GETTY REALTY CORP /MD/ (Form: 10-K, Received: 03/03/2009 12:10:46)

Name of First Affiliated Employer:

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-K


x	ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008

	OR

o	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

	COMMISSION FILE NUMBER 001-13777

	GETTY REALTY CORP.

	(Exact name of registrant as specified in its charter)


Maryland		11-3412575

(State or other jurisdiction of incorporation or organization)		(I.R.S. employer identification no.)

125 Jericho Turnpike, Suite 103, Jericho, New York		11753

(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (516) 478-5400

Securities registered pursuant to Section 12(b) of the Act:


TITLE OF EACH CLASS		NAME OF EACH EXCHANGE ON WHICH REGISTERED

Common Stock, $0.01 par value		New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act:


	None

	(Title of Class)

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes o No x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes o No x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):


Large accelerated filer o	Accelerated filer x	Non-accelerated filer o	Smaller reporting company o
(Do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes o No x

The aggregate market value of common stock held by non-affiliates (17,354,865 shares of common stock) of the Company was $250,083,605 as of June 30, 2008.

The registrant had outstanding 24,766,166 shares of common stock as of March 2, 2009.

DOCUMENTS INCORPORATED BY REFERENCE


DOCUMENT		PART OF FORM 10-K

Selected Portions of Definitive Proxy Statement for the 2009 Annual Meeting of Stockholders (the “Proxy Statement”), which will be filed by the registrant on or prior to 120 days following the end of the registrant’s year ended December 31, 2008 pursuant to Regulation 14A.		III

TABLE OF CONTENTS


Item	Description	Page


	Cautionary Note Regarding Forward-Looking Statements	1

	PART I

1	Business	3
1A	Risk Factors	7
1B	Unresolved Staff Comments	17
2	Properties	18
3	Legal Proceedings	20
4	Submission of Matters to a Vote of Security Holders	24

	PART II

5	Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities	25
6	Selected Financial Data	27
7	Management’s Discussion and Analysis of Financial Condition and Results of Operations	28
7A	Quantitative and Qualitative Disclosures About Market Risk	44
8	Financial Statements and Supplementary Data	45
9	Changes in and Disagreements with Accountants on Accounting and Financial Disclosure	65
9A	Controls and Procedures	65
9B	Other Information	65

	PART III

10	Directors, Executive Officers and Corporate Governance	66
11	Executive Compensation	66
12	Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters	66
13	Certain Relationships and Related Transactions, and Director Independence	67
14	Principal Accountant Fees and Services	67

	PART IV

15	Exhibits and Financial Statement Schedules	68

	Signatures	84
	Exhibit Index	85

Cautionary Note Regarding Forward-Looking Statements

Certain statements in this Annual Report on Form 10-K may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. When we use the words “believes,” “expects,” “plans,” “projects,” “estimates,” “predicts” and similar expressions, we intend to identify forward-looking statements. (All capitalized and undefined terms used in this section shall have the same meanings hereafter defined below in this Annual Report on Form 10-K.) Examples of forward-looking statements include statements regarding the developments related to our primary tenant, Getty Petroleum Marketing Inc. (“Marketing”) which is a wholly owned subsidiary of OAO LUKoil (“Lukoil”), and the Marketing Leases (as defined below) included in “Item 1A. Risk Factors” and Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations - Developments Related to Marketing and the Marketing Leases” and elsewhere in this Annual Report on Form 10-K; the impact of any modification or termination of the Marketing Leases on our business and ability to pay dividends or our stock price; our belief that Lukoil would not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases; our belief that it is not probable that Marketing will not pay for substantially all of the Marketing Environmental Liabilities (as defined below); our decision to attempt to negotiate with Marketing for a modification of the Marketing Leases which removes the Subject Properties (as defined below) or the Revised Subject Properties (as defined below) from the Marketing Leases; our ability to predict if or when the Marketing Leases will be modified or terminated, the terms of any such modification or termination or what actions Marketing and Lukoil will take and what our recourse will be whether the Marketing Leases are modified or terminated or not; our belief that it is probable that we will collect the deferred rent receivable related to the Remaining Properties (as defined below); our belief that no impairment charge is necessary for the Subject Properties or the additional properties included within the list of Revised Subject Properties; the expected effect of regulations on our long-term performance; our expected ability to maintain compliance with applicable regulations; our ability to renew expired leases; the adequacy of our current and anticipated cash flows from operations, borrowings under our credit agreement and available cash and cash equivalents; our ability to re-let properties at market rents or sell properties; our belief that we do not have a material liability for offers and sales of our securities made pursuant to registration statements that did not contain the financial statements or summarized financial data of Marketing; our expectations regarding future acquisitions; our ability to maintain our federal tax status as a real estate investment trust (“REIT”); the probable outcome of litigation or regulatory actions; our expected recoveries from underground storage tank funds; our exposure to environmental remediation costs; our estimates regarding remediation costs; our expectations as to the long-term effect of environmental liabilities on our business, financial condition; results of operations, liquidity, ability to pay dividends and stock price our exposure to interest rate fluctuations and the manner in which we expect to manage this exposure; the expected reduction in interest-rate risk resulting from our interest rate swap agreement and our expectation that we will not settle the interest rate swap agreement prior to its maturity; the expectation that the Credit Agreement (as defined below) will be refinanced with variable interest-rate debt at its maturity; our expectations regarding corporate level federal income taxes; the indemnification obligations of the Company and others; our assessment of the likelihood of future competition; our assessment as to the adequacy of our insurance coverage; our belief that Marketing had vacancies and/or removed the gasoline tanks and related equipment at what may be as much as 10% or more of the properties subject to the Marketing Leases; assumptions regarding the future applicability of accounting estimates, assumptions and policies; our intention to pay future dividends and the amounts thereof; and our beliefs about the reasonableness of our accounting estimates, judgments and assumptions.

These forward-looking statements are based on our current beliefs and assumptions and information currently available to us, and involve known and unknown risks (including the risks described below in “Item 1A. Risk Factors” and other risks that we describe from time to time in our other filings with the Securities and Exchange Commission (“SEC”)), uncertainties and other factors which may cause our actual results, performance and achievements to be materially different from any future results, performance or achievements expressed or implied by these forward- looking statements. These factors include, but are not limited to: risks associated with owning and leasing real estate generally; dependence on Marketing as a tenant and on rentals from companies engaged in the petroleum marketing and convenience store businesses; adverse developments in general business, economic or political conditions our unresolved SEC comment; competition for properties and tenants; risk of performance of our tenants of their lease obligations, tenant non-renewal and our ability to re-let or sell vacant properties; the effects of taxation and other regulations; potential litigation exposure; costs of completing environmental remediation and of compliance with environmental regulations; the exposure to counterparty risk; the risk of loss of our management

team; the impact of our electing to be treated as a REIT under the federal income tax laws, including subsequent failure to qualify as a REIT; risks associated with owning real estate primarily concentrated in the Northeast and Mid-Atlantic regions of the United States; risks associated with potential future acquisitions; losses not covered by insurance; future dependence on external sources of capital; the risk that our business operations may not generate sufficient cash for distributions or debt service; our potential inability to pay dividends; and terrorist attacks and other acts of violence and war. As a result of these and other factors, we may experience material fluctuations in future operating results on a quarterly or annual basis, which could materially and adversely affect our business, financial condition, operating results and/or stock price. An investment in our stock involves various risks, including those mentioned above and elsewhere in this report and those that are described from time to time in our other filings with the SEC.

You should not place undue reliance on forward-looking statements, which reflect our view only as of the date hereof. We undertake no obligation to publicly release revisions to these forward-looking statements that reflect future events or circumstances or reflect the occurrence of unanticipated events.

PART I

Item 1. Business

Overview

Getty Realty Corp., a Maryland corporation, is the largest publicly-traded real estate investment trust (“REIT”) in the United States specializing in the ownership and leasing of retail motor fuel and convenience store properties and petroleum distribution terminals. As of December 31, 2008, we owned eight hundred seventy-eight properties and leased one hundred eighty-two additional properties. Our properties are located primarily in the Northeast and the Mid-Atlantic regions in the United States. The Company also owns or leases properties in Texas, North Carolina, Hawaii, California, Florida, Arkansas, Illinois, Ohio and North Dakota.

Nearly all of our properties are leased or sublet to distributors and retailers engaged in the sale of gasoline and other motor fuel products, convenience store products and automotive repair services who are responsible for the payment of taxes, maintenance, repair, insurance and other operating expenses and for managing the actual operations conducted at these properties. As of December 31, 2008, we leased approximately 82% of our owned and leased properties on a long-term basis to Getty Petroleum Marketing Inc. (“Marketing”). Marketing is wholly-owned by a subsidiary of OAO LUKoil (“Lukoil”), one of the largest integrated Russian oil companies. Marketing operates the petroleum distribution terminals but typically does not itself directly operate the retail motor fuel and convenience store properties it leases from us. Rather, Marketing generally subleases our retail properties to distributors and retailers who are responsible for the actual operations at the locations and operate their convenience stores, automotive repair services or other businesses at our properties. (For information regarding factors that could adversely affect us relating to Marketing or our other lessees, see “Item 1A. Risk Factors”. For additional information regarding developments related to Marketing and the Marketing Leases (as defined below), see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

We are self-administered and self-managed by our experienced management team, which has over ninety-eight years of combined experience in owning, leasing and managing retail motor fuel and convenience store properties. Our executive officers are engaged exclusively in the day-to-day business of the Company. We administer nearly all management functions for our properties, including leasing, legal, data processing, finance and accounting. We have invested, and will continue to invest, in real estate and real estate related investments, such as mortgage loans, when appropriate opportunities arise.

The History of Our Company

Our founders started the business in 1955 with the ownership of one gasoline service station in New York City and combined real estate ownership, leasing and management with actual service station operation and petroleum distribution. We held our initial public offering in 1971 under the name Power Test Corp. We acquired, from Texaco in 1985, the petroleum distribution and marketing assets of Getty Oil Company in the Northeast United States along with the Getty® name and trademark in connection with our real estate and the petroleum marketing business in the United States. We became one of the largest independent owner/operators of petroleum marketing assets in the country, serving retail and wholesale customers through a distribution and marketing network of Getty® and other branded retail motor fuel and convenience store properties and petroleum distribution terminals.

Marketing was formed to facilitate the spin-off of our petroleum marketing business to our shareholders which was completed in 1997 (the “Spin-Off”). At that time, our shareholders received a tax-free dividend of one share of common stock of Marketing for each share of our common stock. Following the Spin-Off, Marketing held the assets and liabilities of our petroleum marketing operations and a portion of our home heating oil business, and we continued to operate primarily as a real estate company specializing in the ownership and leasing of retail motor fuel and convenience store properties and petroleum distribution terminals. We acquired Power Test Investors Limited Partnership (the “Partnership”) in 1998, thereby acquiring fee title to two hundred ninety-five properties we had previously leased from the Partnership and which the Partnership had acquired from Texaco in 1985. We later sold

the remaining portion of our home heating oil business. As a result, we are now exclusively engaged in the ownership, leasing and management of real estate assets, principally in the petroleum marketing industry.

Marketing was acquired by a U.S. subsidiary of Lukoil in December 2000. In connection with Lukoil’s acquisition of Marketing, we renegotiated our long-term unitary lease (the “Master Lease”) with Marketing. As of December 31, 2008, Marketing leased from us eight hundred fifty-four properties under the Master Lease and ten properties under supplemental leases (collectively with the Master Lease, the “Marketing Leases”). Eight hundred fifty-five of the properties leased to Marketing are retail motor fuel and convenience store properties and nine of the properties are petroleum distribution terminals. Seven hundred ten of the properties leased to Marketing are owned by us and one hundred fifty-four of the properties are leased by us from third parties. The Master Lease has an initial term expiring in December 2015, and generally provides Marketing with three renewal options of ten years each and a final renewal option of three years and ten months extending to 2049. Each of the renewal options may be exercised only on an “all or nothing” basis. The supplemental leases have initial terms of varying expiration dates. The Marketing Leases are “triple-net” leases, pursuant to which Marketing is responsible for the payment of taxes, maintenance, repair, insurance and other operating expenses. We have licensed the Getty® trademarks to Marketing on an exclusive basis in its marketing territory as of December 2000. We have also licensed the trademarks to Marketing on a non-exclusive basis outside that territory, subject to a gallonage-based royalty, although to date, Marketing has not used the trademark outside that territory. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

We elected to be treated as a REIT under the federal income tax laws beginning January 1, 2001. A REIT is a corporation, or a business trust that would otherwise be taxed as a corporation, which meets certain requirements of the Internal Revenue Code. The Internal Revenue Code permits a qualifying REIT to deduct dividends paid, thereby effectively eliminating corporate level federal income tax and making the REIT a pass-through vehicle for federal income tax purposes. To meet the applicable requirements of the Internal Revenue Code, a REIT must, among other things, invest substantially all of its assets in interests in real estate (including mortgages and other REITs) or cash and government securities, derive most of its income from rents from real property or interest on loans secured by mortgages on real property, and distribute to shareholders annually a substantial portion of its otherwise taxable income. As a REIT, we are required to distribute at least ninety percent of our taxable income to our shareholders each year and would be subject to corporate level federal income taxes on any taxable income that is not distributed.

Real Estate Business

The operators of our properties are primarily distributors and retailers engaged in the sale of gasoline and other motor fuel products, convenience store products and automotive repair services. Over the past decade, these lines of business have matured into a single industry as operators increased their emphasis on co-branded locations with multiple uses. The combination of petroleum product sales with other offerings, particularly convenience store products, has helped provide one-stop shopping for consumers and we believe represented a driving force behind the industry’s historical growth. In addition, approximately twenty of our properties are directly leased by us to others for other uses such as fast food restaurants, automobile sales and other retail purposes. In those instances where we determine that the highest and best use for our properties is no longer a retail motor fuel outlet, we will seek alternative tenants or buyers for such properties as opportunities arise.

Revenues from rental properties for the year ended December 31, 2008 were $81.2 million which is comprised of $78.6 million of lease payments received and $2.5 million of deferred rental income recognized due to the straight-line method of accounting for the leases with Marketing and certain of our other tenants and amortization of above-market and below-market rent for acquired in-place leases. In 2008, we received lease payments from Marketing aggregating approximately $60.3 million (or 77%) of the $78.6 million lease payments received. We are materially dependent upon the ability of Marketing to meet its rental, environmental and other obligations under the Marketing Leases. Marketing’s financial results depend largely on retail petroleum marketing margins and rental income from subtenants who operate our properties. As permitted under the terms of our leases with Marketing, Marketing can generally use each property for any lawful purpose, or for no purpose whatsoever. The petroleum marketing industry has been and continues to be volatile and highly competitive. Marketing has made all required

monthly rental payments under the Marketing Leases when due, although there is no assurance that it will continue to do so. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.) You can find more information about our revenues, profits and assets by referring to the financial statements and supplemental financial information in “Item 8. Financial Statements and Supplementary Data”.

As of December 31, 2008, we owned fee title to eight hundred sixty-nine retail motor fuel, convenience store and other retail properties and nine petroleum distribution terminals. We also leased one hundred eighty-two retail motor fuel, convenience store and other retail properties. Our typical property is used as a retail motor fuel and/or convenience store, and is located on between one-half and three quarters of an acre of land in a metropolitan area. Our properties are located primarily in the Northeast and the Mid-Atlantic regions in the United States. The Company also owns or leases properties in Texas, North Carolina, Hawaii, California, Florida, Arkansas, Illinois, Ohio and North Dakota. Approximately one-half of our retail motor fuel properties have repair bays (typically two or three bays per station) and nearly half have convenience stores, canopies or both. We lease four thousand square feet of office space at 125 Jericho Turnpike, Jericho, New York, which is used for our corporate headquarters.

We believe our network of retail motor fuel and convenience store properties and terminal properties across the Northeast and the Mid-Atlantic regions of the United States is unique and that comparable networks of properties are not readily available for purchase or lease from other owners or landlords. Many of our properties are located at highly trafficked urban intersections or conveniently close to highway entrance and exit ramps. Furthermore, we believe that obtaining the permits necessary to operate a network of petroleum marketing properties such as ours would be a difficult, time consuming and costly process for any potential competitor. However, the real estate industry is highly competitive, and we compete for tenants with a large number of property owners. Our principal means of competition are rents charged in relation to the income producing potential of the location. In addition, we expect other major real estate investors with significant capital will compete with us for attractive acquisition opportunities. These competitors include petroleum manufacturing, distributing and marketing companies, other REITs, investment banking firms and private institutional investors. This competition has increased prices for commercial properties and may impair our ability to make suitable property acquisitions on favorable terms in the future.

As part of our overall growth strategy we regularly review opportunities to acquire additional properties and we expect to continue to pursue acquisitions that we believe will benefit our financial performance. To the extent that our current sources of liquidity are not sufficient to fund such acquisitions we will require other sources of capital, which may or may not be available on favorable terms or at all.

Trademarks

We own the Getty® name and trademark in connection with our real estate and the petroleum marketing business in the United States and have licensed the Getty® trademarks to Marketing on an exclusive basis in its marketing territory as of December 2000. We have also licensed the trademarks to Marketing on a non-exclusive basis outside that territory, subject to a gallonage-based royalty, although to date, Marketing has not used the trademark outside that territory. The trademark licenses with Marketing are coterminous with the Master Lease.

Regulation

We are subject to numerous existing federal, state and local laws and regulations including matters related to the protection of the environment such as the remediation of known contamination and the retirement and decommissioning or removal of long-lived assets including buildings containing hazardous materials, underground storage tanks (“UST” or “USTs”) and other equipment. Petroleum properties are governed by numerous federal, state and local environmental laws and regulations. These laws have included: (i) requirements to report to governmental authorities discharges of petroleum products into the environment and, under certain circumstances, to remediate the soil and/or groundwater contamination pursuant to governmental order and directive, (ii) requirements to remove and replace USTs that have exceeded governmental-mandated age limitations and (iii) the requirement to

provide a certificate of financial responsibility with respect to claims relating to UST failures. Our tenants are directly responsible for compliance with various environmental laws and regulations as the operators of our properties.

