplied by 4, by (ii) 10.5% and (b) for such Properties acquired during the calendar quarter, the cost of such Properties, including the cost of capital expenditures actually incurred in connection with such Properties. In determination of Unencumbered Asset Value, properties under Eligible Ground Leases (exclusive of any Property  that is an Eligible Leasehold Property) shall be limited to maximum of 10% of Unencumbered Asset Value.

Unrestricted Cash and Cash Equivalents - At any date of determination, the sum of: (a) the aggregate amount of unrestricted cash then held by Company or any of its Subsidiaries, plus (b) the aggregate amount of unrestricted Cash Equivalents (valued at fair market value) then held Company or any of its Subsidiaries, plus (c) the aggregate amount of cash or Cash Equivalents in restricted 1031 accounts for the benefit of Company. As used in this definition, “Unrestricted” means, with respect to any asset, the circumstance that such asset is not subject to any Liens or claims of any kind in favor of any Person.

Unsecured Debt Service Coverage Ratio - As of the date of determination, the ratio of (a) EBITDA from Qualified Real Estate Assets, for the most recently ended fiscal quarter to (b) the sum of all interest incurred (accrued, paid or capitalized) plus all regularly scheduled principal payments with respect to Total Unsecured Indebtedness (excluding optional prepayments and balloon principal payments due on maturity in respect of any Indebtedness) paid during such fiscal quarter, all determined on a consolidated basis in accordance with GAAP.

Withdrawal Liability - Liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

1.2.            Accounting Principles .  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if Company or SPE Owner notifies Lender that Company or SPE Owner requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if Lender notifies Company or SPE Owner that Lender requests an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

1.3.            Construction .  No doctrine of construction of ambiguities in agreements or instruments against the interests of the party controlling the drafting shall apply to any Loan Documents.

2.1.            Term Loan .

a.        Lender hereby agrees to advance to Borrower, subject to the terms and conditions of this Agreement, the sum of TWENTY FIVE MILLION AND NO/100 DOLLARS ($25,000,000) (the “ Term Loan ”).

b.        At Closing, Borrower shall execute and deliver a promissory note to Lender in the original principal amount of the Term Loan (the “ Term Loan Note ”).  The Term Loan Note shall evidence Borrower’s unconditional obligation to repay to Lender the Term Loan with interest as herein provided. The Term Loan Note shall be in form and substance satisfactory to Lender.

c.        Beginning on November 2, 2009, and continuing on the first day of each calendar month thereafter until the Term Loan Maturity Date, the principal balance of the Term Loan shall be paid in thirty-six (36) equal and consecutive monthly installments of principal of $65,000 each.  A final installment of all unpaid principal and all accrued and unpaid interest outstanding under the Term Loan shall be due and payable on the Term Loan Maturity Date.

2.2.         Payments .

a.        Except to the extent otherwise set forth in this Agreement (or in the case of an Interest Hedging Instrument under the applicable agreements), all payments of principal and of interest on the Term Loan   and all Expenses, fees, indemnification obligations and all other charges and any other Obligations of Borrower, shall be made to Lender at its banking office, 2070 Chain Bridge Road,  Suite 145, Vienna, Virginia 22182,  in United States dollars, in immediately available funds.  Lender shall have the unconditional right and discretion (and Borrower hereby authorizes Lender) to charge Borrower’s operating and/or deposit account(s) for all of Borrower’s Obligations as they become due from time to time under this Agreement including, without limitation, interest, principal, fees, indemnification obligations and reimbursement of Expenses.  Any payments received prior to 2:00 p.m. Eastern time on any Business Day shall be deemed received on such Business Day.  Any payments (including any payment in full of the Obligations), received after 2:00 p.m. Eastern time on any Business Day shall be deemed received on the immediately following Business Day.

2.3.         Interest .

a.        The unpaid principal balance of the Term Loan shall bear interest at a per  annum rate equal to the greater of (i) Adjusted LIBOR Rate plus the Applicable Margin and (ii) the Minimum Interest Rate.

b.        Beginning on November 2, 2009, and continuing on the first Business Day of each calendar month thereafter until the Term Loan Maturity Date, Borrower shall pay interest on the Term Loan at the rate specified in Section 2.3(a).

c.        Interest shall begin to accrue on the Term Loan on the date on which Lender deposits the proceeds thereof in escrow with the Title Company

2.4.         Additional Interest Provisions .

a.        Interest on the Term Loan shall be calculated on the basis of a year of three hundred sixty (360) days but charged for the actual number of days elapsed.

b.        After the occurrence and during the continuance of an Event of Default hereunder, the per annum effective rate of interest on all outstanding principal under the Term Loan, shall be increased by three hundred (300) basis points.  All such increases may be applied retroactively to the date of the occurrence of the Event of Default.  Borrower agrees that the default rate payable to Lender is a reasonable estimate of Lender’s damages and is not a penalty.

c.        All contractual rates of interest chargeable on outstanding principal under the Term Loan shall continue to accrue and be paid even after Default, an Event of Default, maturity, acceleration, judgment, bankruptcy, insolvency proceedings of any kind or the happening of any event or occurrence similar or dissimilar.

d.        In no contingency or event whatsoever shall the aggregate of all amounts deemed interest hereunder and charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto.  In the event that such court determines Lender has charged or received interest hereunder in excess of the highest applicable rate, Lender shall apply, in its sole discretion, and set off such excess interest received by Lender against other Obligations due or to become due and such rate shall automatically be reduced to the maximum rate permitted by such law.

2.5.         Fees and Charges .

a.        At Closing, Lender shall have fully earned and Borrower shall unconditionally pay to Lender a non-refundable fee with respect to the Term Loan (“ Term Loan Closing Fee” ) of One Hundred Twenty Five Thousand Dollars ($125,000), less amounts previously paid thereon.

b.        Borrower shall unconditionally pay to Lender a late charge equal to five percent (5%) of any and all payments of principal or interest on the Term Loan that is not paid within fifteen (15) days of the due date.  Such late charge shall be due and payable regardless of whether Lender has accelerated the Obligations.  Borrower agrees that any late fee payable to Lender is a reasonable estimate of Lender’s damages and is not a penalty.

2.6.         Prepayments .

a.        Borrower may prepay the Term Loan   in whole or in part at any time or from time to time, without penalty or premium except as provided herein, provided that (i) any such prepayments are in a minimum amount of $500,000 and (ii) any prepayment shall be accompanied by all accrued and unpaid interest.  Any partial prepayment of the Term Loan shall be applied to the Term Loan in the inverse order of maturity.

b.        Notwithstanding the provisions of Section 2.6(a), any prepayment of the Term Loan, shall, if such prepayment is the result of any refinancing of the Term Loan by any lender or other party other than Lender, be accompanied by a fee equal to: (i) the amount of principal prepaid, multiplied by 1.5% if such prepayment is made within the first 12 months after the Closing Date; (ii) the amount of principal prepaid, multiplied by 1% if such prepayment is made more than 12 months after the Closing Date and less than 24 months after the Closing Date; and (iii) the amount of principal prepaid, multiplied by 0.5%, if such prepayment is made more than 24 months after the Closing Date and less than 30 months after the Closing Date.  Notwithstanding the foregoing, Borrower shall have the right to prepay the Term Loan, in whole or in part, at any time and from time to time, without payment of any amounts described in this subsection (b) or any other penalty or premium: (1) if the rate of interest payable in connection with this loan is converted from the Adjusted LIBOR Rate to the Base Rate pursuant to this Article II, and for so long as the rate of interest continues to be the Base Rate; and (2) in connection with any Partial Release.

c.        If the full and final disposition of the Mortgage Property Litigation by a court of competent jurisdiction results in any Affected Property (i) being released from the lien Deed of Trust and/or (ii) having to be conveyed by SPE Owner to any third party, then Borrower shall repay the Term Loan in an amount equal to the Mortgage Property Litigation Release Payment for each such Affected Property.  In addition, if Lender determines that the final disposition of the Mortgage Property Litigation by a court of competent jurisdiction has a Material Adverse Effect on the ability of the DAG Entity to comply with its obligations under or pursuant to the DAG Lease, and such Material Adverse Effect is reasonable likely to cause an Event of Default under Section 7.2 of this Agreement, Lender shall have the right to give written notice to Borrower requiring prepayment of the Term Loan in full, and Borrower shall make such prepayment in full, without premium or penalty, within 45 days after it receives such notice.

2.7.            Use of Proceeds .  The proceeds of the Term Loan shall be used to fund up to fifty (50%) of the costs of Borrower’s acquisition of the Mortgage Properties.

2.8.            Capital Adequacy .  If there is a change in any present law, governmental rule, regulation, policy, guideline, directive or similar requirement (whether or not having the force of law) or any such law, governmental rule, regulation, policy, guideline, directive or similar requirement is enacted after the date hereof, that imposes, modifies, or deems applicable any capital adequacy, capital maintenance or similar requirement which affects the manner in which Lender allocates capital resources to its commitments (including any commitments hereunder but excluding any requirement reflected in the Adjusted LIBOR Rate), and as a result thereof, in the reasonable opinion of Lender, the rate of return on Lender’s capital with regard to the Term Loan is reduced to a level below that which Lender could have achieved but for such circumstances, then in such case and upon written notice from Lender to Borrower, from time to time, Borrower shall pay Lender such additional amount or amounts as shall compensate Lender for such reduction in Lender’s rate of return.  Such notice shall contain the statement of Lender with regard to any such amount or amounts which shall, in the absence of manifest error, be binding upon Borrower.  In determining such amount, Lender may use any reasonable method of averaging and attribution that it deems applicable.