We believe that we are in substantial compliance with federal, state and local provisions enacted or adopted pertaining to environmental matters. Although we are unable to predict what legislation or regulations may be adopted in the future with respect to environmental protection and waste disposal, existing legislation and regulations have had no material adverse effect on our competitive position. (For additional information with respect to pending environmental lawsuits and claims see “Item 3. Legal Proceedings”.)

Environmental expenses are principally attributable to remediation costs which include installing, operating, maintaining and decommissioning remediation systems, monitoring contamination, and governmental agency reporting incurred in connection with contaminated properties. We seek reimbursement from state UST remediation funds related to these environmental expenses where available. We enter into leases and various other agreements which allocate responsibility for known and unknown environmental liabilities by establishing the percentage and method of allocating responsibility between the parties. In accordance with leases with certain tenants, we have agreed to bring the leased properties with known environmental contamination to within applicable standards and to regulatory or contractual closure (“Closure”) in an efficient and economical manner. Generally, upon achieving Closure at an individual property, our environmental liability under the lease for that property will be satisfied and future remediation obligations will be the responsibility of our tenant. As of December 31, 2008, we have regulatory approval for remediation action plans in place for two hundred forty-nine (95%) of the two hundred sixty-two properties for which we continue to retain remediation responsibility and the remaining thirteen properties (5%) were in the assessment phase. In addition, we have nominal post-closure compliance obligations at twenty-four properties where we have received “no further action” letters.

Our tenants are directly responsible to pay for (i) remediation of environmental contamination they cause and compliance with various environmental laws and regulations as the operators of our properties, and (ii) environmental liabilities allocated to our tenants under the terms of our leases and various other agreements between our tenants and us. Generally, the liability for the retirement and decommissioning or removal of USTs and other equipment is the responsibility of our tenants. We are contingently liable for these obligations in the event that our tenants do not satisfy their responsibilities. A liability has not been accrued for obligations that are the responsibility of our tenants based on our tenants’ past histories of paying such obligations and/or our assessment of their respective financial abilities to pay their share of such costs. However, there can be no assurance that our assessments are correct or that our tenants who have paid their obligations in the past will continue to do so.

It is possible that our assumptions regarding the ultimate allocation methods and share of responsibility that we used to allocate environmental liabilities may change, which may result in adjustments to the amounts recorded for environmental litigation accruals, environmental remediation liabilities and related assets. We will be required to accrue for environmental liabilities that we believe are allocable to others under various agreements if we determine that it is probable that the counter-party will not meet its environmental obligations. We may ultimately be responsible to directly pay for environmental liabilities as the property owner if the counterparty fails to pay them. The ultimate resolution of these matters could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

For additional information please refer to “Item 1A. Risk Factors” and to “General – Developments Related to Marketing and the Marketing Leases,” “Liquidity and Capital Resources,” “Environmental Matters” and “Contractual Obligations” in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” which appear in Item 7. of this Annual Report on Form 10-K.

Personnel

As of February 1, 2009, we had sixteen employees.

Access to our filings with the Securities and Exchange Commission and Corporate Governance Documents

Our website address is www.gettyrealty.com. Our address, phone number and a list of our officers is available on our website. Our website contains a hyperlink to the EDGAR database of the Securities and Exchange Commission at www.sec.gov where you can access, free-of-charge, our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and all amendments to these reports as soon as reasonably practicable after such reports are filed. Our website also contains our business conduct guidelines, corporate governance guidelines and the charters of the Compensation, Nominating/Corporate Governance and Audit Committees of our Board of Directors. We also will provide copies of these reports and corporate governance documents free-of-charge upon request, addressed to Getty Realty Corp., 125 Jericho Turnpike, Suite 103, Jericho, NY 11753, Attn: Investor Relations. Information available on or accessible through our website shall not be deemed to be a part of this Annual Report on Form 10-K. You may read and copy any materials that we file with the Securities and Exchange Commission at the Securities and Exchange Commission’s Public Reference Room at 100 F Street, N.E., Washington, DC 20549. You may obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330.

Item 1A. Risk Factors

We are subject to various risks, many of which are beyond our control. As a result of these and other factors, we may experience material fluctuations in our future operating results on a quarterly or annual basis, which could materially and adversely affect our business, financial condition, results of operations liquidity, ability to pay dividends and/or stock price. An investment in our stock involves various risks, including those mentioned below and elsewhere this Annual Report on Form 10-K and those that are described from time to time in our other filings with the SEC.

We are subject to risks inherent in owning and leasing real estate.

We are subject to varying degrees of risk generally related to leasing and owning real estate many of which are beyond our control. In addition to general risks related to owning properties used in the petroleum marketing industry, our risks include, among others:


•	our liability as a lessee for long-term lease obligations regardless of our revenues,

•	deterioration in national, regional and local economic and real estate market conditions,

•	potential changes in supply of, or demand for, rental properties similar to ours,

•	competition for tenants and declining rental rates,

•	difficulty in re-letting properties on favorable terms or at all,

•	impairments in our ability to collect rent payments when due,

•	increases in interest rates and adverse changes in the availability, cost and terms of financing,

•	the potential for uninsured casualty and other losses,

•	the impact of present or future environmental legislation and compliance with environmental laws,

•	adverse changes in zoning laws and other regulations, and

•	acts of terrorism and war.

Each of these factors could cause a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price. In addition, real estate investments are relatively

illiquid, which means that our ability to vary our portfolio of properties in response to changes in economic and other conditions may be limited.

Adverse developments in general business, economic, or political conditions could have a material adverse effect on us.

Adverse developments in general business and economic conditions, including through recession, downturn or otherwise, either in the economy generally or in those regions in which a large portion of our business is conducted, could have a material adverse effect on us and significantly increase certain of the risks we are subject to. The general economic conditions in the United States are, and for an extended period of time may be, significantly less favorable than that of recent years. Among other effects, adverse economic conditions could depress real estate values, impact our ability to re-let or sell our properties and have and adverse effect on our tenants’ level of sales and financial performance generally. Our revenues are dependent on the economic success of our tenants and any factors that adversely impact our tenants could also have a material adverse effect on our business, financial condition and results of operations liquidity, ability to pay dividends and/or stock price.

Because our revenues are primarily dependent on the performance of Getty Petroleum Marketing Inc., our primary tenant, in the event that Marketing cannot or will not perform its rental, environmental and other obligations under the Marketing Leases, or if the Marketing Leases are modified significantly or terminated, or if it becomes probable that Marketing will not pay its environmental obligations, or if we change our assumptions for rental revenue or environmental liabilities related to the Marketing Leases, our business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends and/or stock price could be materially adversely affected. No assurance can be given that Marketing will have the ability to pay its debts or meet its rental, environmental or other obligations under the Marketing Leases.

Marketing’s financial results depend largely upon retail petroleum marketing margins from the sale of refined petroleum products at margins in excess of its fixed and variable expenses and rental income from its subtenants who operate their convenience stores, automotive repair service or other businesses at our properties. The petroleum marketing industry has been, and continues to be, volatile and highly competitive. A large, rapid increase in wholesale petroleum prices would adversely affect Marketing’s profitability and cash flow if the increased cost of petroleum products could not be passed on to Marketing’s customers or if the consumption of gasoline for automotive use were to decline significantly. Petroleum products are commodities, the prices of which depend on numerous factors that affect supply and demand. The prices paid by Marketing and other petroleum marketers for products are affected by global, national and regional factors. We cannot accurately predict how these factors will affect petroleum product prices or supply in the future, or how in particular they will affect Marketing or our other tenants.

A substantial portion of our revenues (75% for the year ended December 31, 2008) are derived from the Marketing Leases. Accordingly, our revenues are dependent to a large degree on the economic performance of Marketing and of the petroleum marketing industry, and any factor that adversely affects Marketing, or our relationship with Marketing, may have a material adverse effect on our business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends and/or stock price. Through March 2009, Marketing has made all required monthly rental payments under the Marketing Leases when due, although there is no assurance that it will continue to do so. Even though Marketing is wholly-owned by a subsidiary of Lukoil, and Lukoil has in prior periods provided credit enhancement and capital to Marketing, Lukoil is not a guarantor of the Marketing Leases and there can be no assurance that Lukoil is currently providing, or will provide, any credit enhancement or additional capital to Marketing.

In accordance with accounting principles generally accepted in the United States of America (“GAAP”), the aggregate minimum rent due over the current terms of the Marketing Leases, substantially all of which are scheduled to expire in December 2015, is recognized on a straight-line basis rather than when the cash payment is due. We have recorded the cumulative difference between lease revenue recognized under this straight line accounting method and the lease revenue recognized when the payment is due under the contractual payment terms as deferred rent receivable on our consolidated balance sheet. We provide reserves for a portion of the recorded deferred rent receivable if circumstances indicate that a property may be disposed of before the end of the current lease term or if it is not reasonable to assume that a tenant will make all of its contractual lease payments when due

during the current lease term. Our assessments and assumptions regarding the recoverability of the deferred rent receivable related to the properties subject to the Marketing Leases are reviewed on a regular basis and such assessments and assumptions are subject to change.

We have had periodic discussions with representatives of Marketing regarding potential modifications to the Marketing Leases and in 2007, during the course of such discussions, Marketing has proposed to (i) remove approximately 40% of the properties (“the Subject Properties”) from the Marketing Leases and eliminate payment of rent to us, and eliminate or reduce payment of operating expenses, with respect to the Subject Properties, and (ii) reduce the aggregate amount of rent payable to us for the approximately 60% of the properties that would remain under the Marketing Leases (the “Remaining Properties”). Representatives of Marketing have also indicated to us that they are considering significant changes to Marketing’s business model. In light of these developments, and the continued deterioration in Marketing’s annual financial performance (as discussed below), in March 2008 we decided to attempt to negotiate with Marketing for a modification of the Marketing Leases which removes the Subject Properties from the Marketing Leases. We have held periodic discussions with Marketing since March 2008 in our attempt to negotiate a modification of the Marketing Leases to remove the Subject Properties. Although we continue to remove individual locations from the Master Lease as mutually beneficial opportunities arise, there has been no agreement between us and Marketing on any principal terms that would be the basis for a definitive Master Lease modification agreement. If Marketing ultimately determines that its business strategy is to exit all of the properties it leases from us or to divest a composition of properties different from the properties comprising the Subject Properties, such as the revised list of properties provided to us by Marketing in the second quarter of 2008 which includes approximately 45% of the properties Marketing leases from us ( the “Revised Subject Properties”), it is our intention to cooperate with Marketing in accomplishing those objectives if we determine that it is prudent for us to do so. Any modification of the Marketing Leases that removes a significant number of properties from the Marketing Leases would likely significantly reduce the amount of rent we receive from Marketing and increase our operating expenses. We cannot accurately predict if, or when, the Marketing Leases will be modified or what the terms of any agreement may be if the Marketing Leases are modified. We also cannot accurately predict what actions Marketing and Lukoil may take, and what our recourse may be, whether the Marketing Leases are modified or not.

We intend either to re-let or sell any properties removed from the Marketing Leases and reinvest the realized sales proceeds in new properties. We intend to seek replacement tenants or buyers for properties removed from the Marketing Leases either individually, in groups of properties, or by seeking a single tenant for the entire portfolio of properties subject to the Marketing Leases. Although we are the fee or leasehold owner of the properties subject to the Marketing Leases and the owner of the Getty® brand and have prior experience with tenants who operate their gas stations, convenience stores, automotive repair services or other businesses at our properties; in the event that properties are removed from the Marketing Leases, we cannot accurately predict if, when, or on what terms, such properties could be re-let or sold.

Due to the previously disclosed deterioration in Marketing’s annual financial performance, in conjunction with our decision to attempt to negotiate with Marketing for a modification of the Marketing Leases to remove the Subject Properties, we have decided that we cannot reasonably assume that we will collect all of the rent due to us related to the Subject Properties for the remainder of the current lease terms. In reaching this conclusion, we relied on various indicators, including, but not limited to, the following financial results of Marketing through the year ended December 31, 2007: (i) Marketing’s significant operating losses, (ii) its negative cash flow from operating activities, (iii) its asset impairment charges for underperforming assets, and (iv) its negative earnings before interest, taxes, depreciation, amortization and rent payable to the Company. We have not received Marketing’s financial results for the year ended December 31, 2008 prior to the preparation of this Annual Report on Form 10-K.

rent receivable due from Marketing representing the full amount of the deferred rent receivable recorded related to the Subject Properties as of that date. We have not provided a deferred rent receivable reserve related to the Remaining Properties since, based on our assessments and assumptions, we continue to believe that it is probable that we will collect the deferred rent receivable related to the Remaining Properties of $22.9 million as of December 31, 2008 and that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases.

Marketing is directly responsible to pay for (i) remediation of environmental contamination it causes and compliance with various environmental laws and regulations as the operator of our properties, and (ii) known and unknown environmental liabilities allocated to Marketing under the terms of the Master Lease and various other agreements between Marketing and us relating to Marketing’s business and the properties subject to the Marketing Leases (collectively the “Marketing Environmental Liabilities”). We may ultimately be responsible to directly pay for Marketing Environmental Liabilities as the property owner if Marketing fails to pay them. Additionally, we will be required to accrue for Marketing Environmental Liabilities if we determine that it is probable that Marketing will not meet its obligations or if our assumptions regarding the ultimate allocation methods and share of responsibility that we used to allocate environmental liabilities changes as a result of the factors discussed above, or otherwise. However, we continue to believe that it is not probable that Marketing will not pay for substantially all of the Marketing Environmental Liabilities since we believe that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases and, accordingly, we did not accrue for the Marketing Environmental Liabilities as of December 31, 2008 or December 31, 2007. Nonetheless, we have determined that the aggregate amount of the Marketing Environmental Liabilities (as estimated by us based on our assumptions and analysis of information currently available to us) could be material to us if we were required to accrue for all of the Marketing Environmental Liabilities in the future since we believe that it is reasonably possible that as a result of such accrual, we may not be in compliance with the existing financial covenants in our Credit Agreement. Such non-compliance could result in an event of default which, if not cured or waived, could result in the acceleration of all of our indebtedness under the Credit Agreement.

Should our assessments, assumptions and beliefs prove to be incorrect, or if circumstances change, the conclusions we reached may change relating to (i) whether some or all of the Subject or Remaining Properties are likely to be removed from the Marketing Leases (ii) recoverability of the deferred rent receivable for some or all of the Subject or Remaining Properties, (iii) potential impairment of the Subject or Remaining Properties, and (iv) Marketing’s ability to pay the Marketing Environmental Liabilities. We intend to regularly review our assumptions that affect the accounting for deferred rent receivable; long-lived assets; environmental litigation accruals; environmental remediation liabilities; and related recoveries from state underground storage tank funds, which may result in material adjustments to the amounts recorded for these assets and liabilities, and as a result of which, we may not be in compliance with the financial covenants in our Credit Agreement. Accordingly, we may be required to (i) reserve additional amounts of the deferred rent receivable related to the Remaining Properties, (ii) record an impairment charge related to the Subject or Remaining Properties, or (iii) accrue for Marketing Environment Liabilities as a result of the potential or actual modification of the Marketing Leases or other factors.

We cannot provide any assurance that Marketing will continue to pay its debts or meet its rental, environmental or other obligations under the Marketing Leases prior or subsequent to any potential modification to the Marketing Leases. In the event that Marketing cannot or will not perform its rental, environmental or other obligations under the Marketing Leases; if the Marketing Leases are modified significantly or terminated; if we determine that it is probable that Marketing will not meet its environmental obligations and we accrue for such liabilities; if we are unable to promptly re-let or sell the properties subject to the Marketing Leases; or if we change our assumptions that affect the accounting for rental revenue or Marketing Environmental Liabilities related to the Marketing Leases and various other agreements; our business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends and/or stock price may be materially adversely affected.

Substantially all of our tenants depend on the same industry for their revenues.

We derive substantially all of our revenues from leasing, primarily on a triple-net basis, retail motor fuel and convenience store properties and petroleum distribution terminals to tenants in the petroleum marketing industry. Accordingly, our revenues will be dependent on the economic success of the petroleum marketing industry, and any factors that adversely affect that industry could also have a material adverse effect on our business, financial

condition and results of operations liquidity, ability to pay dividends and/or stock price. The success of participants in that industry depends upon the sale of refined petroleum products at margins in excess of fixed and variable expenses. A large, rapid increase in wholesale petroleum prices would adversely affect the profitability and cash flows of Marketing and our other tenants if the increased cost of petroleum products could not be passed on to their customers or if automobile consumption of gasoline were to decline significantly. Petroleum products are commodities, the prices of which depend on numerous factors that affect the supply of and demand for petroleum products. The prices paid by Marketing and other petroleum marketers for products are affected by global, national and regional factors. We cannot be certain how these factors will affect petroleum product prices or supply in the future, or how in particular they will affect Marketing or our other tenants.

Our future cash flow is dependent on the performance of our tenants of their lease obligations, renewal of existing leases and either re-letting or selling our vacant properties.

We are subject to risks that financial distress or default of our existing tenants may lead to vacancy at our properties or disruption in rent receipts as a result of partial payment or nonpayment of rent or that expiring leases may not be renewed. Under unfavorable general economic conditions, there can be no assurance that our tenants’ level of sales and financial performance generally will not be adversely affected, which in turn, could impact the reliability of our rent receipts. We are subject to risks that the terms of renewal or re-letting our properties (including the cost of required renovations, replacement of gasoline tanks and related equipment or environmental remediation) may be less favorable than current lease terms, or that the values of our properties that we sell may be adversely affected by unfavorable general economic conditions. Unfavorable general economic conditions may also negatively impact our ability to re-let or sell our properties. Numerous properties compete with our properties in attracting tenants to lease space. The number of available or competitive properties in a particular area could have a material adverse effect on our ability to lease or sell our properties and on the rents charged.

In addition to the risk of disruption in rent receipts, we are subject to the risk of incurring real estate taxes, maintenance, environmental and other expenses at vacant properties. The financial distress or default of our tenants may also lead to protracted, more complex, expensive or burdensome processes for retaking control of our properties than would otherwise be the case, including as a possible consequence of bankruptcy, eviction or other legal proceedings related to or resulting from the tenant’s default. These risks are greater with respect to certain of our tenants who lease multiple properties from us, such as Marketing. (For additional information with respect to concentration of tenant risk, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

If our tenants do not perform their lease obligations, or we were unable to renew existing leases and promptly recapture and re-let or sell vacant locations; or if lease terms upon renewal or re-letting were less favorable than current lease terms, or if the values of properties that we sell are adversely affected by market conditions; or if we incur significant costs or disruption related to or resulting from tenant financial distress, bankruptcy or default; our cash flow could be significantly adversely affected.