2.9.            Funding Indemnity .  Borrower shall indemnify Lender, and hold Lender harmless from any loss, damages, liability, or expense which Lender may sustain or incur as a consequence of the making of a prepayment of the LIBOR Rate Loan on a day which is not the last day of a LIBOR Interest Period with respect thereto.  With respect to the LIBOR Rate Loan, such indemnification shall equal the excess, if any, of (i) the amount of interest which would have accrued on the amount so prepaid for the period from the date of such prepayment until the end of the applicable LIBOR Interest Period at the applicable rate of interest for the  LIBOR Rate Loan provided for herein over (ii) the amount of interest (as reasonably determined by Lender) which would have accrued to Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the London interbank Eurodollar market. This covenant shall survive the termination of this Agreement, and the payment of the Obligations.

2.10.            Inability to Determine Interest Rate .   Notwithstanding any other provision of this Agreement, if Lender shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, (i) by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining the Adjusted LIBOR Rate for a LIBOR Interest Period, or (ii) the Adjusted LIBOR Rate does not adequately and fairly reflect the cost to Lender of funding or maintaining the LIBOR Rate Loan during a LIBOR Interest Period, Lender shall notify Borrower and thereafter will have no obligation to make, fund or maintain the LIBOR Rate Loan, and thereafter the LIBOR Rate Loan shall bear interest at the Base Rate, with the interest rate being adjusted simultaneously with any change in the Base Rate.

2.11.            Illegality .  Notwithstanding any other provision of this Agreement, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof to Lender by the relevant Governmental Authority shall make it unlawful for Lender to make or maintain the LIBOR Rate Loan as contemplated by this Agreement, or to obtain in the interbank Eurodollar market, the funds with which to make or maintain the Libor Rate Loan, (a) Lender shall promptly notify Borrower thereof, (b) the commitment of Lender hereunder to continue the LIBOR Rate Loan shall forthwith be suspended until Lender shall give notice that the condition or situation which gave rise to the suspension shall no longer exist, and (c) the LIBOR Rate Loan shall be converted on the last day of the current LIBOR Interest Period, or within such earlier period as required by law, to a Base Rate Loan.  Borrower hereby agrees promptly to pay Lender, upon its demand, any additional amounts necessary to compensate Lender for actual and direct costs (but not including anticipated profits) reasonably incurred by Lender in connection with any repayment in accordance with this Section 2.11, including but not limited to, any interest or fees payable by Lender to lenders of funds obtained by it in order to make or maintain the LIBOR Rate Loan hereunder. A certificate as to any additional amounts payable pursuant to this Section 2.11 submitted by Lender, to Borrower shall be presumptive evidence of such amounts owing.  Lender agrees to use reasonable efforts to avoid or to minimize any amounts which may otherwise be payable pursuant to this Section 2.11; provided however, that such efforts shall not cause the imposition on Lender of any additional costs or legal or regulatory burdens deemed by Lender in its reasonable discretion to be material.

2.12.            Requirements of Law.

a.        If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:

i.           shall subject Lender to any tax of any kind whatsoever with respect to the LIBOR Rate Loan made by it, or change the basis of taxation of payments to Lender in respect thereof (except for changes in the rate of tax on the overall net income of Lender);

ii.           shall impose, modify, or hold applicable, any reserve, special deposit, compulsory loan, or similar requirement against assets held by, deposits or other liabilities in, or for the account of, advances, loans, or other extension of credit (including participations therein) by, or any other acquisition of funds by, any office of Lender which is not otherwise included in the determination of the LIBOR Rate hereunder; or

iii.           shall impose on such Lender any other condition;

and the result of any of the foregoing is to materially increase the cost to Lender of making or maintaining the LIBOR Rate Loan, or to materially reduce any amount receivable hereunder, or under the Term Loan or the Term Loan Note, then, in any such case, Borrower shall promptly pay Lender, upon its demand, any additional amounts necessary to compensate Lender for such additional costs or reduced amount receivable which Lender reasonably deems to be material as determined by Lender, with respect to the LIBOR Rate Loan.  A certificate as to any additional amounts payable pursuant to this Section 2.12 submitted by Lender to Borrower shall be presumptive evidence of such amounts owing.  Lender agrees to use reasonable efforts to avoid, or to minimize, any amounts which might otherwise be payable pursuant to this Section 2.12; provided however, that such efforts shall not cause the imposition on Lender of any additional costs or legal regulatory burdens deemed by Lender in good faith to be material.

The agreements in this Section 2.12 shall survive the termination of this Agreement and payment of the Obligations.

2.13.            Taxes.

a.        Any and all payments by or on account of any obligation of Borrower hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then

i.        the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Lender receives an amount equal to the sum it would have received had no such deductions been made,

ii.        Borrower shall make such deductions, and

iii.        Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.

b.        In addition, Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

c.        Borrower shall indemnify Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by Lender on or with respect to any payment by or on account of any obligation of Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, provided, that, as to penalties, interest or expenses relating to Indemnified Taxes or Other Taxes, Lender has provided reasonably prompt notice to Borrower after any officer of Lender first becomes aware of such Indemnified Taxes or Other Taxes, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by Lender shall be conclusive absent manifest error.

d.        As soon as practicable after any payment of Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall deliver to Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Lender.

e.        If Lender determines, in its reasonable good faith discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to this Section 2.13, it shall pay over such refund to Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this Section 2.13 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that Borrower, upon the request of Lender, agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority to the extent imposed due to any act or failure to act on the part of Borrower) to Lender in the event Lender is required to repay such refund to such Governmental Authority. This Section shall not be construed to require Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to Borrower or any other Person.

3.1.            Recordation; Requirements after a Recording Event.   Upon the occurrence and during the continuance of a Recording Event, Lender shall have the right, in its sole discretion, to (A) order appraisals, at Borrower’s expense, of each of the Mortgaged Properties, and (B) record the Deed of Trust (if not already recorded by Borrower) in the appropriate land records.  In addition, after a Recording Event, Borrower shall, within thirty (30) days after a demand therefor, deliver to Lender:

a.        to the extent not already delivered to Lender, one or more current surveys of the Mortgaged Properties, prepared by a registered surveyor or engineer and certified to Lender, Borrower and the Title Company, in form and substance acceptable to Lender, showing all easements, building or setback lines, rights of way and dedications affecting the Land and showing no state of facts which would have an adverse effect on the value of the Mortgaged Properties;

b.        evidence reasonably satisfactory to Lender showing the availability of all necessary utilities at the boundary lines of the Land, including sanitary and storm sewer facilities, potable water, telephone, electricity, gas and municipal services;

c.        evidence that the current and proposed use of the Mortgage Properties complies with all Legal Requirements, including but not limited to copies of any and all (i) certificates of occupancy, (ii) special use permits, (iii) beer/wine/liquor permits, and (iv) petroleum handling and other related permits;

d.        evidence, which shall include any zoning reports received by Borrower with respect to the Mortgage Property and any zoning confirmation letters received from the cities in which the Mortgage Property is located, that all applicable zoning ordinances and restrictive covenants affecting the Land permit the use for which the improvements thereon are intended and have been or will be complied with;

e.        one or more Phase I Environmental Site Assessment Reports with respect to the Mortgage Property prepared by a firm of engineers approved by Lender, which report shall be satisfactory in form and substance to Lender, and if required by Lender one or more Phase II Environmental Site Assessment Reports, expanded Phase II Environmental Site Assessment Reports, a Phase II Site Remediation Reports and copies of all testing results with respect to any of the Mortgage Property and any and all other environmental due diligence received or reviewed by Purchaser or Borrower in connection with its purchase of the Mortgage Property;

f.        certificates or other evidence showing that Borrower has obtained the insurance required by the Deed of Trust (or that the DAG Entity under the DAG Lease has procured the insurance required thereby) and the other Loan Documents;

g.        copies of any and all Contracts in effect at the Mortgage Properties including but not limited to any Contracts relating to maintenance and landscaping, utilities, parking agreements, personal property leases, joint use agreements, option agreements, or any other service or maintenance contracts;

h.        a full size, single sheet copy of all recorded subdivision or plat maps of the Land approved (to the extent required by Legal Requirements) by all Governmental Authorities, if applicable, and legible copies of all instruments representing exceptions to the state of title to the Mortgage Properties;

i.        the Title Insurance, which shall be at the sole expense of Borrower;

j.        payment of all of Lender’s attorneys’ fees, closing costs, taxes (including, without limitation, recordation tax for filing of the Deed of Trust and any financing statements perfecting the security interests created thereby) and recordation costs.

If Borrower elects to record the Deed of Trust prior to a Recording Event, then, notwithstanding anything contained herein to the contrary, SPE Owner shall have the right, so long as no Recording Event has occurred and is continuing and the Term Loan has not been converted to the Secured Loan, to request, in writing, that Lender release the Deed of Trust on one or more of the Mortgage Properties from the applicable land records, provided that such written request shall contain a certification from a Principal Officer of SPE Owner that no Recording Event has occurred and is continuing.  After receipt of the request and certification described above, Lender agrees to release any such applicable Deed of Trust and will use commercially reasonable efforts to cause such release to be delivered to SPE Owner within 10 Business Days provided that (i) Borrower pays all costs associated with such removal, and (ii) prior to such removal, Borrower shall deliver to Lender as many additional fully executed and notarized Deeds of Trust as may be required by Lender.

3.2.            Partial Release.   Lender shall consent to the sale or other transfer one or more of the individual gas station sites which comprise the Mortgage Properties together with the improvements thereon (hereinafter whether one or more, a “ Release Lot ”), and if the Deed of Trust has been and continues to be recorded in the applicable land records, a release of the Release Lot from the lien of the Deed of Trust (each a “ Partial Release ”) upon the satisfaction of each and every of the following conditions precedent (singularly and collectively referred to as a “ Partial Release Condition ”):

c.        The Partial Release shall only be permitted in conjunction with a sale of the Release Lot to a third-party who is not an Affiliate or Subsidiary of Borrower or Company and such sale shall be evidenced by a written agreement;

d.        Borrower shall, simultaneously with the completion of the Partial Release of the Release Lot, make a mandatory prepayment of the Term Loan in an amount equal to the applicable Release Payment for such Release Lot;