Property taxes on our properties may increase without notice.

Each of the properties we own or lease is subject to real property taxes. The leases for certain of the properties that we lease from third parties obligate us to pay real property taxes with regard to those properties. The real property taxes on our properties and any other properties that we develop, acquire or lease in the future may increase as property tax rates change and as those properties are assessed or reassessed by tax authorities. To the extent that our tenants are unable or unwilling to pay such increase in accordance with their leases, our net operating expenses may increase.

We have incurred, and may continue to incur, operating costs as a result of environmental laws and regulation, which could reduce our profitability .

The real estate business and the petroleum products industry are subject to numerous federal, state and local laws and regulations, including matters relating to the protection of the environment. Under certain environmental laws, a current or previous owner or operator of real estate may be liable for contamination resulting from the presence or discharge of hazardous or toxic substances or petroleum products at, on, or under, such property, and may be

required to investigate and clean-up such contamination. Such laws typically impose liability and clean-up responsibility without regard to whether the owner or operator knew of or caused the presence of the contaminants, or the timing or cause of the contamination, and the liability under such laws has been interpreted to be joint and several unless the harm is divisible and there is a reasonable basis for allocation of responsibility. For example, liability may arise as a result of the historical use of a property or from the migration of contamination from adjacent or nearby properties. Any such contamination or liability may also reduce the value of the property. In addition, the owner or operator of a property may be subject to claims by third parties based on injury, damage and/or costs, including investigation and clean-up costs, resulting from environmental contamination present at or emanating from a property. The properties owned or controlled by us are leased primarily as retail motor fuel and convenience store properties, and therefore may contain, or may have contained, USTs for the storage of petroleum products and other hazardous or toxic substances, which creates a potential for the release of such products or substances. Some of our properties may be subject to regulations regarding the retirement and decommissioning or removal of long-lived assets including buildings containing hazardous materials, USTs and other equipment. Some of the properties may be adjacent to or near properties that have contained or currently contain USTs used to store petroleum products or other hazardous or toxic substances. In addition, certain of the properties are on, adjacent to, or near properties upon which others have engaged or may in the future engage in activities that may release petroleum products or other hazardous or toxic substances. There may be other environmental problems associated with our properties of which we are unaware. These problems may make it more difficult for us to re-let or sell our properties on favorable terms, or at all.

For additional information with respect to pending environmental lawsuits and claims, environmental remediation costs and estimates, and developments related to Marketing and the Marketing Leases see “Item 3. Legal Proceedings”, “Environmental Matters” and “General – Developments Related to Marketing and the Marketing Leases” in “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations” and Note 5 in “Item 8. Financial Statements and Supplementary Data - Notes to Consolidated Financial Statements” each of which is incorporated by reference herein.

We enter into leases and various other agreements which allocate responsibility for known and unknown environmental liabilities by establishing the percentage and method of allocating responsibility between the parties. Our tenants are directly responsible to pay for (i) remediation of environmental contamination they cause and compliance with various environmental laws and regulations as the operators of our properties, and (ii) environmental liabilities allocated to our tenants under the terms of our leases and various other agreements between our tenants and us. Generally, the liability for the retirement and decommissioning or removal of USTs and other equipment is the responsibility of our tenants. We are contingently liable for these obligations in the event that our tenants do not satisfy their responsibilities. A liability has not been accrued for obligations that are the responsibility of our tenants based on our tenants’ past histories of paying such obligations and/or our assessment of their respective financial abilities to pay their share of such costs. However, there can be no assurance that our assessments are correct or that our tenants who have paid their obligations in the past will continue to do so.

We have not accrued for approximately $1.0 million in costs allegedly incurred by the current property owner in connection with removal of USTs and soil remediation at a property that was leased to and operated by Marketing. We believe that Marketing is responsible for such costs under the terms of the Master Lease, and have tendered the matter for defense and indemnification from Marketing, but Marketing had denied its liability for claims and its responsibility to defend against, and indemnify us, for the claim. We have filed third party claims against Marketing for indemnification in this matter, which claim is currently being actively litigated. It is reasonably possible that our assumption that Marketing will be ultimately responsible for the claim may change, which may result in our providing an accrual for this and other matters.

We cannot predict what environmental legislation or regulations may be enacted in the future, or if or how existing laws or regulations will be administered or interpreted with respect to products or activities to which they have not previously been applied. We cannot predict whether state UST fund programs will be administered and funded in the future in a manner that is consistent with past practices and if future environmental spending will continue to be eligible for reimbursement at historical recovery rates under these programs. Compliance with more stringent laws or regulations, as well as more vigorous enforcement policies of the regulatory agencies or stricter interpretation of existing laws which may develop in the future, could have an adverse effect on our financial position, or that of our tenants, and could require substantial additional expenditures for future remediation.

As a result of the factors discussed above, or others, compliance with environmental laws and regulations could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

We are defending pending lawsuits and claims and are subject to material losses.

We are subject to various lawsuits and claims, including litigation related to environmental matters, damages resulting from leaking USTs and toxic tort claims. The ultimate resolution of certain matters cannot be predicted because considerable uncertainty exists both in terms of the probability of loss and the estimate of such loss. Our ultimate liabilities resulting from such lawsuits and claims, if any, could cause a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price. (For additional information with respect to pending lawsuits and claims see “Item 3. Legal Proceedings”.)

A significant portion of our properties are concentrated in the Northeast and Mid-Atlantic regions of the United States, and adverse conditions in those regions, in particular, could negatively impact our operations.

A significant portion of the properties we own and lease are located in the Northeast and Mid-Atlantic regions of the United States. Because of the concentration of our properties in those regions, in the event of adverse economic conditions in those regions, we would likely experience higher risk of default on payment of rent payable to us (including under the Marketing Leases) than if our properties were more geographically diversified. Additionally, the rents on our properties may be subject to a greater risk of default than other properties in the event of adverse economic, political, or business developments or natural hazards that may affect the Northeast or Mid-Atlantic United States and the ability of our lessees to make rent payments. This lack of geographical diversification could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

We are in a competitive business.

The real estate industry is highly competitive. Where we own properties, we compete for tenants with a large number of real estate property owners and other companies that sublet properties. Our principal means of competition are rents charged in relation to the income producing potential of the location. In addition, we expect other major real estate investors, some with much greater resources than us, will compete with us for attractive acquisition opportunities. These competitors include petroleum manufacturing, distributing and marketing companies, other REITs, investment banking firms and private institutional investors. This competition has increased prices for commercial properties and may impair our ability to make suitable property acquisitions on favorable terms in the future.

We are exposed to counterparty credit risk and there can be no assurances that we will manage or mitigate this risk effectively.

We regularly interact with counterparties in various industries. The types of counterparties most common to our transactions and agreements include, but are not limited to, landlords, tenants, vendors and lenders. Our most significant counterparties include, but are not limited to, Marketing as our primary tenant, the members of the Bank Syndicate that are counterparties to our Credit Agreement as our primary source of financing and JPMorgan Chase as the counterparty to our interest rate Swap Agreement. The default, insolvency or other inability of a significant counterparty to perform its obligations under an agreement or transaction, including, without limitation, as a result of the rejection of an agreement or transaction in bankruptcy proceedings, could have a material adverse effect on

us. (For additional information with respect to, and definitions of, the Bank Syndicate, the Credit Agreement and the Swap Agreement, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations - Liquidity and Capital Resources” and “Item 7A. Quantitative and Qualitative Disclosures About Market Risks”.)

We may acquire or develop new properties, and this may create risks.

We may acquire or develop properties or acquire other real estate companies when we believe that an acquisition or development matches our business strategies. We may not succeed in consummating desired acquisitions or in completing developments on time or within our budget. We also may not succeed in leasing newly developed or acquired properties at rents sufficient to cover their costs of acquisition or development and operations.

We are subject to losses that may not be covered by insurance.

Marketing, and other tenants, as the lessees of our properties, are required to provide insurance for such properties, including casualty, liability, fire and extended coverage in amounts and on other terms as set forth in our leases. We carry insurance against certain risks and in such amounts as we believe are customary for businesses of our kind. However, as the costs and availability of insurance change, we may decide not to be covered against certain losses (such as certain environmental liabilities, earthquakes, hurricanes, floods and civil disorder) where, in the judgment of management, the insurance is not warranted due to cost or availability of coverage or the remoteness of perceived risk. There is no assurance that our insurance against loss will be sufficient. The destruction of, or significant damage to, or significant liabilities arising out of conditions at, our properties due to an uninsured cause would result in an economic loss and could result in us losing both our investment in, and anticipated profits from, such properties. When a loss is insured, the coverage may be insufficient in amount or duration, or a lessee’s customers may be lost, such that the lessee cannot resume its business after the loss at prior levels or at all, resulting in reduced rent or a default under its lease. Any such loss relating to a large number of properties could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

Failure to qualify as a REIT under the federal income tax laws would have adverse consequences to our shareholders.

We elected to be treated as a REIT under the federal income tax laws beginning January 1, 2001. We cannot, however, guarantee that we will continue to qualify in the future as a REIT. We cannot give any assurance that new legislation, regulations, administrative interpretations or court decisions will not significantly change the requirements relating to our qualification. If we fail to qualify as a REIT, we will again be subject to federal income tax at regular corporate rates, we could be subject to the federal alternative minimum tax, we would be required to pay significant income taxes and we would have less money available for our operations and distributions to shareholders. This would likely have a significant adverse effect on the value of our securities. We could also be precluded from treatment as a REIT for four taxable years following the year in which we lost the qualification, and all distributions to stockholders would be taxable as regular corporate dividends to the extent of our current and accumulated earnings and profits. Loss of our REIT status would result in an event of default that, if not cured or waived, could result in the acceleration of all of our indebtedness under our Credit Agreement which could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

In 2004, we received a comment letter from the Securities and Exchange Commission that contains one comment that remains unresolved.

One comment remains unresolved as part of a periodic review commenced in 2004 by the Division of Corporation Finance of the Securities and Exchange Commission (the “SEC”) of our Annual Report on Form 10-K for the year ended December 31, 2003 pertaining to the SEC’s position that we must include the financial statements and summarized financial data of Marketing in our periodic filings, which Marketing contends is prohibited by the terms of the Master Lease. In June 2005, the SEC indicated that, unless we file Marketing’s financial statements and summarized financial data with our periodic reports: (i) it will not consider our Annual Reports on Forms 10-K for the years beginning with fiscal 2000 to be compliant; (ii) it will not consider us to be current in our reporting

requirements; (iii) it will not be in a position to declare effective any registration statements we may file for public offerings of our securities; and (iv) we should consider how the SEC’s conclusion impacts our ability to make offers and sales of our securities under existing registration statements and if we have a liability for such offers and sales made pursuant to registration statements that did not contain the financial statements of Marketing. We have had no communication with the SEC since 2005. We cannot accurately predict the consequences if we are ultimately unable to resolve this outstanding comment.

We are dependent on external sources of capital which may not be available on favorable terms, if at all.

We are dependent on external sources of capital to maintain our status as a REIT and must distribute to our shareholders each year at least ninety percent of our net taxable income, excluding any net capital gain. Because of these distribution requirements, it is not likely that we will be able to fund all future capital needs, including acquisitions, from income from operations. Therefore, we will have to continue to rely on third-party sources of capital, which may or may not be available on favorable terms, or at all. As part of our overall growth strategy we regularly review opportunities to acquire additional properties and we expect to continue to pursue acquisitions that we believe will benefit our financial performance. To the extent that our current sources of liquidity are not sufficient to fund such acquisitions we will require other sources of capital, which may or may not be available on favorable terms or at all. We cannot accurately predict how periods of illiquidity in the credit markets, such as current market conditions, will impact our access to or cost of capital. In addition, we may be unable to pursue public equity and debt offerings until we resolve with the SEC the outstanding comment regarding disclosure of Marketing’s financial information. Moreover, additional equity offerings may result in substantial dilution of shareholders’ interests, and additional debt financing may substantially increase our leverage. Our access to third-party sources of capital depends upon a number of factors including general market conditions, the market’s perception of our growth potential, our current and potential future earnings and cash distributions, limitations on future indebtedness imposed under our Credit Agreement and the market price of our common stock.

The United States credit markets are currently experiencing an unprecedented contraction. As a result of the tightening credit markets, we may not be able to obtain additional financing on favorable terms, or at all. If one or more of the financial institutions that supports our Credit Agreement fails, we may not be able to find a replacement, which would negatively impact our ability to borrow under our the Credit Agreement. In addition, if the current pressures on credit continue or worsen, we may not be able to refinance our outstanding debt when due in March 2011, which could have a material adverse effect on us. Subject to the terms of the Credit Agreement, we have the option to extend the term of the Credit Agreement for one additional year to March 2012.

Our ability to meet the financial and other covenants relating to our Credit Agreement may be dependent on the performance of our tenants, including Marketing. Should our assessments, assumptions and beliefs that affect our accounting prove to be incorrect, or if circumstances change, we may have to materially adjust the amounts recorded in our financial statements for certain assets and liabilities, and as a result of which, we may not be in compliance with the financial covenants in our Credit Agreement. We have determined that the aggregate amount of the Marketing Environmental Liabilities (as estimated by us based on our assumptions and analysis of information currently available to us) could be material to us if we were required to accrue for all of the Marketing Environmental Liabilities in the future since we believe that it is reasonably possible that as a result of such accrual, we may not be in compliance with the existing financial covenants in our Credit Agreement. (For additional information with respect to The Marketing Environmental Liabilities, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.) If we are not in compliance with one or more of our covenants which, if not complied with could result in an event of default under our Credit Agreement, there can be no assurance that our lenders would waive such non-compliance. A default under our Credit Agreement, if not cured or waived, whether due to a loss of our REIT status, a material adverse effect on our business, financial condition or prospects, a failure to comply with financial and certain other covenants in the Credit Agreement or otherwise, could result in the acceleration of all of our indebtedness under our Credit Agreement. This could have a material adverse affect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

The downturn in the credit markets has increased the cost of borrowing and has made financing difficult to obtain, which may negatively impact our business, and may have a material adverse effect on us. Lenders may require us to enter into more restrictive covenants relating to our operations

During 2007, the United States housing and residential lending markets began to experience accelerating default rates, declining real estate values and increasing backlog of housing supply. The residential sector issues quickly spread more broadly into the corporate, asset-backed and other credit and equity markets and the volatility and risk premiums in most credit and equity markets have increased dramatically, while liquidity has decreased. These issues have continued into 2008 and the beginning of 2009. Increasing concerns regarding the United States and world economic outlook, such as large asset write-downs at banks, volatility in oil prices, declining business and consumer confidence and increased unemployment and bankruptcy filings, are compounding these issues and risk premiums in most capital markets remain near historical all-time highs. These factors are precipitating generalized credit market dislocations and a significant contraction in available credit. As a result, it is becoming increasingly difficult to obtain cost-effective debt capital to finance new investment activity or to refinance maturing debt, and most lenders are imposing more stringent restrictions on the terms of credit. Any future credit agreements or loan documents we execute may contain additional or more restrictive covenants. The negative impact on the tightening of the credit markets and continuing credit and liquidity concerns may have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price. Additionally, there is no assurance that the increased financing costs, financing with increasingly restrictive terms or the increase in risk premiums that are demanded by investors will not have a material adverse effect on us.

Our business operations may not generate sufficient cash for distributions or debt service.

There is no assurance that our business will generate sufficient cash flow from operations or that future borrowings will be available to us in an amount sufficient to enable us to make distributions on our common stock, to pay our indebtedness, or to fund our other liquidity needs. We may not be able to repay or refinance existing indebtedness on favorable terms, which could force us to dispose of properties on disadvantageous terms (which may also result in losses) or accept financing on unfavorable terms.

Borrowings under our Credit Agreement bear interest at a floating rate. Accordingly, an increase in interest rates will increase the amount of interest we must pay under our Credit Agreement and a significant increase in interest rates could also make it more difficult to find alternative financing on desirable terms. We have entered into an interest rate swap agreement with a major financial institution with respect to a portion of our variable rate debt outstanding under our Credit Agreement. Although the agreement is intended to lessen the impact of rising interest rates, it also exposes us to the risk that the other party to the agreement will not perform, the agreement will be unenforceable and the underlying transactions will fail to qualify as a highly-effective cash flow hedge for accounting purposes. Further, there can be no assurance that the use of an interest rate swap will always be to our benefit. While the use of an interest rate swap agreement is intended to lessen the adverse impact of rising interest rates, it also conversely limits the positive impact that could be realized from falling interest rates with respect to the portion of our variable rate debt covered by the interest rate swap agreement.

We may be unable to pay dividends and our equity may not appreciate.

Under the Maryland General Corporation Law, our ability to pay dividends would be restricted if, after payment of the dividend, (1) we would not be able to pay indebtedness as it becomes due in the usual course of business or (2) our total assets would be less than the sum of our liabilities plus the amount that would be needed, if we were to be dissolved, to satisfy the rights of any shareholders with liquidation preferences. There currently are no shareholders with liquidation preferences. No assurance can be given that our financial performance in the future will permit our payment of any dividends. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.) In particular, our Credit Agreement prohibits the payments of dividends during certain events of default. As a result of the factors described above, we may experience material fluctuations in future operating results on a quarterly or annual basis, which could materially and adversely affect our business, stock price and ability to pay dividends.

The loss of certain members of our management team could adversely affect our business.

We depend upon the skills and experience of our executive officers. Loss of the services of any of them could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price. We do not have employment agreements with any of our executives.

Our accounting policies and methods are fundamental to how we record and report our financial position and results of operations, and they require management to make estimates, judgments and assumptions about matters that are inherently uncertain.

Our accounting policies and methods are fundamental to how we record and report our financial position and results of operations. We have identified several accounting policies as being critical to the presentation of our financial position and results of operations because they require management to make particularly subjective or complex judgments about matters that are inherently uncertain and because of the likelihood that materially different amounts would be recorded under different conditions or using different assumptions. Because of the inherent uncertainty of the estimates, judgments and assumptions associated with these critical accounting policies, we cannot provide any assurance that we will not make subsequent significant adjustments to our consolidated financial statements including those included in this Form 10-K. Estimates, judgments and assumptions underlying our consolidated financial statements include, but are not limited to, deferred rent receivable, recoveries from state UST funds, environmental remediation costs, real estate, depreciation and amortization, impairment of long-lived assets, litigation, accrued expenses, income taxes payable and the allocation of the purchase price of properties acquired to the assets acquired and liabilities assumed. For example, we have made judgments regarding the level of environmental reserves and reserves for our deferred rent receivable relating to Marketing and the Marketing Leases. These judgments and assumptions may prove to be incorrect and our business, financial condition, revenues, operating expense, results of operations, liquidity, ability to pay dividends and/or stock price may be materially adversely affected if that is the case. (For information regarding our critical accounting policies, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations - Critical Accounting Policies”.)

Changes in accounting standards issued by the Financial Accounting Standards Board (the “FASB”) or other standard-setting bodies may adversely affect our reported revenues, profitability or financial position.

Our financial statements are subject to the application of GAAP, which are periodically revised and/or expanded. The application of GAAP is also subject to varying interpretations over time. Accordingly, we are required to adopt new or revised accounting standards or comply with revised interpretations that are issued from time-to-time by recognized authoritative bodies, including the FASB and the SEC. Those changes could adversely affect our reported revenues, profitability or financial position.

Terrorist attacks and other acts of violence or war may affect the market on which our common stock trades, the markets in which we operate, our operations and our results of operations.

Terrorist attacks or armed conflicts could affect our business or the businesses of our tenants or of Marketing or its parent. The consequences of armed conflicts are unpredictable, and we may not be able to foresee events that could have a material adverse effect on us. More generally, any of these events could cause consumer confidence and spending to decrease or result in increased volatility in the United States and worldwide financial markets and economy. Terrorist attacks also could be a factor resulting in, or a continuation of, an economic recession in the United States or abroad. Any of these occurrences could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

I tem 1B. Unresolved Staff Comments

June 2005, the SEC indicated that, unless we file Marketing’s financial statements and summarized financial data with our periodic reports: (i) it will not consider our Annual Reports on Forms 10-K for the years beginning with 2000 to be compliant; (ii) it will not consider us to be current in our reporting requirements; (iii) it will not be in a position to declare effective any registration statements we may file for public offerings of our securities; and (iv) we should consider how the SEC’s conclusion impacts our ability to make offers and sales of our securities under existing registration statements and if we have a liability for such offers and sales made pursuant to registration statements that did not contain the financial statements of Marketing.

We believe that the SEC’s position is based on their interpretation of certain provisions of their internal Financial Reporting Manual (formerly known as their Accounting Disclosure Rules and Practices Training Material), Staff Accounting Bulletin No. 71 and Rule 3-13 of Regulation S-X. We do not believe that any of this guidance is clearly applicable to our particular circumstances and we believe that, even if it were, we should be entitled to certain relief from compliance with such requirements. Marketing generally subleases our properties to independent, individual service station/convenience store operators (subtenants). Consequently, we believe that we, as the owner of these properties and the Getty® brand, could re-let these properties to the existing subtenants (except for those properties that are vacant) who operate their convenience stores, automotive repair services or other businesses at our properties, or to other new or replacement tenants, at market rents although we cannot accurately predict whether, when, or on what terms, such properties would be re-let or sold. The SEC did not accept our positions regarding the inclusion of Marketing’s financial statements in our filings. We have had no communication with the SEC since 2005 regarding the unresolved comment. We cannot accurately predict the consequences if we are unable to resolve this outstanding comment.

We do not believe that offers or sales of our securities made pursuant to existing registration statements that did not or do not contain the financial statements of Marketing constitute, by reason of such omission, a violation of the Securities Act of 1933, as amended, or the Exchange Act. Additionally, we believe that if there ultimately is a determination that such offers or sales, by reason of such omission, resulted in a violation of those securities laws, we would not have any material liability as a consequence of any such determination.

I tem 2. Properties

The following table summarizes the geographic distribution of our properties at December 31, 2008. The table also identifies the number and location of properties we lease from third-parties and which Marketing leases from us under the Marketing Leases. In addition, we lease four thousand square feet of office space at 125 Jericho Turnpike, Jericho, New York, which is used for our corporate headquarters, which we believe will remain suitable and adequate for such purposes for the immediate future.


	OWNED BY GETTY REALTY				LEASED BY GETTY REALTY
									TOTAL			PERCENT
	MARKETING AS TENANT (1)		OTHER TENANTS		MARKETING AS TENANT		OTHER TENANTS			PROPERTIES BY STATE			OF TOTAL PROPERTIES

New York		236		31		70		5			342			32.3	%
Massachusetts		127		1		23		—			151			14.2
New Jersey		106		9		24		5			144			13.6
Pennsylvania		107		5		3		4			119			11.3
Connecticut		59		29		16		9			113			10.7
Virginia		4		24		8		1			37			3.5
New Hampshire		25		3		3		—			31			2.9
Maine		17		1		3		1			22			2.1
Rhode Island		15		1		3		—			19			1.8
Texas		—		17		—		—			17			1.6
Delaware		9		1		1		—			11			1.0
North Carolina		—		11		—		—			11			1.0
Hawaii		—		10		—		—			10			0.9
Maryland		4		3		—		2			9			0.8
California		—		8		—		1			9			0.8
Florida		—		6		—		—			6			0.6
Arkansas		—		3		—		—			3			0.3
Illinois		—		2		—		—			2			0.2
Ohio		—		2		—		—			2			0.2
North Dakota		—		1		—		—			1			0.1
Vermont		1		—		—		—			1			0.1

Total		710		168		154		28			1,060			100.0	%


(1)	Includes nine terminal properties owned in New York, New Jersey, Connecticut and Rhode Island.

The properties that we lease have a remaining lease term, including renewal option terms, averaging over ten years. The following table sets forth information regarding lease expirations, including renewal and extension option terms, for properties that we lease from third parties:


CALENDAR YEAR	NUMBER OF LEASES EXPIRING		PERCENT OF TOTAL LEASED PROPERTIES			PERCENT OF TOTAL PROPERTIES

2009		17		9.34	%		1.60	%
2010		9		4.95			0.85
2011		10		5.49			0.94
2012		13		7.14			1.23
2013		5		2.75			0.47

Subtotal		54		29.67			5.09
Thereafter		128		70.33			12.08

Total		182		100.0	%		17.17	%

We have rights-of-first refusal to purchase or lease one hundred forty-four of the properties we lease. Although there can be no assurance regarding any particular property, historically we generally have been successful in renewing or entering into new leases when lease terms expire. Approximately 65% of our leased properties are subject to automatic renewal or extension options.

In the opinion of our management, our owned and leased properties are adequately covered by casualty and liability insurance. In addition, we require our tenants to provide insurance for all properties they lease from us, including casualty, liability, fire and extended coverage in amounts and on other terms satisfactory to us. We have no plans for material improvements to any of our properties. However, our tenants frequently make improvements to the properties leased from us at their expense. We are not aware of any material liens or encumbrances on any of our properties.

We lease eight hundred fifty-five retail motor fuel and convenience store properties and nine petroleum distribution terminals to Marketing under the Marketing Leases. The Master Lease is a unitary lease and has an initial term expiring in 2015, and generally provides Marketing with three renewal options of ten years each and a final renewal option of three years and ten months extending to 2049. Each of the renewal options may be exercised

only on an “all or nothing” basis. The Marketing Leases are “triple-net” leases, under which Marketing is responsible for the payment of taxes, maintenance, repair, insurance and other operating expenses. As permitted under the terms of our leases with Marketing, Marketing can generally use each property for any lawful purpose, or for no purpose whatsoever. We believe that as of December 31, 2008, Marketing had vacancies and/or removed the gasoline tanks and related equipment at what may be as much as 10% or more of the properties subject to the Marketing Leases. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

If Marketing fails to pay rent, taxes or insurance premiums when due under the Marketing Leases and the failure is not cured by Marketing within a specified time after receipt of notice, we have the right to terminate the Marketing Leases and to exercise other customary remedies against Marketing. If Marketing fails to comply with any other obligation under the Master Lease after notice and opportunity to cure, we do not have the right to terminate the Master Lease. In the event of Marketing’s default where we do not have the right to terminate the Master Lease, our available remedies under the Master Lease are to seek to obtain an injunction or other equitable relief requiring Marketing to comply with its obligations under the Master Lease and to recover damages from Marketing resulting from the failure. If any lease we have with a third-party landlord for properties that we lease to Marketing is terminated as a result of our default and the default is not caused by Marketing, we have agreed to indemnify Marketing for its losses with respect to the termination. Marketing has the right-of-first refusal to purchase any property leased to Marketing under the Marketing Leases that we decide to sell.

We have also agreed to provide limited environmental indemnification to Marketing, capped at $4.25 million and expiring in 2010, for certain pre-existing conditions at six of the terminals we own and lease to Marketing. Under the agreement, Marketing is obligated to pay the first $1.5 million of costs and expenses incurred in connection with remediating any pre-existing terminal condition, Marketing will share equally with us the next $8.5 million of those costs and expenses and Marketing is obligated to pay all additional costs and expenses over $10.0 million. We have accrued $0.3 million as of December 31, 2008 and 2007 in connection with this indemnification agreement. Under the Master Lease, we continue to have additional ongoing environmental remediation obligations for one hundred eighty-seven scheduled sites and our agreements with Marketing provide that Marketing otherwise remains liable for all environmental matters. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

Item 3. Legal Proceedings

In 1989, we were named as a defendant in a lawsuit by multiple owners of adjacent properties seeking compensatory and punitive damages for personal injury and property damages alleging that a leak of an underground storage tank occurred in November 1985 at one of our retail motor fuel properties. The action is still pending in New York Supreme Court, Suffolk County, remains in the pleadings stage and has remained dormant for more than twelve years.

In 1991, the State of New York brought an action in the New York State Supreme Court in Albany against our former heating oil subsidiary seeking reimbursement for cleanup costs claimed to have been incurred at a retail motor fuel property in connection with a gasoline release. The State is also seeking penalties plus interest. We answered the complaint by denying liability and also asserted cross-claims against another defendant. There had been no activity in this proceeding for approximately eight years prior to January 2002 when we received a letter from the State’s attorney indicating that the State intends to continue prosecuting the action. To date, we are not aware that the State has taken any additional actions in connection with this claim.

In 1997, an action was commenced in the New York Supreme Court in Schenectady, naming us as defendants, and seeking to recover monetary damages for personal injuries allegedly suffered from the release of petroleum and vapors from one of our retail motor fuel properties. This action has not been pursued by the plaintiff for more than ten years.

In 1997, representatives of the County of Lancaster, Pennsylvania contacted the Company regarding alleged petroleum contamination of property owned by the County adjoining a property owned by the Company. No litigation has been instituted as a result of this potential claim. Negotiations with the County have, however, have been ongoing since commencement of this action in an effort to reach an amicable resolution. In 2005, the County requested reimbursement of legal fees pursuant to an access agreement between the parties. A substantial portion of the fees remains in dispute.

In June 1999, an action was commenced against us in the New York Supreme Court in Richmond County seeking monetary damages for property damage alleged to have resulted from a petroleum release in connection with a tank removal by our contractor. After a number of years of inactivity by the plaintiff, in 2006 the plaintiff reactivated prosecution by filing for a preliminary conference. After a number of years of inactivity by the plaintiff, in 2006 the plaintiff reactivated prosecution of its case by filing for a preliminary conference. Discovery is ongoing.

In 2000, an action was commenced in New York Supreme Court in Nassau County against us by a prior landlord to recover damages arising out of a petroleum release and remediation thereof. The release dates back to 1979 and is listed as “closed” by the NYSDEC. The plaintiff has not pursued this case for more than seven years.

In December 2002, the State of New York commenced an action in the New York Supreme Court in Albany County against us and Marketing to recover costs claimed to have been expended by the State to investigate and remediate a petroleum release into the Ossining River commencing approximately in 1996. This case was settled against all defendants in June, 2008 in consideration for a payment of an aggregate amount, of which the Company, for ourselves and on behalf of Marketing (whom we had agreed to indemnify), paid $53,000.

In February 2003, an action was commenced against us, Marketing and others by the owners of an adjacent property in the Pennsylvania Court of Common Pleas in Lancaster County, asserting claims relating to a discharge of gasoline allegedly emanating from our property. In response to cross motions for summary judgment, the court denied our motion and granted plaintiff’s motion finding us liable for the petroleum contamination. Plaintiff’s counsel has also made demand for legal fees. The matter was settled by us, for ourselves and on behalf of Marketing and its subtenant, in July 2008 in consideration for a payment by the Company of $295,000.

In April 2003, we were named in a complaint seeking class action classification, filed in the New York Supreme Court in Dutchess County, NY, arising out of alleged contamination of ground water with methyl tertiary butyl ether (a fuel derived from methanol, which we refer to as “MTBE”). We served an answer that denied liability and asserted affirmative defenses. The plaintiffs have not responded to our answer and there has been no activity in the case since it was commenced.

In July 2005, the State of Rhode Island Department of Environmental Management (“RIDEM”) issued a Notice of Violation (“NOV”) against the Company and Marketing relating to a suspected petroleum release at a property that abuts property owned by us and leased to Marketing. The NOV was appealed by Marketing on behalf of it and the Company to RIDEM’s Administrative Adjudication Division. An evidentiary hearing on that appeal was held in May, 2008, leading to a final decision entered by RIDEM in October, 2008. The final decision dismissed the NOV entirely against Marketing but only partially against the Company, upholding certain state regulatory violations against one of our subsidiaries and ordering remediation actions and the payment of an administrative penalty. We have appealed RIDEM’s final decision to the Providence Superior Court.

In July 2003, we received a Request for Reimbursement from the State of Maine Department of Environmental Protection (“MDEP”) seeking reimbursement of costs claimed to have been incurred by it in connection with the remediation of contamination found at a retail motor fuel property, purportedly linked to numerous gasoline spills in the late 1980’s. We have denied liability for the claim and not received any data from the State responsive to our requests, the most recent of which was made in July, 2008, for evidence linking the subject contamination to our conduct.

In September 2003, we were notified by the New Jersey Department of Environmental Protection (the “NJDEP”) that we may be responsible for damages to natural resources (“NRDs”) by reason of a petroleum release at a retail motor fuel property formerly operated by us in Egg Harbor, NJ. We have remediated the resulting contamination at the property in accordance with a plan approved by the NJDEP and continue required sampling of monitoring wells

that were required to be installed. In addition, we have responded to the notice and met with the Department to determine whether, and to what extent, we may be responsible for NRDs regarding this property and our other properties formerly supplied by us with gasoline in New Jersey. Since our meeting with the NJDEP held shortly after receipt of the notification, we have had no communication with the NJDEP arising from this matter regarding NRDs.

From October 2003 through December 2008, we were made a party to fifty-four cases in Connecticut, Florida, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Virginia, and West Virginia, brought by local water providers or governmental agencies. These cases allege various theories of liability due to contamination of groundwater with MTBE as the basis for claims seeking compensatory and punitive damages. Each case names as defendants approximately fifty petroleum refiners, manufacturers, distributors and retailers of MTBE, or gasoline containing MTBE. The accuracy of the allegations as they relate to us, our defenses to such claims, the aggregate possible amount of damages, and the method of allocating such amounts among the remaining defendants have not been determined. We have been dismissed from certain of the cases initially filed against us. Pursuant to consolidation procedures under federal law, the various MTBE cases have been transferred to the Federal District Court for the Southern District of New York for coordinated Multi-District Litigation proceedings. We are presently named as a defendant in fifty out of the approximately one hundred cases that are consolidated in the Multi-District Litigation. The Federal District Court has set apart for initial process four focus cases from the consolidated cases being heard. Three of these four focus cases name us as a defendant. One of the focus cases to which we are a party had been set for trial in September 2008. However, all of the named defendants in this first focus case, other than us and one other non-refiner defendant, entered into settlements with certain plaintiffs, which affected approximately twenty-seven of the cases to which we are a party, including one of the other initial focus cases. As a result of the multi-party settlement which affected two of the focus cases, the Court vacated the September 2008 trial date for the first focus case, and further scheduling of trial for the first focus case and one of the other focus cases to which we are a named defendant remains open at this time. As a result of this settlement, the Federal District Court designated an additional focus case for process. We are a named defendant in this new focus case. Trials in this case and in one of the original focus cases in which we have been named a defendant are scheduled for sometime in 2009. We participate in a joint defense group with the goal of sharing expert and other costs with the other defendants, and we also have separate counsel defending our interests. We are vigorously defending these matters.

In November 2003, we received a demand from the State of New York for reimbursement of cleanup and removal costs claimed to have been incurred by the New York Environmental Protection and Spill Compensation Fund regarding contamination it alleges emanated from one of our retail motor fuel properties in 1997. We have responded to the State’s demand and have denied responsibility for reimbursement of such costs. In September 2004, the State of New York commenced an action against us and others in New York Supreme Court in Albany County seeking recovery of such costs as well as additional costs and future costs for remediation and sampling, and interest and penalties. Discovery in this case is ongoing. We are vigorously defending this matter.

In July 2005, we received a demand from a property owner for reimbursement of cleanup and soil removal costs, at a former retail motor fuel property located in Brooklyn, New York formerly supplied by us with gasoline that the owner expects to incur in connection with the proposed development of its property. The owner claims that the costs will be reimbursable pursuant to an indemnity agreement that we entered into with the property owner. Although we have acknowledged responsibility for the contaminated soil, and have been engaged in the remediation of the same, we have denied responsibility for the full extent of the costs estimated to be incurred.

In October 2005, the State of New York commenced an action in the New York Supreme Court in Albany County against us and Marketing to recover costs claimed to have been funded by the State to remediate a petroleum release emanating from a property we acquired in 1999. The seller of the property to us, who is also party to the action, has agreed to defend and indemnify us (and Marketing) regarding the release and funds have been escrowed to cover the amount sought to be recovered. The parties in this action are engaged in discovery proceedings. No trial date has yet been established.

In December 2005, an action was commenced against us in the Superior Court in Providence, Rhode Island, by the owner of a pier that is adjacent to one of our terminals that is leased to Marketing seeking monetary damages of approximately $500,000 representing alleged costs related to the ownership and maintenance of the pier for the period from January 2003 through September 2005. We have been vigorously defending against this action.