e.        Such Partial Release shall not constitute a Material Adverse Effect;

f.        Borrower shall sell or otherwise transfer the Release Lot to another party such that Borrower retains no ownership interest in, or liabilities or obligations with respect to, such Release Lot other than the customary post closing obligations in a purchase and sale agreement;

g.        Borrower shall deliver to Lender a copy of any proposed sales contract showing the sales price and the anticipated closing date, together with a schedule (certified as true and complete by Borrower) setting forth all of commissions and other closing costs.  If the Deed of Trust is recorded in the applicable land records at the time of the Partial Release, Borrower also shall deliver to Lender (at Borrower’s expense) (i) an updated title report or commitment (issued by the Title Company) reflecting that no additional title matters cover the portions of the Mortgage Property not released, other than the title matters set forth in the title insurance policy (the “ Title Policy ”) issued by such Title Company and delivered and accepted by Lender in conjunction with the funding of the Term Loan and any other title matters that would not, in the aggregate, have a Material Adverse Effect, and (ii) an endorsement to the Title Policy bringing the date of the Title Policy to the date of the Partial Release and evidencing the continued first lien priority of the Deed of Trust (and with no such additional title matters);

h.        Borrower shall submit a prepared partial release instrument (the “ Partial Release Instrument ”) which must be deemed reasonably satisfactory to Lender, and any information necessary for Lender to process the Partial Release Instrument, including a lot and block or metes and bounds description of the Release Lot, the name and address of the title insurance company, if any, to whose attention the Partial Release Instrument should be directed, numbers that reference the Partial Release Instrument (i.e., tax parcel numbers, title company order numbers, release numbers, etc.), the date when the Partial Release is to become effective, and such other documents and information as Lender may reasonably request in order to process the Partial Release request.  The Partial Release Instrument shall be delivered and recorded in accordance with Lender’s escrow requirements, requiring delivery of the Release Payment to Lender prior to delivery and (if the Deed of Trust is recorded in the applicable land records at the time of the Partial Release) recordation of the Partial Release Instrument and the satisfaction of all Partial Release Conditions.  In no event shall the execution and delivery of a Partial Release Instrument affect any of Lender’s obligations under the Loan Documents; and

i.        All reasonable costs and expenses incurred by Lender in connection with the review, approval and execution of any Partial Release shall be paid by Borrower prior to and as a condition of the execution of any Partial Release Instrument, including (but not limited to), all costs incurred in connection with the Release Payment, reasonable attorneys’ fees, all costs and expenses of Lender incurred in connection with obtaining the endorsement to the Title Policy.  All recording fees and taxes with respect to the Partial Release are to be paid by Borrower or the applicable purchaser, as may be allocated in accordance with the applicable purchase agreement.

3.3.            Conversion Option .  Subject to the conditions contained in this Section 3.3, Borrower shall have the right, within 90 days from the Closing Date, to convert the Term Loan into a secured term loan (the “ Secured Loan ”; after the Conversion (as defined below) of the Term Loan to the Secured Loan, each reference in this Agreement and the other Loan Documents to the term “Term Loan” shall thereafter be deemed a reference to the “Secured Loan”).  The conversion of the Term Loan into the Secured Loan (the “ Conversion ”) may only occur if, as of the Conversion Date, (i) no Event of Default has occurred and is continuing, (ii) Lender has ordered and received appraisals on each of the Mortgage Properties which evidence, in the determination of Lender, that the Conversion LTV has been satisfied, (iii) all of the requirements of Section 3.1 are satisfied, and (iv) Lender has received all resolutions, consents and certificates it requires, in its sole but reasonable discretion, relating to the Conversion ((i)-(iv) collectively, the “ Conversion Conditions ”).  If the Conversion Conditions have been satisfied, the Conversion will be evidenced and documented by amending or modifying this Agreement and any other Loan Document as Lender may require (the “ Conversion Documents ”) to incorporate the following terms and conditions in form and substance acceptable to Lender:

a.        The maturity date of the Secured Loan shall be the Secured Loan Maturity Date, as selected by Borrower prior to the Conversion Date;

b.        The unpaid principal balance of the Secured Loan shall bear interest at a per  annum rate equal to the greater of (i) Adjusted LIBOR Rate plus the Conversion Margin and (ii) the Minimum Interest Rate;

c.        The joint and several personal liability for repayment of the Secured Loan by  Company and Getty Properties shall be limited to only the following (i) repayment of principal up to $12,500,000, plus (ii) accrued and unpaid interest thereon, and (iii) all costs of collection with respect thereto;

d.        Substitutions of Mortgage Properties for Property substituted pursuant to the DAG Lease, provided that such substituted Property is acceptable to Lender in its sole but reasonable discretion;

e.        The Secured Loan shall be secured by the Deed of Trust on each of the Mortgage Properties and by a first priority security interest in (A) all the assets of SPE Owner, and (B) a pledge of all of the stock of the SPE Owner by Company; and

f.        The Title Company insures without exception for the Mortgage Property Litigation, to the satisfaction of Lender in its reasonable discretion, the first priority lien of the Deed of Trust encumbering each Mortgage Property subject to the Mortgage Property Litigation.