Additionally, we tendered the matter to Marketing for indemnification and defense pursuant to the Master Lease. Marketing declined to accept our tender and has denied liability for the claim. In May, 2008 the US District Court (to which the case had been removed from state court) granted our motion for summary judgment against the plaintiff on all claims. The plaintiff has appealed this decision to the First Circuit Court of Appeals. We intend to pursue our claim against Marketing for indemnification.

In April 2006, we were added as a defendant in an action in the Superior Court of New Jersey, Middlesex County, filed by a property owner claiming damages against multiple defendants for remediation of contaminated soil. The basis for prosecuting the claim against us is corporate successor liability. The matter was settled in July 2008 in consideration for a payment by us of $600,000, which was made in the third quarter of 2008, plus an additional maximum contingent amount of $40,000 relating to possible future liability for certain third party claims.

In May 2006, we were advised (but not yet served) of a third party complaint filed in an action in the Superior Court of New Jersey, Essex County, against Getty Oil, Inc. and John Doe Corporations, filed by a property owner seeking to impose upon third parties (that may include a subsidiary of the Company) responsibility for damages it may suffer in the action for claims brought against it under federal environmental laws, the State’s Spill Act, the State’s Water Pollution Act and other theories of liability.

In November 2006, an action was commenced by the New Jersey Schools Corporation (“NJSC”) in the Superior Court of New Jersey, Union County seeking reimbursement for costs of approximately $1.0 million related to the removal of abandoned USTs and remediation of soil contamination at a retail motor fuel property that was acquired from us by eminent domain. Prior to the taking, the property was leased to and operated by Marketing. We tendered the matter to Marketing for defense and indemnification. Marketing has declined to accept the tender and has denied liability for the claim. We have filed a compulsory third party claim against Marketing seeking defense and indemnification. In July 2007, Marketing filed a claim against the Company seeking defense and indemnification. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

In May 2007, the Company’s subsidiary received a lease default notice from its sub-landlord pertaining to an alleged underpayment of rent by our subsidiary for a period of time exceeding fifteen years. In June 2007, the Company commenced an action against the sub-landlord seeking an injunction that would preclude the sub-landlord from taking any action to terminate its sublease with our subsidiary or collect the alleged underpayment of rent. The Court issued the injunction preventing termination of the sublease pending determination of the matter. Discovery is ongoing.

In July 2007, subsidiaries of the Company were notified of the commencement of three actions by the NJDEP seeking Natural Resource Damages (“NRDs”) arising out of petroleum releases at properties owned or leased by us. Answers to the complaints and discovery requests were filed by us in each of these cases. In September, 2008, we agreed with NJDEP to a stipulation of dismissal of one of the NRD cases, and in February, 2009, we agreed with NJDEP to a stipulation of dismissal of another of the NRD cases. In each of these stipulations of dismissal, the claims raised in the New Jersey State Court action were dismissed without prejudice to the NJDEP’s right to reassert the same claims in complaints brought in the Federal District Court to be heard in the Multi-District MTBE cases currently pending against us. The third action remains pending. We are favorably disposed to entering into a stipulation with the NJDEP with respect to the final NRD case on the same terms as the other two, and have been advised by the NJDEP that it intends to do so.

In October 2007, the Company received a demand from the State of New York to pay the costs allegedly arising from investigation and remediation of petroleum spills that occurred at a property formerly owned by us and taken by Eminent Domain by the State of New York in 1991. No formal legal action has yet been commenced by the State.

In August, 2008, we were notified by the New York Environmental Protection and Spill Compensation Fund (“NY Spill Fund”) that we and another party had been named as allegedly responsible for certain petroleum contamination discovered in 2007. The claimant in the matter is a property developer who alleges to have incurred approximately $434,000 in petroleum-related remediation costs as a result of contamination on its property which

allegedly derive from two reported spills: one dating back to 1995 at an adjacent site formerly owned by us, and the other occurring in 2006, at an adjacent site owned by the other respondent named in the action. In September 2008, the same claimant also commenced a lawsuit in the New York State Supreme Court against us and the other allegedly responsible party to recover damages based upon the same set of facts. We are vigorously defending the claims against us and have asserted cross claims against the other party.

In September 2008, we received a directive from the NJDEP calling for a remedial investigation and cleanup, by us and other named parties, of petroleum-related contamination found at a retail motor fuel and auto service property. We did not own or lease this property, but did supply gas to the operator of this property in 1985 and 1986. We have responded to the NJDEP and we have tendered the matter to Marketing for defense and indemnification under the Reorganization and Distribution Agreement between Getty Petroleum Corp. (n/k/a/ Getty Properties Corp.) and Marketing dated as of February 1, 1997. However, there can be no assurance that Marketing will accept responsibility for this matter. For additional information regarding developments related to Marketing and the Marketing Leases (as defined below), see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

Matters related to our Newark, New Jersey Terminal and the Lower Passaic River

In September 2003, we received a directive (the “Directive”) issued by the NJDEP under the New Jersey Spill Compensation and Control Act. The Directive indicated that we are one of approximately sixty-six potentially responsible parties for alleged NRDs resulting from discharges of hazardous substances along the lower Passaic River (the “Lower Passaic River”). The Directive alleged, inter alia , that the recipients thereof must conduct an assessment of the natural resources that have been injured by the discharges and implement interim compensatory restoration for the injured natural resources. NJDEP alleges that our liability arises from alleged discharges originating from our Newark, New Jersey Terminal site. Chevron/Texaco was also identified in the Directive. We responded to the Directive by asserting that we were not liable. There has been no material activity and/or communications by NJDEP with respect to the Directive since early after its issuance.

Effective June 22, 2004, the United States Environmental Protection Agency (“EPA”) entered into an Administrative Order on Consent (“AOC”) with 31 parties (some of which are also named in the Directive) who agreed to fund a portion of the costs for EPA to perform a Remedial Investigation and Feasibility Study (“RI/FS”) for the Lower Passaic River. The RI/FS is intended to address the investigation and evaluation of alternative remedial actions with respect to alleged damages to the Lower Passaic River. After being notified by the EPA that they considered us to be a potentially responsible party, we reserved our defenses to liability, became a party to an amended AOC, and joined the Cooperating Parties Group (“CPG”), which consists of the parties which had executed the initial AOC and other parties (including Chevron/Texaco). Pursuant to the amended AOC and subsequent amendments adding additional parties, the CPG has agreed to take over performance of the RI/FS from EPA. The RI/FS does not resolve liability issues for remedial work or restoration of, or compensation for, natural resource damages to the Lower Passaic River, which are not known at this time. As to such matters, separate proceedings or activities are currently ongoing.

In a related action, in December 2005, the State of New Jersey brought suit in the Superior Court of New Jersey, Law Division, against certain companies which the State alleges are responsible for pollution of the Passaic River from a former Diamond Alkali manufacturing plant and seeking recovery of alleged damages incurred and to be incurred on account of alleged discharges of hazardous substances to the Passaic River. On February 4, 2009, certain of these defendants filed third-party complaints against approximately three hundred additional parties, including us as well as the other members of the CPG, seeking contribution for a pro-rata share of response costs, cleanup and removal costs, and other damages.

We have made a demand upon Chevron/Texaco for indemnity under certain agreements between the Company and Chevron/Texaco that allocate environmental liabilities for the Newark Terminal Site between the parties. In response, Chevron/Texaco has asserted that the proceedings and claims are still not yet developed enough to determine the extent to which indemnities apply. Our ultimate liability, if any, in the pending and possible future proceedings pertaining to the Lower Passaic River is uncertain and subject to numerous contingencies which cannot be predicted and the outcome of which are not yet known.

Item 4. Submission of Matters to a Vote of Security Holders

No matter was submitted to a vote of security holders during the three months ended December 31, 2008.

PART II

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

Capital Stock

Our common stock is traded on the New York Stock Exchange (symbol: “GTY”). There were approximately 11,000 shareholders of our common stock as of March 2, 2009, of which approximately 1,400 were holders of record. The price range of our common stock and cash dividends declared with respect to each share of common stock during the years ended December 31, 2008 and 2007 was as follows:


	PRICE RANGE				CASH DIVIDENDS
					CASH DIVIDENDS
PERIOD ENDED	HIGH		LOW		PER SHARE

March 31, 2007	$	32.10	$	27.80	$	.4550
June 30, 2007		30.33		26.17		.4650
September 30, 2007		28.72		23.80		.4650
December 31, 2007		29.23		25.21		.4650
March 31, 2008		28.58		13.33		.4650
June 30, 2008		19.04		14.34		.4650
September 30, 2008		23.12		13.12		.4700
December 31, 2008		22.40		13.35		.4700

For a discussion of potential limitations on our ability to pay future dividends see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity and Capital Resources”.

Issuer Purchases of Equity Securities

None

Sales of Unregistered Securities

None

Stock Performance Graph

We have chosen as our Peer Group the following companies: Commercial Net Lease Realty, Entertainment Properties Trust, Realty Income Corp. and Hospitality Properties Trust. We have chosen these companies as our Peer Group because a substantial segment of each of their businesses is owning and leasing commercial properties. We cannot assure you that our stock performance will continue in the future with the same or similar trends depicted in the graph above. We do not make or endorse any predictions as to future stock performance.

This performance graph and related information shall not be deemed filed for the purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that Section and shall not be deemed to be incorporated by reference into any filing that we make under the Securities Act or the Exchange Act.

(LINE GRAPH)


	2003		2004		2005		2006		2007		2008

Getty Realty Corp.		100.00		117.15		114.35		143.03		132.08		115.55
Standard & Poors 500		100.00		108.99		112.26		127.55		132.06		81.23
Peer Group		100.00		125.57		117.58		155.00		137.96		103.68

Assumes $100 invested at the close of trading on 12/03 in Getty Realty Corp. common stock, Standard & Poor’s 500, and Peer Group.


*	Cumulative total return assumes reinvestment of dividends.

Item 6. Selected Financial Data

GETTY REALTY CORP. AND SUBSIDIARIES
SELECTED FINANCIAL DATA
(in thousands, except per share amounts and number of properties)


	FOR THE YEARS ENDED DECEMBER 31,

	2008			2007 (a)			2006			2005			2004

OPERATING DATA:
Revenues from rental properties	$	81,163		$	78,069		$	71,329		$	70,264		$	65,188
Earnings before income taxes and discontinued operations		39,162			28,110	(b)		41,228			43,211			38,525
Income tax benefit (c)		—			—			700			1,494			—

Earnings from continuing operations		39,162			28,110			41,928			44,705			38,525
Earnings from discontinued operations		2,648			5,784			797			743			827

Net earnings		41,810			33,894			42,725			45,448			39,352
Diluted earnings per common share:
Earnings from continuing operations		1.58			1.13			1.69			1.81			1.56
Net earnings		1.69			1.37			1.73			1.84			1.59
Diluted weighted-average common shares outstanding		24,774			24,787			24,759			24,729			24,721
Cash dividends declared per share		1.87			1.85			1.82			1.76			1.70
FUNDS FROM OPERATIONS AND ADJUSTED FUNDS FROM OPERATION (d):
Net earnings		41,810			33,894			42,725			45,448			39,352

Depreciation and amortization of real estate assets		11,875			9,794			7,883			8,113			7,490
Gains on dispositions of real estate		(2,787	)		(6,179	)		(1,581	)		(1,309	)		(618	)

Funds from operations		50,898			37,509			49,027			52,252			46,224
Deferred rental revenue (straight-line rent)		(1,803	)		(3,112	)		(3,010	)		(4,170	)		(4,464	)
Allowance for deferred rental revenue		—			10,494			—			—			—
Amortization of above-market and below-market leases		(790	)		(1,047	)		—			—			—
Income tax benefit (c)		—			—			(700	)		(1,494	)		—

Adjusted funds from operations		48,305			43,844			45,317			46,588			41,760
BALANCE SHEET DATA (AT END OF YEAR):
Real estate before accumulated depreciation and amortization	$	473,567		$	474,254		$	383,558		$	370,495		$	346,590
Total assets		387,813			396,911			310,922			301,468			292,088
Debt		130,250			132,500			45,194			34,224			24,509
Shareholders’ equity		205,957			212,178			225,575			227,883			225,503
NUMBER OF PROPERTIES:
Owned		878			880			836			814			795
Leased		182			203			216			241			250

Total properties		1,060			1,083			1,052			1,055			1,045


(a)	Includes (from the date of the acquisition) the effect of the $84.6 million acquisition of convenience stores and gas station properties from FF-TSY Holding Company II LLC (successor to Trustreet Properties, Inc.) which was substantially completed by the end of the first quarter of 2007.

(b)	Includes the effect of a $10.5 million non-cash reserve for the full amount of the deferred rent receivable recorded as of December 31, 2007 related to approximately 40% of the properties under leases with our primary tenant, Getty Petroleum Marketing, Inc. (For additional information regarding developments related to Marketing and the Marketing Leases, see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations — General — Developments Related to Marketing and the Marketing Leases”.)

(c)	The years ended 2006 and 2005 include income tax benefits recognized due to the elimination of, or reduction in, amounts accrued for uncertain tax positions related to being taxed as a C-corp. prior to our election to be


	taxed as a real estate investment trust (“REIT”) under the federal income tax laws in 2001. Income taxes have not had a significant impact on our earnings since we first elected to be treated as a REIT.

(d)	In addition to measurements defined by accounting principles generally accepted in the United States of America (“GAAP”), our management also focuses on funds from operations (“FFO”) and adjusted funds from operations (“AFFO”) to measure our performance. FFO is generally considered to be an appropriate supplemental non-GAAP measure of the performance of real estate investment trusts (“REITs”). FFO is defined by the National Association of Real Estate Investment Trusts as net earnings before depreciation and amortization of real estate assets, gains or losses on dispositions of real estate, (including such non-FFO items reported in discontinued operations), extraordinary items, and cumulative effect of accounting change. Other REITs may use definitions of FFO and/or AFFO that are different than ours and; accordingly, may not be comparable.

	We believe that FFO is helpful to investors in measuring our performance because FFO excludes various items included in GAAP net earnings that do not relate to, or are not indicative of, our fundamental operating performance such as gains or losses from property dispositions and depreciation and amortization of real estate assets. In our case, however, GAAP net earnings and FFO include the significant impact of deferred rental revenue (straight-line rental revenue) and the net amortization of above-market and below-market leases on our recognition of revenue from rental properties, as offset by the impact of related collection reserves. Deferred rental revenue results primarily from fixed rental increases scheduled under certain leases with our tenants. In accordance with GAAP, the aggregate minimum rent due over the current term of these leases is recognized on a straight-line basis rather than when the payment is due. The present value of the difference between the fair market rent and the contractual rent for in-place leases at the time properties are acquired is amortized into revenue from rental properties over the remaining lives of the in-place leases. GAAP net earnings and FFO also include income tax benefits recognized due to the elimination of, or reduction in, amounts accrued for uncertain tax positions related to being taxed as a C-corp. rather than as a REIT prior to 2001 (see note (b) above). As a result, management pays particular attention to AFFO, a supplemental non-GAAP performance measure that we define as FFO less straight-line rental revenue, net amortization of above-market and below-market leases and income tax benefit. In management’s view, AFFO provides a more accurate depiction than FFO of the impact of the scheduled rent increases under these leases, rental revenue from acquired in-place leases and our election to be treated as a REIT under the federal income tax laws beginning in 2001. Neither FFO nor AFFO represent cash generated from operating activities calculated in accordance with GAAP and therefore should not be considered an alternative for GAAP net earnings or as a measure of liquidity.

Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

The following discussion and analysis should be read in conjunction with the “Cautionary Note Regarding Forward-Looking Statements” on page 1; the risks and uncertainties described in “Item 1A. Risk Factors”; the selected financial data in “Item 6.Selected Financial Data”; and the consolidated financial statements and related notes in “Item 8. Financial Statements and Supplementary Data”.

GENERAL

Real Estate Investment Trust

We are a real estate investment trust (“REIT”) specializing in the ownership and leasing of retail motor fuel and convenience store properties and petroleum distribution terminals. We elected to be treated as a REIT under the federal income tax laws beginning January 1, 2001. As a REIT, we are not subject to federal corporate income tax on the taxable income we distribute to our shareholders. In order to continue to qualify for taxation as a REIT, we are required, among other things, to distribute at least ninety percent of our taxable income to shareholders each year.

Retail Petroleum Marketing Business

We lease or sublet our properties primarily to distributors and retailers engaged in the sale of gasoline and other motor fuel products, convenience store products and automotive repair services. These tenants are responsible for the payment of taxes, maintenance, repair, insurance and other operating expenses and for managing the actual

operations conducted at these properties. In addition, approximately twenty of our properties are directly leased by us to others for other uses such as fast food restaurants, automobile sales and other retail purposes. In those instances where we determine that the highest and best use for our properties is no longer a retail motor fuel outlet, we will seek alternative tenants or buyers for such properties as opportunities arise. As of December 31, 2008, we leased eight hundred sixty-four of our one thousand sixty properties on a long-term basis to Getty Petroleum Marketing Inc. (“Marketing”). Eight hundred fifty-four of the properties are leased to Marketing under a unitary master lease (the “Master Lease”) with an initial term effective through December 2015 and supplemental leases for ten properties with initial terms of varying expiration dates (collectively with the Master Lease, the “Marketing Leases”). Marketing was spun-off to our shareholders as a separate publicly held company in March 1997 and, in December 2000; Marketing was acquired by a subsidiary of OAO LUKoil (“Lukoil”), one of the largest integrated Russian oil companies.

Marketing’s financial results depend largely on retail petroleum marketing margins from the sale of refined petroleum products at margins in excess of its fixed and variable expenses and rental income from subtenants who operate their convenience stores, automotive repair service or other businesses at our properties. As permitted under the terms of our leases with Marketing, Marketing can generally use each property for any lawful purpose, or for no purpose whatsoever. The petroleum marketing industry has been and continues to be volatile and highly competitive. (For information regarding factors that could adversely affect us relating to Marketing, or our other lessees, see “Item 1A. Risk Factors”.)