Closing under this Agreement is subject to the following conditions precedent (all instruments, documents and agreements to be in form and substance satisfactory to Lender and Lender’s counsel):

4.1.            Resolutions, Opinions, and Other Documents .  SPE Owner and Company, as applicable, shall have delivered, or caused to be delivered to Lender the following:

a.        this Agreement, the Term Loan Note and each of the other Loan Documents all properly executed, notarized or acknowledged as appropriate;

b.        (i) certified copies of resolutions of SPE Owner’s and Company’s   board of directors’ or managing members (as applicable) authorizing the execution, delivery and performance of this Agreement, the Term Loan Note and each of the other Loan Documents to which each is a party required to be delivered by any Section hereof, (ii) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of SPE Owner and Company, (iii) a certificate of incumbency for the officers of SPE Owner and Company executing the Loan Documents or any certificates related thereto, (iv) a good standing certificate, dated not more than 30 days prior to the Closing Date, from the appropriate state official of any state in which SPE Owner and Company are incorporated or qualified to do business (other than, with respect to the latter, for any jurisdiction where the failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect), and (v) such additional supporting documents as Lender or counsel for Lender reasonably may request.

c.        a written opinion of Company’s in-house counsel addressed to Lender and opinions of such other counsel as Lender deems reasonably necessary;

d.        such financial statements, reports, certifications and other operational information of SPE Owner and Company as Lender may reasonably require, satisfactory in all respects to Lender;

e.        certification by the Chief Financial Officer of Company that there has not occurred any material adverse change in the operations and condition (financial or otherwise) of Company since June 30, 2009;

f.        such  financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the Mortgage Properties and Lender shall have received duly executed and enforceable payoff letters from the holders of any Liens containing provisions for the termination of such Liens acceptable to Lender;

g.        the final, duly executed Purchase and Sale Agreement, which shall be acceptable to Lender in its sole discretion, and shall provide for a purchase price of not more than $51,000,000;

h.        SPE Owner’s five (5) year operating projection (including income and expenses) with respect to the Mortgage Properties, which shall be acceptable to Lender in its sole discretion;

i.        evidence that there is no litigation pending with respect to SPE Owner or Company that could reasonably be expected to have a Material Adverse Effect;

j.        the final, duly executed DAG Lease providing for annual rent, on a triple net basis, of not less than $5,400,000;

k.        copies of all title reports, surveys, environmental reports, remediation agreements, environmental insurance policies, zoning reports, certificates of occupancy, permits, licenses, Contracts, dealer agreements, supply agreements, distribution agreements and any other such certificates, reports, studies or documents relating to the ownership, leasing and operation of the Mortgage Property and/or SPE Owner’s acquisition thereof obtained by SPE Owner or Company in connection with the purchase of the Mortgage Properties and the leasing thereof to DAG;

l.        evidence of all insurance required to be maintained by Borrower pursuant to the Loan Documents, which shall be acceptable to Lender in its sole discretion;

m.        a copy of the final executed Klienfelder Agreement;

n.        evidence that environmental liability insurance providing insurance on a “claims made basis” (as opposed to an “occurrence basis”) against liability for third-party bodily injury and property damage for pre-existing and new conditions on- and off-site and clean-up of unknown pre-existing conditions and new conditions on- and off-site with respect to the Mortgage Properties, with limits of liability no less than the amounts set forth in the environmental insurance policy or certificates obtained by Borrower and approved by Lender as of the date hereof, copies of which have been provided to Lender, has been obtained; and

o.        such other documents reasonably required by Lender.

4.2.            Absence of Certain Events .  At the Closing Date, no Default or Event of Default hereunder shall have occurred and be continuing.

4.3.            Warranties and Representations at Closing .  The warranties and representations contained in Section 5 as well as any other Section of this Agreement shall be true and correct in all respects on the Closing Date with the same effect as though made on and as of that date.  Company and/or SPE Owner shall not have taken any action or permitted any condition to exist which would have been prohibited by any Section hereof.

4.4.            Compliance with this Agreement .  Company and SPE Owner shall have performed and complied with all agreements, covenants and conditions contained herein including, without limitation, the provisions of Sections 6 and 7 hereof, which are required to be performed or complied with by Company and SPE Owner before or at the Closing Date.

4.5.            Officers’ Certificate .  Lender shall have received a certificate dated the Closing Date and signed by the chief financial officer of Borrower certifying that all of the conditions specified in this Section have been fulfilled.

4.6.            Closing .  Subject to the conditions of this Section, the Term Loan shall be made on the date hereof (the “ Closing Date ”) contemporaneously with the execution hereof (“ Closing ”).