Developments Related to Marketing and the Marketing Leases

In accordance with accounting principles generally accepted in the United States of America (“GAAP”), the aggregate minimum rent due over the current terms of the Marketing Leases, substantially all of which are scheduled to expire in December 2015, is recognized on a straight-line basis rather than when payment is due. We have recorded the cumulative difference between lease revenue recognized under this straight line accounting method and the lease revenue recognized when payment is due under the contractual payment terms as deferred rent receivable on our consolidated balance sheet. We provide reserves for a portion of the recorded deferred rent receivable if circumstances indicate that a property may be disposed of before the end of the current lease term or if it is not reasonable to assume that a tenant will make all of its contractual lease payments during the current lease term. Our assessments and assumptions regarding the recoverability of the deferred rent receivable related to the properties subject to the Marketing Leases are reviewed on a regular basis and such assessments and assumptions are subject to change.

We have had periodic discussions with representatives of Marketing regarding potential modifications to the Marketing Leases and, in 2007, during the course of such discussions, Marketing proposed to (i) remove approximately 40% of the properties (the “Subject Properties”) from the Marketing Leases and eliminate payment of rent to us, and eliminate or reduce payment of operating expenses, with respect to the Subject Properties, and (ii) reduce the aggregate amount of rent payable to us for the approximately 60% of the properties that would remain under the Marketing Leases (the “Remaining Properties”). Representatives of Marketing have also indicated to us that they are considering significant changes to Marketing’s business model. In light of these developments and the continued deterioration in Marketing’s annual financial performance (as discussed below), in March 2008, we decided to attempt to negotiate with Marketing for a modification of the Marketing Leases which removes the Subject Properties from the Marketing Leases. We have held periodic discussions with Marketing since March 2008 in our attempt to negotiate a modification of the Marketing Leases to remove the Subject Properties. Although we continue to remove individual locations from the Master Lease as mutually beneficial opportunities arise, there has

been no agreement between us and Marketing on any principal terms that would be the basis for a definitive Master Lease modification agreement. If Marketing ultimately determines that its business strategy is to exit all of the properties it leases from us or to divest a composition of properties different from the properties comprising the Subject Properties, such as the revised list of properties provided to us by Marketing in the second quarter of 2008 which includes approximately 45% of the properties Marketing leases from us (the “Revised Subject Properties”), it is our intention to cooperate with Marketing in accomplishing those objectives if we determine that it is prudent for us to do so. Any modification of the Marketing Leases that removes a significant number of properties from the Marketing Leases would likely significantly reduce the amount of rent we receive from Marketing and increase our operating expenses. We cannot accurately predict if, or when, the Marketing Leases will be modified or what the terms of any agreement may be if the Marketing Leases are modified. We also cannot accurately predict what actions Marketing and Lukoil may take, and what our recourse may be, whether the Marketing Leases are modified or not.

We intend either to re-let or sell any properties removed from the Marketing Leases and reinvest the realized sales proceeds in new properties. We intend to seek replacement tenants or buyers for properties removed from the Marketing Leases either individually, in groups of properties, or by seeking a single tenant for the entire portfolio of properties subject to the Marketing Leases. Although we are the fee or leasehold owner of the properties subject to the Marketing Leases and the owner of the Getty® brand and have prior experience with tenants who operate their gas stations, convenience stores, automotive repair services or other businesses at our properties; in the event that the properties are removed from the Marketing Leases, we cannot accurately predict if, when, or on what terms, such properties could be re-let or sold.

We recorded a reserve of $10.5 million in 2007 representing the full amount of the deferred rent receivable recorded related to the Subject Properties as of December 31, 2007. Providing the $10.5 million non-cash deferred rent receivable reserve reduced our net earnings and our funds from operations for 2007 but did not impact our cash flow from operating activities or adjusted funds from operations since the impact of the straight-line method of accounting is not included in our determination of adjusted funds from operations. (For additional information regarding funds from operations and adjusted funds from operations, which are non-GAAP measures, see “— General — Supplemental Non-GAAP Measures” below.) As of December 31, 2008 we had a reserve of $10.0 million for the deferred rent receivable due from Marketing representing the full amount of the deferred rent receivable recorded related to the Subject Properties as of that date. We have not provided a deferred rent receivable reserve related to the Remaining Properties since, based on our assessments and assumptions, we continue to believe that it is probable that we will collect the deferred rent receivable related to the Remaining Properties of $20.5 million as of December 31, 2008 and that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases. We anticipate that the rental revenue for the Remaining Properties will continue to be recognized on a straight-line basis. As required by the straight-line method of accounting, beginning with the first quarter of 2008, the rental revenue for the Subject Properties was, and for future periods, is expected to be, effectively recognized when payment is due under the contractual payment terms. Although we have adjusted the estimated useful lives of certain long-lived assets for the Subject Properties, we believe that no impairment charge was necessary for the Subject Properties as of December 31, 2008 or 2007 pursuant to the provisions of Statement of Financial Accounting Standards No. 144. The impact to depreciation expense due to adjusting the estimated lives for certain long-lived assets beginning with the year ended December 31, 2008 was not material.

agreements between Marketing and us relating to Marketing’s business and the properties subject to the Marketing Leases (collectively the “Marketing Environmental Liabilities”). We may ultimately be responsible to directly pay for Marketing Environmental Liabilities as the property owner if Marketing fails to pay them. Additionally, we will be required to accrue for Marketing Environmental Liabilities if we determine that it is probable that Marketing will not meet its obligations or if our assumptions regarding the ultimate allocation methods and share of responsibility that we used to allocate environmental liabilities changes as a result of the factors discussed above, or otherwise. However, we continue to believe that it is not probable that Marketing will not pay for substantially all of the Marketing Environmental Liabilities since we believe that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases and, accordingly, we did not accrue for the Marketing Environmental Liabilities as of December 31, 2008 or December 31, 2007. Nonetheless, we have determined that the aggregate amount of the Marketing Environmental Liabilities (as estimated by us based on our assumptions and analysis of information currently available to us) could be material to us if we were required to accrue for all of the Marketing Environmental Liabilities in the future since we believe that it is reasonably possible that as a result of such accrual, we may not be in compliance with the existing financial covenants in our Credit Agreement. Such non-compliance could result in an event of default which, if not cured or waived, could result in the acceleration of all of our indebtedness under the Credit Agreement.

Should our assessments, assumptions and beliefs prove to be incorrect, or if circumstances change, the conclusions we reached may change relating to (i) whether some or all of the Subject or Remaining Properties are likely to be removed from the Marketing Leases (ii) recoverability of the deferred rent receivable for some or all of the Subject or Remaining Properties, (iii) potential impairment of the Subject or Remaining Properties, and (iv) Marketing’s ability to pay the Marketing Environmental Liabilities. We intend to regularly review our assumptions that affect the accounting for deferred rent receivable; long-lived assets; environmental litigation accruals; environmental remediation liabilities; and related recoveries from state underground storage tank funds, which may result in material adjustments to the amounts recorded for these assets and liabilities, and as a result of which, we may not be in compliance with the financial covenants in our Credit Agreement. Accordingly, we may be required to (i) reserve additional amounts of the deferred rent receivable related to the Remaining Properties, (ii) record an impairment charge related to the Subject or Remaining Properties, or (iii) accrue for Marketing Environmental Liabilities as a result of the potential or actual modification of the Marketing Leases or other factors.

We cannot provide any assurance that Marketing will continue to pay its debts or meet its rental, environmental or other obligations under the Marketing Leases prior or subsequent to any potential modification of the Marketing Leases. In the event that Marketing cannot or will not perform its rental, environmental or other obligations under the Marketing Leases; if the Marketing Leases are modified significantly or terminated; if we determine that it is probable that Marketing will not meet its environmental obligations and we accrue for such liabilities; if we are unable to promptly re-let or sell the properties subject to the Marketing Leases; or, if we change our assumptions that affect the accounting for rental revenue or Marketing Environmental Liabilities related to the Marketing Leases and various other agreements; our business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends and/or stock price may be materially adversely affected.

Unresolved Staff Comments

One comment remains unresolved as part of a periodic review commenced in 2004 by the Division of Corporation Finance of the SEC of our Annual Report on Form 10-K for the year ended December 31, 2003 pertaining to the SEC’s position that we must include the financial statements and summarized financial data of Marketing in our periodic filings, which Marketing contends is prohibited by the terms of the Master Lease. In June 2005, the SEC indicated that, unless we file Marketing’s financial statements and summarized financial data with our periodic reports: (i) it will not consider our Annual Reports on Forms 10-K for the years beginning with 2000 to be compliant; (ii) it will not consider us to be current in our reporting requirements; (iii) it will not be in a position to declare effective any registration statements we may file for public offerings of our securities; and (iv) we should consider how the SEC’s conclusion impacts our ability to make offers and sales of our securities under existing registration statements and if we have a liability for such offers and sales made pursuant to registration statements that did not contain the financial statements of Marketing.

applicable to our particular circumstances and we believe that, even if it were, we should be entitled to certain relief from compliance with such requirements. Marketing generally subleases our properties to independent, individual service station/convenience store operators (subtenants). Consequently, we believe that we, as the owner of these properties and the Getty® brand, could re-let these properties to the existing subtenants (except for those properties that are vacant) who operate their convenience stores, automotive repair services or other businesses at our properties, or to other new or replacement tenants, at market rents although we cannot accurately predict if, when, or on what terms, such properties would be re-let or sold. The SEC did not accept our positions regarding the inclusion of Marketing’s financial statements in our filings. We have had no communication with the SEC since 2005 regarding the unresolved comment. We cannot accurately predict the consequences if we are ultimately unable to resolve this outstanding comment.

Supplemental Non-GAAP Measures

We manage our business to enhance the value of our real estate portfolio and, as a REIT, place particular emphasis on minimizing risk and generating cash sufficient to make required distributions to shareholders of at least ninety percent of our taxable income each year. In addition to measurements defined by accounting principles generally accepted in the United States of America (“GAAP”), our management also focuses on funds from operations available to common shareholders (“FFO”) and adjusted funds from operations available to common shareholders (“AFFO”) to measure our performance. FFO is generally considered to be an appropriate supplemental non-GAAP measure of the performance of REITs. FFO is defined by the National Association of Real Estate Investment Trusts as net earnings before depreciation and amortization of real estate assets, gains or losses on dispositions of real estate, (including such non-FFO items reported in discontinued operations), extraordinary items and cumulative effect of accounting change. Other REITs may use definitions of FFO and/or AFFO that are different than ours and; accordingly, may not be comparable.

We believe that FFO is helpful to investors in measuring our performance because FFO excludes various items included in GAAP net earnings that do not relate to, or are not indicative of, our fundamental operating performance such as gains or losses from property dispositions and depreciation and amortization of real estate assets. In our case, however, GAAP net earnings and FFO include the significant impact of deferred rental revenue (straight-line rental revenue) and the net amortization of above-market and below-market leases on our recognition of revenues from rental properties, as offset by the impact of related collection reserves. Deferred rental revenue results primarily from fixed rental increases scheduled under certain leases with our tenants. In accordance with GAAP, the aggregate minimum rent due over the current term of these leases are recognized on a straight-line basis rather than when payment is due. The present value of the difference between the fair market rent and the contractual rent for in-place leases at the time properties are acquired is amortized into revenue from rental properties over the remaining lives of the in-place leases. GAAP net earnings and FFO also include income tax benefits recognized due to the elimination of, or a net reduction in, amounts accrued for uncertain tax positions related to being taxed as a C-corp., rather than as a REIT, prior to 2001. As a result, management pays particular attention to AFFO, a supplemental non-GAAP performance measure that we define as FFO less straight-line rental revenue, net amortization of above-market and below-market leases and income tax benefit. In management’s view, AFFO provides a more accurate depiction than FFO of the impact of scheduled rent increases under these leases, rental revenue from acquired in-place leases and our election to be treated as a REIT under the federal income tax laws beginning in 2001. Neither FFO nor AFFO represent cash generated from operating activities calculated in accordance with GAAP and therefore these measures should not be considered an alternative for GAAP net earnings or as a measure of liquidity. For a reconciliation of FFO and AFFO, see “Item 6. Selected Financial Data”.

Net earnings, earning from continuing operations and FFO for 2007 were reduced by all or substantially all of the non-cash $10.5 million reserve for the deferred rent receivable recorded as of December 31, 2007 for approximately 40% of the properties leased to Marketing under the Marketing Leases. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.) If the applicable amount of the non-cash reserve were added to our 2007 net earnings, earning from continuing operations and FFO; net earnings would have been $44.4 million, or $1.79 per share, for the year ended December 31, 2007; earnings from continuing operations would have been $38.4 million for the year ended December 31, 2007; and FFO would have been $48.0 million, or $1.94 per share, for the year ended December 31, 2007. Accordingly, as compared to the respective prior year periods; net earnings for 2008 would have decreased by $2.6 million and for 2007 would have increased by $1.7 million; earnings from continuing operations for 2008 would have increased by $0.8 million and for 2007 would have decreased by $3.5 million; and FFO for 2008 would have increased by $2.9 million and for

2007 would have decreased by $1.0 million. We believe that these supplemental non-GAAP measures for 2007 are important to assist in the analysis of our performance for 2008 as compared to 2007 and 2007 as compared to 2006, exclusive of the impact of the non-cash reserve on our results of operations and are reconciled below (in thousands):


	Non- adjusted		Reserve		As Adjusted

Net earnings	$	33,894	$	10,494	$	44,388
Earnings from continuing operations		28,110		10,312		38,422
Funds from operations		37,509		10,494		48,003

2007 and 2008 Acquisitions

Effective March 31, 2007, we acquired fifty-nine convenience store and retail motor fuel properties in ten states from various subsidiaries of FF-TSY Holding Company II, LLC (the successor to Trustreet Properties, Inc.) (“Trustreet”), a subsidiary of General Electric Capital Corporation, for cash with funds drawn under our credit facility. Effective April 23, 2007, we acquired five additional properties from Trustreet. The aggregate cost of the acquisitions, including transaction costs, was approximately $84.5 million. Substantially all of the properties are triple-net leased to tenants who previously leased the properties from the seller. The leases generally provide that the tenants are responsible for substantially all existing and future environmental conditions at the properties. In addition, in 2007, we exercised our fixed price purchase option for seven leased properties, purchased two properties and redeveloped one property by purchasing land adjacent to it and building a new convenience store on the existing site. In 2008 we exercised our fixed price purchase option for three leased properties and purchased six properties.

RESULTS OF OPERATIONS

Year ended December 31, 2008 compared to year ended December 31, 2007

Revenues from rental properties increased by $3.1 million to $81.2 million for the year ended December 31, 2008, as compared to $78.1 million for 2007. We received approximately $60.4 million for 2008, and $59.7 million for 2007, from properties leased to Marketing under the Marketing Leases. We also received rent of $18.2 million for 2008 and $14.8 million for 2007 from other tenants. The increase in rent received was primarily due to rent from properties acquired in March 2007, and rent escalations, partially offset by the effect of dispositions of real estate. In addition, revenues from rental properties include deferred rental revenue of $1.7 million for 2008, as compared to $2.6 million for 2007, recorded as required by GAAP, related to fixed rent increases scheduled under certain leases with our tenants. The aggregate minimum rent due over the current term of these leases are recognized on a straight-line basis rather than when payment is due. Revenues from rental properties also include $0.8 million and $1.0 million of net amortization of above-market and below-market leases primarily related to the properties acquired in 2007. The present value of the difference between the fair market rent and the contractual rent for in-place leases at the time properties are acquired is amortized into revenue from rental properties over the remaining lives of the in-place leases.

Rental property expenses, which are primarily comprised of rent expense and real estate and other state and local taxes, were $9.4 million for 2008, as compared to $9.3 million for 2007. Increases in real estate and other state and local taxes were partially offset by the decrease in rent expense which was principally due to the reduction in the number of leased locations compared to the prior year.

Environmental expenses, net of estimated recoveries from state underground storage tank (“UST” or “USTs”) funds for 2008 were $7.4 million, as compared to $8.2 million for 2007. The decrease was primarily due to a $0.5 million decrease in change in net estimated environmental costs, and a $0.4 million net decrease in environmental related litigation reserves and legal fees as compared to the prior year period.

General and administrative expenses for 2008 were $6.8 million, as compared to $6.7 million recorded for 2007. The increase in general and administrative expenses was due to $0.5 million of higher professional fees associated with previously disclosed potential modification of the Marketing Leases which was partially offset by a $0.2 million reduction in insurance loss reserves and a $0.3 million reduction in employee related expenses. The insurance loss reserves were established under our self funded insurance program that was terminated in 1997. Employee related expenses recorded in 2007 include the payment of severance in connection with the resignation of Mr. Andy Smith, the former President and Chief Legal Officer of the Company.

Allowance for deferred rent receivable reported in continuing operations and discontinued operations were $10.3 million and $0.2 million, respectively, for the year ended December 31, 2007. The non-cash allowance was provided in 2007 since we could no longer reasonably assume that we will collect all of the rent due to us related to approximately 40% of the properties leased to Marketing for the remainder of the current terms of the Marketing Leases. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.)

Depreciation and amortization expense for 2008 was $11.8 million, as compared to $9.6 million for 2007. The increase was primarily due to properties acquired in 2007 and the acceleration of depreciation expense resulting from the reduction in the estimated useful lives of certain assets which may be removed from the unitary lease with Marketing, which increases were partially offset by the effect of dispositions of real estate and lease expirations.

As a result, total operating expenses decreased by approximately $8.7 million for 2008 as compared to 2007.

Other income, net, substantially all of which is comprised of certain gains from dispositions of real estate and leasehold interests, decreased by $1.5 million to $0.4 million for 2008, as compared to $1.9 million for 2007. Gains on dispositions of real estate from discontinued operations were $2.4 million for 2008 as compared to $4.6 million for 2007. Gain on dispositions of real estate in 2008 decreased by an aggregate of $3.4 million to $2.8 million, as compared to $6.2 million for the prior year. For 2008, there were eleven property dispositions and four partial land takings under eminent domain. For 2007, there were thirteen property dispositions, a partial land taking under eminent domain and an increase in the awards for two takings that occurred in prior years. Property dispositions for 2008 and 2007 include seven and six properties, respectively, that were mutually agreed to be removed from the Marketing Leases prior to their scheduled lease expiration.

Interest expense was $7.0 million for 2008, as compared to $7.8 million for 2007. The decrease was due to reduction in interest rates, partially offset by increased average borrowings outstanding used to finance the acquisition of properties in 2007.