4.7.            Waiver of Rights .  Disbursement of the Term Loan shall be evidence that all of the conditions to closing set forth above have been satisfied or waived by Lender unless otherwise agreed in writing by Borrower and Lender; provided, however, that by completing the Closing hereunder, Lender does not thereby waive a breach of any warranty or representation made by Company or SPE Owner hereunder or under any agreement, document, or instrument delivered to Lender or otherwise referred to herein, and any claims and rights of Lender resulting from any breach or misrepresentation by Company or SPE Owner are specifically reserved by Lender.

4.8.            Fees and Expenses. Borrower shall have paid all fees including, without limitation, the Term Loan Closing Fee, the cost of any and all appraisal fees, environmental fees and the Expenses associated with the Tem Loan.

To induce Lender to complete the Closing and make the Term Loan to Borrower, Company and Borrower warrant and represent to Lender that:

5.1.            Organization; Powers .  Each of Company and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required. Borrower represents and warrants that it has delivered to Lender true, correct and complete copies of its articles or certificates of incorporation, and that such articles or certificates have not been amended, modified, supplemented or replaced since the date of delivery to Lender.

5.2.            Authorization; Enforceability .  The Transactions are within SPE Owner’s and Company’s’ corporate powers, as applicable, and have been duly authorized by all necessary corporate and, if required, stockholder action. This Agreement has been duly executed and delivered by  SPE Owner and Company and constitutes a legal, valid and binding obligation of Company and SPE Owner, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

5.3.            Governmental Approvals; No Conflicts.   The Transactions:

a.        do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect,

b.        will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of Company or any of its Subsidiaries or any order of any Governmental Authority,

c.        will not violate or result in a default under any indenture, agreement or other instrument binding upon Company or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by Company or any of its Subsidiaries except for any such violation or default that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, and

d.        will not result in the creation or imposition of any Lien on any asset of Company or any of its Subsidiaries.

5.4.            Financial Condition; No Material Adverse Change.

a.        Company has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal year ended December 31, 2008, reported on by PricewaterhouseCoopers LLP, independent registered public accountants. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of Company and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP.

b.         Since December 31, 2008, there has been no material adverse change in the business, assets, prospects or condition, financial or otherwise, of Company and its Subsidiaries, taken as a whole.

5.5.            Properties.

a.        Each of Company and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except where the failure to have such good title or valid leasehold interest could not reasonably be expected to have a Material Adverse Effect.

b.        Each of Company and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, except where the impairment of such ownership or license is not reasonably expected to have a Material Adverse Effect, and the use thereof by Company and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

5.6.            No Material Litigation .  Except for such litigation previously disclosed by Company in its periodic filings made with the SEC or on Schedule 5.6, no litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of Company, threatened by or against Company or any of its Subsidiaries or against any of its or their respective properties or revenues with respect to this Agreement, any of the other documents or agreements executed and delivered in connection therewith, or any of the transactions contemplated hereby, or which could reasonably be expected to have a Material Adverse Effect.

5.7.            Compliance with Laws and Agreements .  Each of Company and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.

5.8.            Investment and Holding Company Status .  Neither Company nor any of its Subsidiaries is

a.        an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or

b.        a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.

5.9.            Taxes.   Each of Company and its Subsidiaries has timely filed or caused to be filed all tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which Company or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

5.10.            ERISA.   No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan by an amount which could reasonably be expected to result in a Material Adverse Effect, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Plans by an amount which could reasonably be expected to result in a Material Adverse Effect.

5.11.            Federal Regulations.   Neither the making of the Term Loan nor the use of the proceeds thereof will be used for any purpose which violates or is inconsistent with the provisions of Regulation U of the Board.

5.12.            Environmental Matters .  Except to the extent that the facts and circumstances giving rise to any such failure to be so true and correct, in the aggregate, could not reasonably be expected to have a Material Adverse Effect or have been previously disclosed by Company in its periodic filings made with the SEC or have been otherwise disclosed by Company or SPE Owner to Lender:

a.        The Properties do not contain any Materials of Environmental Concern in amounts or concentrations which constitute a violation of, or could reasonably give rise to liability under, Environmental Laws;

b.        The Properties and all operations at the Properties are in compliance with all applicable Environmental Laws, and there is no violation of any Environmental Law with respect to the Properties;

c.        Neither Company nor any of its Subsidiaries has received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties that (except for sites in pre-delineation phase) has not been or is not currently the subject of a remedial action work plan the applicable governmental authority, nor does Company have knowledge or reason to believe that any such notice will be received or is being threatened.

d.        Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably give rise to liability under, Environmental Laws, nor have any Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Laws.

e.        Except for such actions previously disclosed by Company  in its periodic filings made with the SEC, no judicial proceeding or governmental or administrative action is pending, or, to the knowledge of Company, threatened, under any Environmental Law to which Company or any of its Subsidiaries is or, to the knowledge of Company, will be named as a party with respect to the Properties, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative of judicial requirements outstanding under any Environmental Law with respect to the Properties.

f.        There has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of Company and its Subsidiaries in connection with the Properties in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws.

5.13.            Insurance.   Company and each of its Subsidiary maintains with insurance companies rated at least A- by A.M. Best & Co., with premiums at all times currently paid, insurance upon fixed assets, including general and excess liability insurance, fire and all other risks insured against by extended coverage, employee fidelity bond coverage, business interruption insurance, and all insurance required by law, all in form and amounts required by law and customary to the respective natures of their businesses and properties, except in cases where failure to maintain such insurance will not have or potentially have a Material Adverse Effect.

5.14.            Condition of Properties.   Each of the following representations and warranties is true and correct except to the extent disclosed on Schedule 5.6 or that the facts and circumstances giving rise to any such failure to be so true and correct, in the aggregate, could not reasonably be expected to have a Material Adverse Effect:

a.        All of the improvements located on the Properties and the use of said improvements comply and shall continue to comply in all respects with all applicable zoning resolutions, building codes, subdivision and other similar applicable laws, rules and regulations and are covered by existing valid certificates of occupancy and all other certificates and permits required by applicable laws, rules, regulations and ordinances or in connection with the use, occupancy and operation thereof.

b.        No material portion of any of the Properties, nor any improvements located on said Properties that are material to the operation, use or value thereof, have been damaged in any respect as a result of any fire, explosion, accident, flood or other casualty.

c.        No condemnation or eminent domain proceeding has been commenced or to the knowledge of Company is about to be commenced against any portion of any of the Properties, or any improvements located thereon that are material to the operation, use or value of said Properties.

d.        No notices of violation of any federal, state or local law or ordinance or order or requirement have been issued with respect to any Properties.

5.15.            REIT Status.   Company is a real estate investment trust under Sections 856 through 860 of the Code.

5.16.            Disclosure.   Company has disclosed to Lender all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of Company to Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

5.17.            Anti-Terrorism Laws.

a.         General .  Neither Company nor any of its Subsidiaries is in violation of any Anti-Terrorism Law or intentionally engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

b.         Executive Order No. 13224 .   Neither Company nor any of its Subsidiaries is any of the following (each a “ Blocked Person ”):

i.           a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;

ii.           a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224;

iii.           a Person with which Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

iv.           a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order No. 13224;

v.           a Person that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list; or

vi.           a Person who is affiliated with a Person listed above.

5.18.            DAG Lease.   To Borrower’s knowledge, the DAG Lease is in full force and effect, has not been amended, modified, supplemented or replaced, and there are no defaults or events of default under the DAG Lease.

Until all of the Obligations are paid and satisfied in full, Company and SPE Owner covenant and agree with Lender:

6.1.            Financial Statements and Other Information.   Company and SPE Owner will furnish to Lender:

a.        as soon as available, but in any event, on or before the tenth day following the date on which the following are required to be filed with the SEC, Company’s audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied. The report on Form 10K filed with the SEC shall satisfy the requirement of this clause (a) and shall be deemed delivered to Lender so long as the same is posted on Company’s Web site;

b.        as soon as available, but in any event, on or before the tenth day following the date on which the following are required to be filed with the SEC, Company’s consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes. The report on Form 10-Q filed with the SEC shall satisfy the requirement of this clause (b) and shall be deemed delivered to Lender so long as the same is posted on Company’s website;

c.        concurrently with any delivery of financial statements under clause (a) or (b) above (or, if such physical delivery is not required, within the time provided therein), a certificate of a Principal Officer of Company

i.           certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto,

ii.           setting forth reasonably detailed calculations demonstrating compliance with Section 7.1 and

iii.           stating whether any material change in the application of GAAP has occurred since the date of the audited financial statements referred to in Section 5.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

d.        as soon as available and, in any event, within 120 days after the end of each fiscal year of SPE Owner, SPE Owner shall deliver unaudited financial statements consisting of the balance sheet of SPE Owner as of the end of such fiscal year, and the related statements of profit and loss, stockholder’s equity and cash flow for such fiscal year, all in reasonable detail and all prepared in accordance with GAAP. Such financial statements shall be certified to be accurate in all material respects to the knowledge of the SPE Owner (exclusive of footnote disclosures);

e.        as soon as available and in any event within 60 days of the last month of each fiscal quarter of SPE Owner, SPE Owner shall deliver unaudited financial statements consisting of the balance sheet of SPE Owner as of the end of such fiscal quarter, and the related statements of profit and loss, stockholder’s equity and cash flow for such fiscal quarter for the period commencing at the end of the previous fiscal quarter and ending with the end of such fiscal quarter, all in reasonable detail and all prepared in accordance with GAAP.  Such financial statements shall be certified to be accurate in all material respects to the knowledge of SPE Owner (subject to year-end adjustments and exclusive of footnote disclosures);

f.        promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other required filings filed by Company or any Subsidiary with the SEC or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by Company to its share-holders generally, as the case may be, provided that in lieu of delivery of such information, Company may send a notice to Lender referencing that Company’s website contains copies of such materials;

g.        prompt written notice to Lender of the delivery or receipt by SPE Owner of a written notice of default with respect to the DAG Lease; and

h.        promptly following any request therefor, such other information