As a result, net earnings were $41.8 million for 2008, as compared to $33.9 million for 2007, an increase of 23.4%, or $7.9 million. Earnings from continuing operations were $39.2 million for 2008, as compared to $28.1 million for 2007, an increase of 39.3%, or $11.1 million. For the same period, FFO increased by 35.7% to $50.9 million, as compared to $37.5 million for prior year period and AFFO increased by 10.2%, or $4.5 million, to $48.3 million, as compared to $43.8 million for 2007. The increase in FFO for 2008 was primarily due to the changes in net earnings described above but excludes a $2.1 million increase in depreciation and amortization expense and a $3.4 million decrease in gains on dispositions of real estate. The increase in AFFO for 2008 also excludes a $1.3 million decrease in deferred rental revenue, a $.03 million decrease in net amortization of above-market and below-market leases and a $10.5 million allowance for deferred rent receivable recorded in 2007 (which are included in net earnings and FFO but are excluded from AFFO).

Diluted earnings per share were $1.69 per share for 2008, an increase of $0.32 per share, as compared to $1.37 per share for 2007. Diluted FFO per share for 2008 was $2.05 per share, an increase of $0.54 per share, as compared to 2007. Diluted AFFO per share for 2008 was $1.95 per share, an increase of $0.18 per share, as compared to 2007.

Year ended December 31, 2007 compared to year ended December 31, 2006

Revenues from rental properties increased by $6.8 million to $78.1 million for the year ended December 31, 2007, as compared to $71.3 million for 2006. We received approximately $59.7 million for 2007, and $59.5 million for 2006, from properties leased to Marketing under the Marketing Leases. We also received rent of $14.8 million for 2007 and $8.9 million for 2006 from other tenants. The increase in rent received was primarily due to rent from properties acquired in March 2007 and February 2006, and rent escalations, partially offset by the effect of dispositions of real estate. In addition, revenues from rental properties include deferred rental revenue of $2.6 million for 2007, as compared to $3.0 million for 2006, recorded as required by GAAP, related to fixed rent increases scheduled under certain leases with our tenants. The aggregate minimum rent due over the current term of these leases are recognized on a straight-line basis rather than when payment is due. Revenues from rental properties also include $1.0 million of net amortization of above-market and below-market leases related to the properties acquired in 2007. The present value of the difference between the fair market rent and the contractual rent for in-

place leases at the time properties are acquired is amortized into revenue from rental properties over the remaining lives of the in-place leases.

Rental property expenses, which are primarily comprised of rent expense and real estate and other state and local taxes, were $9.3 million for 2007, as compared to $9.6 million for 2006. The decrease in rent expense was principally due to the reduction in the number of leased locations compared to the prior year.

Environmental expenses, net of estimated recoveries from state UST funds for 2007 were $8.2 million, as compared to $5.4 million for 2006. The increase was primarily due to a $1.9 million increase in change in net estimated environmental costs, and a $0.8 million increase in environmental related litigation expenses and legal fees as compared to the prior year period. The increase in the net change in estimated environmental costs was due to the increase in project scope or duration and related cost forecasts at a limited number of properties, including one site that we have agreed to remediate as part of a legal settlement with the State of New York and regulator mandated project changes at other sites. The increase in environmental related litigation expenses was due to $0.5 million of higher legal fees and $0.3 million of higher litigation loss reserves.

General and administrative expenses for 2007 were $6.7 million, as compared to $5.6 million recorded for 2006. The increase in general and administrative expenses was principally due to $0.5 million of higher employee related expenses, $0.2 million of higher professional fees and a charge of $0.1 million to insurance loss reserves recorded in 2007, as compared to a credit of $0.3 million recorded in 2006. The insurance loss reserves were established under our self funded insurance program that was terminated in 1997. Employee related expenses increased primarily due to the payment of severance in 2007 in connection with the resignation of Mr. Andy Smith, the former President and Chief Legal Officer of the Company.

Allowance for deferred rent receivable reported in continuing operations and discontinued operations were $10.3 million and $0.2 million, respectively, for the quarter and year ended December 31, 2007. The non-cash allowance was provided since we can no longer reasonably assume that we will collect all of the rent due to us related to approximately 40% of the properties leased to Marketing for the remainder of the current terms of the Marketing Leases. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.)

Depreciation and amortization expense for 2007 was $9.6 million, as compared to $7.8 million for 2006. The increase was primarily due to properties acquired in 2007 and 2006, offset by the effect of dispositions of real estate and lease expirations.

As a result, total operating expenses increased by approximately $15.7 million for 2007 as compared to 2006.

Other income, net, substantially all of which is comprised of certain gains from dispositions of real estate and leasehold interests, was $1.9 million for 2007 and 2006. Gains on dispositions of real estate from discontinued operations were $4.6 million for 2007. Gain on dispositions of real estate in 2007 increased by an aggregate of $4.6 million to $6.2 million, as compared to $1.6 million for the prior year. For 2007, there were thirteen property dispositions, including six properties that were mutually agreed to be removed from the Marketing Leases prior to their scheduled lease expiration, a partial land taking under eminent domain and an increase in the awards for two takings that occurred in prior years, as compared to seven property dispositions, a total property taking and seven partial land takings recorded in the prior year period.

Interest expense was $7.8 million for 2007, as compared to $3.5 million for 2006. The increase was primarily due to increased borrowings used to finance the acquisition of properties in 2007 and 2006.

The income tax benefit of $0.7 million recorded in 2006 was recognized due to the elimination of the accrual for uncertain tax positions since management believes that the uncertainties regarding these exposures have been resolved or that it is no longer likely that the exposure will result in a liability upon review. However, the ultimate resolution of these matters may have a significant impact on our results of operations for any single fiscal year or interim period.

As a result, net earnings were $33.9 million for 2007, as compared to $42.7 million for 2006, a decrease of 20.7%, or $8.8 million. Earnings from continuing operations were $28.1 million for 2007, as compared to $41.9 million for 2006, a decrease of 33.0%, or $13.8 million. For the same period, FFO decreased by 23.5% to $37.5 million, as compared to $49.0 million for prior year period and AFFO decreased by 3.3%, or $1.5 million, to $43.8 million, as compared to $45.3 million for 2006. The decrease in FFO for 2007 was primarily due to the changes in net earnings described above but excludes a $1.9 million increase in depreciation and amortization expense and a $4.6 million increase in gains on dispositions of real estate. The decrease in AFFO for 2007 also excludes a $0.7 million decrease in income tax benefit, a $0.1 million decrease in deferred rental revenue, a $1.0 million increase in net amortization of above-market and below-market leases and a $10.5 million allowance for deferred rent receivable recorded in 2007 (which are included in net earnings and FFO but are excluded from AFFO).

Diluted earnings per share were $1.37 per share for 2007, a decrease of $0.36 per share, as compared to $1.73 per share for 2006. Diluted FFO per share for 2007 was $1.51 per share, a decrease of $0.47 per share, as compared to 2006. Diluted AFFO per share for 2007 was $1.77 per share, a decrease of $0.06 per share, as compared to 2006.

LIQUIDITY AND CAPITAL RESOURCES

Our principal sources of liquidity are the cash flows from our business, funds available under a revolving credit agreement that expires in 2011 and available cash and cash equivalents. Management believes that our operating cash needs for the next twelve months can be met by cash flows from operations, borrowings under our credit agreement and available cash and cash equivalents.

The current disruption in the credit markets and the resulting impact on the availability of funding generally may limit our access to one or more funding sources. In addition, we expect that the costs associated with any additional borrowings we may undertake may be adversely impacted, as compared to such costs prior to the disruption of the credit markets. The United States credit markets are currently experiencing an unprecedented contraction. As a result of the tightening credit markets, we may not be able to obtain additional financing on favorable terms, or at all. If one or more of the financial institutions that supports our credit agreement fails, we may not be able to find a replacement, which would negatively impact our ability to borrow under our credit agreement. In addition, if the current pressures on credit continue or worsen, we may not be able to refinance our outstanding debt when due, which could have a material adverse effect on us.

We have a $175.0 million amended and restated senior unsecured revolving credit agreement (the “Credit Agreement”) with a group of domestic commercial banks led by JPMorgan Chase Bank, N.A. (the “Bank Syndicate”) which expires in March 2011. The Credit Agreement does not provide for scheduled reductions in the principal balance prior to its maturity. The Credit Agreement permits borrowings at an interest rate equal to the sum of a base rate plus a margin of 0.0% or 0.25% or a LIBOR rate plus a margin of 1.0%, 1.25% or 1.5%. The applicable margin is based on our leverage ratio at the end of the prior calendar quarter, as defined in the Credit Agreement, and is adjusted effective mid-quarter when our quarterly financial results are reported to the Bank Syndicate. Based on our leverage ratio as of December 31, 2008, the applicable margin is 0.0% for base rate borrowings and will increase to 1.25% in the first quarter of 2009 for our LIBOR rate borrowings.

Subject to the terms of the Credit Agreement, we have the option to extend the term of the Credit Agreement for one additional year to March 2012 and/or, subject to approval by the Bank Syndicate, increase the amount of the credit facility available pursuant to the Credit Agreement by $125,000,000 to $300,000,000. We do not expect to exercise our option to increase the amount of the Credit Agreement at this time. In addition, based on the current lack of liquidity in the credit markets, we believe that we would need to renegotiate certain terms in the Credit Agreement in order to obtain approval from the Bank Syndicate to increase the amount of the credit facility at this time. No assurance can be given that such approval from the Bank Syndicate will be obtained on terms acceptable to us, if at all. The annual commitment fee on the unused Credit Agreement ranges from 0.10% to 0.20% based on the average amount of borrowings outstanding. The Credit Agreement contains customary terms and conditions, including customary financial covenants such as leverage and coverage ratios and other customary covenants, including limitations on our ability to incur debt and pay dividends and maintenance of tangible net worth, and events of default, including change of control and failure to maintain REIT status. A material adverse effect on our business, assets, prospects or condition, financial or otherwise, would also result in an event of default. Any event of

default, if not cured or waived, could result in the acceleration of all of our indebtedness under our Credit Agreement.

We entered into a $45.0 million LIBOR based interest rate swap agreement with JPMorgan Chase Bank, N.A. as the counterparty (the “Swap Agreement”), effective through June 30, 2011. The Swap Agreement is intended to hedge our current exposure to market interest rate risk by effectively fixing, at 5.44%, the LIBOR component of the interest rate determined under our existing Credit Agreement or future exposure to variable interest rate risk due to borrowing arrangements that may be entered into prior to the expiration of the Swap Agreement. As a result of the Swap Agreement, as of December 31, 2008, $45.0 million of our LIBOR based borrowings under the Credit Agreement bear interest at an effective rate of 6.44%.

Total borrowings outstanding under the Credit Agreement at December 31, 2008 were $130.3 million, bearing interest at a weighted-average effective rate of 3.8% per annum. The weighted-average effective rate is based on $85.3 million of LIBOR rate borrowings floating at market rates plus a margin of 1.0% and $45.0 million of LIBOR rate borrowings effectively fixed at 5.44% by the Swap Agreement plus a margin of 1.0%. We had $44.7 million available under the terms of the Credit Agreement as of December 31, 2008.

Since we generally lease our properties on a triple-net basis, we do not incur significant capital expenditures other than those related to acquisitions. Capital expenditures, including acquisitions, for 2008, 2007 and 2006 amounted to $6.6 million, $90.6 million and $15.5 million, respectively. To the extent that our current sources of liquidity are not sufficient to fund capital expenditures and acquisitions we will require other sources of capital, which may or may not be available on favorable terms or at all. We may be unable to pursue public debt or equity offerings until we resolve with the SEC the outstanding comment regarding disclosure of Marketing’s financial information. We cannot accurately predict how periods of illiquidity in the credit markets, such as current market conditions, will impact our access to capital.

As part of our overall growth strategy, we regularly review opportunities to acquire additional properties and we expect to continue to pursue acquisitions that we believe will benefit our financial performance. To the extent that our current sources of liquidity are not sufficient to fund such acquisitions we will require other sources of capital, which may or may not be available on favorable terms or at all. We cannot accurately predict how periods of illiquidity in the credit markets, such as current market conditions, will impact our access to capital.

We elected to be treated as a REIT under the federal income tax laws with the year beginning January 1, 2001. As a REIT, we are required, among other things, to distribute at least ninety percent of our taxable income to shareholders each year. Payment of dividends is subject to market conditions, our financial condition and other factors, and therefore cannot be assured. In particular, our Credit Agreement prohibits the payment of dividends during certain events of default. Dividends paid to our shareholders aggregated $46.3 million, $45.7 million and $44.8 million for 2008, 2007 and 2006, respectively, and were paid on a quarterly basis during each of those years. We presently intend to pay common stock dividends of $0.47 per share each quarter ($1.88 per share, or $46.7 million, on an annual basis), and commenced doing so with the quarterly dividend declared in May 2008. Due to the developments related to Marketing and the Marketing Leases discussed above, there is no assurance that we will be able to continue to pay dividends at the rate of $0.47 per share per quarter, if at all.

CONTRACTUAL OBLIGATIONS

Our significant contractual obligations and commitments are comprised of borrowings under the Credit Agreement, operating lease payments due to landlords and estimated environmental remediation expenditures, net of estimated recoveries from state UST funds. In addition, as a REIT we are required to pay dividends equal to at least

ninety percent of our taxable income in order to continue to qualify as a REIT. Our contractual obligations and commitments as of December 31, 2008 are summarized below (in thousands):


	TOTAL			LESS THAN ONE YEAR			ONE TO THREE YEARS			THREE TO FIVE YEARS			MORE THAN FIVE YEARS

Operating leases	$	26,620		$	7,338		$	10,571		$	5,235		$	3,476
Borrowing under the Credit Agreement (a)		130,250			—			130,250			—			—
Estimated environmental remediation expenditures (b)		17,660			6,946			6,411			2,480			1,823
Estimated recoveries from state underground storage tank funds (b)		(4,223	)		(1,368	)		(1,479	)		(844	)		(532	)

Estimated net environmental remediation expenditures (b)		13,437			5,578			4,932			1,636			1,291

Total	$	170,307		$	12,916		$	145,753		$	6,871		$	4,767


(a)	Excludes related interest payments. (See “— Liquidity and Capital Resources” above and “Item 7A. Quantitative and Qualitative Disclosures About Market Risk” for additional information.) Subject to the terms of the Credit Agreement, we have the option to extend the term of the Credit Agreement to March 2012.

(b)	Estimated environmental remediation expenditures and estimated recoveries from state UST funds have been adjusted for inflation and discounted to present value.

Generally, the leases with our tenants are “triple-net” leases, with the tenant responsible for the payment of taxes, maintenance, repair, insurance, environmental remediation and other operating expenses. We estimate that Marketing makes annual real estate tax payments for properties leased under the Marketing Leases of approximately $12.3 million and makes additional payments for other operating expenses related to our properties, including environmental remediation costs other than those liabilities that were retained by us. These costs are not reflected in our consolidated financial statements. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.)

We have no significant contractual obligations not fully recorded on our consolidated balance sheets or fully disclosed in the notes to our consolidated financial statements. We have no off-balance sheet arrangements as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated by the Exchange Act.

CRITICAL ACCOUNTING POLICIES AND ESTIMATES

The consolidated financial statements included in this Annual Report on Form 10-K include the accounts of Getty Realty Corp. and our wholly-owned subsidiaries. The preparation of financial statements in accordance with GAAP requires management to make estimates, judgments and assumptions that affect the amounts reported in its financial statements. Although we have made our best estimates, judgments and assumptions regarding future uncertainties relating to the information included in our financial statements, giving due consideration to the accounting policies selected and materiality, actual results could differ from these estimates, judgments and assumptions and such differences could be material.

Estimates, judgments and assumptions underlying the accompanying consolidated financial statements include, but are not limited to, deferred rent receivable, recoveries from state underground storage tank funds, environmental remediation costs, real estate, depreciation and amortization, impairment of long-lived assets, litigation, accrued expenses, income taxes, allocation of the purchase price of properties acquired to the assets acquired and liabilities assumed and exposure to paying an earnings and profits deficiency dividend. The information included in our financial statements that is based on estimates, judgments and assumptions is subject to significant change and is adjusted as circumstances change and as the uncertainties become more clearly defined. Our accounting policies are described in Note 1 of Notes to Consolidated Financial Statements. We believe the following are our critical accounting policies:

Revenue recognition — We earn revenue primarily from operating leases with Marketing and other tenants. We recognize income under the Master Lease with Marketing, and with other tenants, on the straight-line method, which effectively recognizes contractual lease payments evenly over the current term of the leases. The present value of the

difference between the fair market rent and the contractual rent for in-place leases at the time properties are acquired is amortized into revenue from rental properties over the remaining lives of the in-place leases. A critical assumption in applying the straight-line accounting method is that the tenant will make all contractual lease payments during the current lease term and that the net deferred rent receivable of $26.7 million recorded as of December 31, 2008 will be collected when the payment is due, in accordance with the annual rent escalations provided for in the leases. Historically our tenants have generally made rent payments when due. However, we may be required to reverse, or provide reserves for, or adjust our $10.0 million reserve as of December 31, 2008 for, a portion of the recorded deferred rent receivable if it becomes apparent that a property may be disposed of before the end of the current lease term or if circumstances indicate that the tenant may not make all of its contractual lease payments when due during the current term of the lease. The straight-line method requires that rental income related to those properties for which a reserve was provided is effectively recognized in subsequent periods when payment is due under the contractual payment terms. (See developments related to Marketing and the Marketing Leases in “— General — Developments related to Marketing and the Marketing Leases” above for additional information.)

Impairment of long-lived assets — Real estate assets represent “long-lived” assets for accounting purposes. We review the recorded value of long-lived assets for impairment in value whenever any events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable. We may become aware of indicators of potentially impaired assets upon tenant or landlord lease renewals, upon receipt of notices of potential governmental takings and zoning issues, or upon other events that occur in the normal course of business that would cause us to review the operating results of the property. We believe our real estate assets are not carried at amounts in excess of their estimated net realizable fair value amounts.

Income taxes — Our financial results generally do not reflect provisions for current or deferred federal income taxes since we elected to be treated as a REIT under the federal income tax laws effective January 1, 2001. Our intention is to operate in a manner that will allow us to continue to be treated as a REIT and, as a result, we do not expect to pay substantial corporate-level federal income taxes. Many of the REIT requirements, however, are highly technical and complex. If we were to fail to meet the requirements, we may be subject to federal income tax, excise taxes, penalties and interest or we may have to pay a deficiency dividend to eliminate any earnings and profits that were not distributed. Certain states do not follow the federal REIT rules and we have included provisions for these taxes in rental property expenses.

Environmental costs and recoveries from state UST funds — We provide for the estimated fair value of future environmental remediation costs when it is probable that a liability has been incurred and a reasonable estimate of fair value can be made (see “— Environmental Matters” below for additional information). Environmental liabilities and related recoveries are measured based on their expected future cash flows which have been adjusted for inflation and discounted to present value. Since environmental exposures are difficult to assess and estimate and knowledge about these liabilities is not known upon the occurrence of a single event, but rather is gained over a continuum of events, we believe that it is appropriate that our accrual estimates are adjusted as the remediation treatment progresses, as circumstances change and as environmental contingencies become more clearly defined and reasonably estimable. A critical assumption in accruing for these liabilities is that the state environmental laws and regulations will be administered and enforced in the future in a manner that is consistent with past practices. Recoveries of environmental costs from state UST remediation funds, with respect to past and future spending, are accrued as income, net of allowance for collection risk, based on estimated recovery rates developed from our experience with the funds when such recoveries are considered probable. A critical assumption in accruing for these recoveries is that the state UST fund programs will be administered and funded in the future in a manner that is consistent with past practices and that future environmental spending will be eligible for reimbursement at historical rates under these programs. We accrue environmental liabilities based on our share of responsibility as defined in our lease contracts with our tenants and under various other agreements with others or if circumstances indicate that the counter-party may not have the financial resources to pay its share of the costs. It is possible that our assumptions regarding the ultimate allocation method and share of responsibility that we used to allocate environmental liabilities may change, which may result in adjustments to the amounts recorded for environmental litigation accruals, environmental remediation liabilities and related assets. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.) We may ultimately be responsible to directly pay for environmental liabilities as the property owner if Marketing or our other tenants or other counter-parties fail to pay them. In certain environmental matters the effect on future financial results is not subject to reasonable estimation because considerable uncertainty exists both in terms of the probability of loss and the estimate of such

loss. The ultimate liabilities resulting from such lawsuits and claims, if any, may be material to our results of operations in the period in which they are recognized.

Litigation — Legal fees related to litigation are expensed as legal services are performed. We provide for litigation reserves, including certain environmental litigation (see “— Environmental Matters” below for additional information), when it is probable that a liability has been incurred and a reasonable estimate of the liability can be made. If the best estimate of the liability can only be identified as a range, and no amount within the range is a better estimate than any other amount, the minimum of the range is accrued for the liability.

New Accounting Pronouncements — In September 2006, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 157, “Fair Value Measurements” (“SFAS 157”). SFAS 157 provides guidance for using fair value to measure assets and liabilities. SFAS 157 generally applies whenever other standards require assets or liabilities to be measured at fair value. SFAS 157 is effective in fiscal years beginning after November 15, 2007. FASB Staff Position (“FSP”) No. 152, “Effective Date of FASB Statement No. 157”, (“FSP 152”) delayed the effective date of FASB No. 157 by one year for nonfinancial assets and liabilities that are recognized or disclosed at fair value in the financial statements on a non recurring basis to fiscal years beginning after November 15, 2008. The adoption of SFAS 157 in January 2008 has not had a material impact on our financial position and results of operations. We do not believe that the adoption of the provisions of SFAS 157 for nonfinancial assets and liabilities that are recognized or disclosed at fair value on a non recurring basis will have a material impact on our financial position and results of operations.

In December 2007, the FASB issued SFAS No. 141 (revised 2007), “Business Combinations” (“SFAS 141(R)”), which establishes principles and requirements for how the acquirer shall recognize and measure in its financial statements at fair value the identifiable assets acquired, liabilities assumed, any noncontrolling interest in the acquiree and goodwill acquired in a business combination. SFAS 141(R) requires that acquisition costs, which could be material to our future financial results, will be expensed rather than included as part of the basis of the acquisition. The adoption of this standard by us on January 1, 2009 will not result in a write-off of acquisition related transactions costs associated with transactions not yet consummated. SFAS 141(R) is effective for business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008.

ENVIRONMENTAL MATTERS

General

We are subject to numerous existing federal, state and local laws and regulations, including matters relating to the protection of the environment such as the remediation of known contamination and the retirement and decommissioning or removal of long-lived assets including buildings containing hazardous materials, USTs and other equipment. Our tenants are directly responsible for compliance with various environmental laws and regulations as the operators of our properties. Environmental expenses are principally attributable to remediation costs which include installing, operating, maintaining and decommissioning remediation systems, monitoring contamination, and governmental agency reporting incurred in connection with contaminated properties. We seek reimbursement from state UST remediation funds related to these environmental expenses where available.

We enter into leases and various other agreements which allocate responsibility for known and unknown environmental liabilities by establishing the percentage and method of allocating responsibility between the parties. In accordance with the leases with certain of our tenants, we have agreed to bring the leased properties with known environmental contamination to within applicable standards and to regulatory or contractual closure (“Closure”) in an efficient and economical manner. Generally, upon achieving Closure at an individual property, our environmental liability under the lease for that property will be satisfied and future remediation obligations will be the responsibility of our tenant. As of December 31, 2008, we have regulatory approval for remediation action plans in place for two hundred forty-nine (95%) of the two hundred sixty-two properties for which we continue to retain remediation responsibility and the remaining thirteen properties (5%) were in the assessment phase. In addition, we have nominal post-closure compliance obligations at twenty-four properties where we have received “no further action” letters.

It is possible that our assumptions regarding the ultimate allocation methods and share of responsibility that we used to allocate environmental liabilities may change, which may result in adjustments to the amounts recorded for environmental litigation accruals, environmental remediation liabilities and related assets. We will be required to accrue for environmental liabilities that we believe are allocable to others under various other agreements if we determine that it is probable that the counter-party will not meet its environmental obligations. We may ultimately be responsible to directly pay for environmental liabilities as the property owner if the counter-party fails to pay them. The ultimate resolution of these matters could have a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.)

We have not accrued for approximately $1.0 million in costs allegedly incurred by the current property owner in connection with removal of USTs and soil remediation at a property that was leased to and operated by Marketing. We believe that Marketing is responsible for such costs under the terms of the Master Lease and have tendered the matter for defense and indemnification from Marketing, but Marketing has denied its liability for the claim and its responsibility to defend against, and indemnify us for, the claim. We have filed third party claims against Marketing for indemnification in this matter, which claims is currently being actively litigated. Trial is anticipated to be scheduled for the first quarter of 2009. It is reasonably possible that our assumption that Marketing will be ultimately responsible for the claim may change, which may result in our providing an accrual for this and other matters.

As the operator of our properties under the Marketing Leases, Marketing is directly responsible to pay for the remediation of environmental contamination it causes and to comply with various environmental laws and regulations. In addition, the Marketing Leases and various other agreements between Marketing and us allocate responsibility for known and unknown environmental liabilities between Marketing and us relating to the properties subject to the Marketing Leases. Based on various factors, including our assessments and assumptions at this time that Lukoil would not allow Marketing to fail to perform its obligations under the Marketing Leases, we believe that Marketing will continue to pay for substantially all environmental contamination and remediation costs allocated to it under the Marketing Leases. It is possible that our assumptions regarding the ultimate allocation methods and share of responsibility that we used to allocate environmental liabilities may change as a result of the factors discussed above, or otherwise, which may result in adjustments to the amounts recorded for environmental litigation accruals, environmental remediation liabilities and related assets. We may ultimately be responsible to directly pay for environmental liabilities as the property owner if Marketing fails to pay them. We are required to accrue for environmental liabilities that we believe are allocable to Marketing under the Marketing Leases and various other agreements if we determine that it is probable that Marketing will not pay its environmental obligations.

Based upon our assessment of Marketing’s financial condition and certain other factors, including but not limited to those described above, we believe at this time that it is not probable that Marketing will not pay the environmental liabilities allocable to it under the Marketing Leases and various other agreements and, therefore, have not accrued for such environmental liabilities. Our assessments and assumptions that affect the recording of environmental liabilities related to the properties subject to the Marketing Leases are reviewed on a quarterly basis and such assessments and assumptions are subject to change.

We have determined that the aggregate amount of the environmental liabilities attributable to Marketing related to our properties (as estimated by us based on our assumptions and analysis of information currently available to us) (the “Marketing Environmental Liabilities”) could be material to us if we were required to accrue for all of the Marketing Environmental Liabilities in the future since we believe that it is reasonably possible that as a result of such accrual, we may not be in compliance with the existing financial covenants in our Credit Agreement. Such non-compliance could result in an event of default which, if not cured or waived, could result in the acceleration of all of our indebtedness under the Credit Agreement. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.)

The estimated future costs for known environmental remediation requirements are accrued when it is probable that a liability has been incurred and a reasonable estimate of fair value can be made. Environmental liabilities and related recoveries are measured based on their expected future cash flows which have been adjusted for inflation and discounted to present value. The environmental remediation liability is estimated based on the level and impact of contamination at each property and other factors described herein. The accrued liability is the aggregate of the best estimate for the fair value of cost for each component of the liability. Recoveries of environmental costs from state UST remediation funds, with respect to both past and future environmental spending, are accrued at fair value as an offset to environmental expense, net of allowance for collection risk, based on estimated recovery rates developed from our experience with the funds when such recoveries are considered probable.

Environmental exposures are difficult to assess and estimate for numerous reasons, including the extent of contamination, alternative treatment methods that may be applied, location of the property which subjects it to differing local laws and regulations and their interpretations, as well as the time it takes to remediate contamination. In developing our liability for probable and reasonably estimable environmental remediation costs, on a property by property basis, we consider among other things, enacted laws and regulations, assessments of contamination and surrounding geology, quality of information available, currently available technologies for treatment, alternative methods of remediation and prior experience. These accrual estimates are subject to significant change, and are adjusted as the remediation treatment progresses, as circumstances change and as these contingencies become more clearly defined and reasonably estimable.

As of December 31, 2008, we had accrued $13.5 million as management’s best estimate of the net fair value of reasonably estimable environmental remediation costs which is comprised of $17.7 million of estimated environmental obligations and liabilities offset by $4.2 million of estimated recoveries from state UST remediation funds, net of allowance. Environmental expenditures, net of recoveries from UST funds, were $5.0 million, $4.7 million and $3.0 million, respectively, for 2008, 2007 and 2006. For 2008, 2007 and 2006, the net change in estimated remediation cost and accretion expense included in our consolidated statements of operations amounted to $4.7 million, $5.1 million and $3.2 million, respectively, which amounts were net of probable recoveries from state UST remediation funds.

Environmental liabilities and related assets are currently measured at fair value based on their expected future cash flows which have been adjusted for inflation and discounted to present value. We also use probability weighted alternative cash flow forecasts to determine fair value. We assumed a 50% probability factor that the actual environmental expenses will exceed engineering estimates for an amount assumed to equal one year of net expenses aggregating $4.9 million. Accordingly, the environmental accrual as of December 31, 2008 was increased by $1.9 million, net of assumed recoveries and before inflation and present value discount adjustments. The resulting net environmental accrual as of December 31, 2008 was then further increased by $0.9 million for the assumed impact of inflation using an inflation rate of 2.75%. Assuming a credit-adjusted risk-free discount rate of 7.0%, we then reduced the net environmental accrual, as previously adjusted, by a $1.9 million discount to present value. Had we assumed an inflation rate that was 0.5% higher and a discount rate that was 0.5% lower, net environmental liabilities as of December 31, 2008 would have increased by $0.2 million and $0.1 million, respectively, for an aggregate

increase in the net environmental accrual of $0.3 million. However, the aggregate net change in environmental estimates expense recorded during the year ended December 31, 2008 would not have changed significantly if these changes in the assumptions were made effective December 31, 2007.

In view of the uncertainties associated with environmental expenditures, contingencies concerning the developments related to Marketing and the Marketing Leases and contingencies related to other parties, however, we believe it is possible that the fair value of future actual net expenditures could be substantially higher than these estimates. (See “— General — Developments related to Marketing and the Marketing Leases” above for additional information.) Adjustments to accrued liabilities for environmental remediation costs will be reflected in our financial statements as they become probable and a reasonable estimate of fair value can be made. Future environmental costs could cause a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

We cannot predict what environmental legislation or regulations may be enacted in the future or how existing laws or regulations will be administered or interpreted with respect to products or activities to which they have not previously been applied. We cannot predict if state UST fund programs will be administered and funded in the future in a manner that is consistent with past practices and if future environmental spending will continue to be eligible for reimbursement at historical recovery rates under these programs. Compliance with more stringent laws or regulations, as well as more vigorous enforcement policies of the regulatory agencies or stricter interpretation of existing laws, which may develop in the future, could have an adverse effect on our financial position, or that of our tenants, and could require substantial additional expenditures for future remediation.

Environmental litigation

We are subject to various legal proceedings and claims which arise in the ordinary course of our business. In addition, we have retained responsibility for certain legal proceedings and claims relating to the petroleum marketing business that were identified at the time of the Spin-Off. As of December 31, 2008 and 2007, we had accrued $1.7 million and $2.6 million, respectively, for certain of these matters which we believe were appropriate based on information then currently available. It is possible that our assumptions regarding the ultimate allocation method and share of responsibility that we used to allocate environmental liabilities may change, which may result in our providing an accrual, or adjustments to the amounts recorded, for environmental litigation accruals. (For additional information with respect to pending environmental lawsuits and claims see “Item 3. Legal Proceedings”.)

In September 2003, we were notified by the State of New Jersey Department of Environmental Protection (the “NJDEP”) that we are one of approximately sixty-six potentially responsible parties for natural resource damages resulting from discharges of hazardous substances into the Lower Passaic River. The definitive list of potentially responsible parties and their actual responsibility for the alleged damages, the aggregate cost to remediate the Lower Passaic River, the amount of natural resource damages and the method of allocating such amounts among the potentially responsible parties have not been determined. In September 2004, we received a General Notice Letter from the United States Environmental Protection Agency (the “EPA”) (the “EPA Notice”), advising us that we may be a potentially responsible party for costs of remediating certain conditions resulting from discharges of hazardous substances into the Lower Passaic River. ChevronTexaco received the same EPA Notice regarding those same conditions. In a related action, in December 2005, the State of New Jersey brought suit against certain companies which the State alleges are responsible for pollution of the Passaic River from a former Diamond Alkali manufacturing plant. In February 2009, certain of these defendants filed third-party complaints against approximately 300 additional parties, including us, seeking contribution for a pro-rata share of response costs, cleanup and removal costs, and other damages. Additionally, we believe that ChevronTexaco is contractually obligated to indemnify us, pursuant to an indemnification agreement for most of the conditions at the property identified by the NJDEP and the EPA; accordingly, our ultimate legal and financial liability, if any, cannot be estimated with any certainty at this time.

From October 2003 through December 31, 2008, we were notified that we were made party to fifty-four cases in Connecticut, Florida, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Virginia and West Virginia brought by local water providers or governmental agencies. These cases allege various theories of liability due to contamination of groundwater with methyl tertiary butyl ether (“MTBE”) as the basis for claims seeking compensatory and punitive damages. Each case names as defendants approximately fifty petroleum refiners,

manufacturers, distributors and retailers of MTBE, or gasoline containing MTBE. At this time, we have been dismissed from certain of the cases initially filed against us. A significant number of the named defendants other than us have entered into settlements with certain plaintiffs, which affected approximately twenty-seven of the cases to which we are a party. The accuracy of the allegations as they relate to us, our defenses to such claims, the aggregate amount of possible damages, and the method of allocating such amounts among the remaining defendants have not been determined. Accordingly, our ultimate legal and financial liability, if any, cannot be estimated with any certainty at this time.

Item 7A. Quantitative and Qualitative Disclosures about Market Risk

Prior to April 2006, when we entered into the a Swap Agreement with JPMorgan Chase, N.A. (the “Swap Agreement”), we had not used derivative financial or commodity instruments for trading, speculative or any other purpose, and had not entered into any instruments to hedge our exposure to interest rate risk. We do not have any foreign operations, and are therefore not exposed to foreign currency exchange rate risks.

We are exposed to interest rate risk, primarily as a result of our $175.0 million Credit Agreement. Our Credit Agreement, which expires in March 2011, permits borrowings at an interest rate equal to the sum of a base rate plus a margin of 0.0% or 0.25% or a LIBOR rate plus a margin of 1.0%, 1.25% or 1.5%. The applicable margin is based on our leverage ratio at the end of the prior calendar quarter, as defined in the Credit Agreement, and is adjusted effective mid-quarter when our quarterly financial results are reported to the Bank Syndicate. Based on our leverage ratio as of December 31, 2008, the applicable margin is 0.0% for base rate borrowings and will increase to 1.25% in the first quarter of 2009 for our LIBOR rate borrowings.

Total borrowings outstanding under the Credit Agreement at December 31, 2008 were $130.3 million, bearing interest at a weighted-average rate of 3.3% per annum, or a weighted-average effective rate of 3.8% including the impact of the Swap Agreement discussed below. The weighted-average effective rate is based on $85.3 million of LIBOR rate borrowings floating at market rates plus a margin of 1.0% and $45.0 million of LIBOR rate borrowings effectively fixed at 5.44% by the Swap Agreement plus a margin of 1.0%. We use borrowings under the Credit Agreement to finance acquisitions and for general corporate purposes.

We manage our exposure to interest rate risk by minimizing, to the extent feasible, our overall borrowing and monitoring available financing alternatives. Our interest rate risk as of December 31, 2008 has not increased significantly, as compared to December 31, 2007. We entered into a $45.0 million LIBOR based interest rate Swap Agreement, effective through June 30, 2011, to manage a portion of our interest rate risk. The Swap Agreement is intended to hedge $45.0 million of our current exposure to variable interest rate risk by effectively fixing, at 5.44%, the LIBOR component of the interest rate determined under our existing Credit Agreement or future exposure to variable interest rate risk due to borrowing arrangements that may be entered into prior to the expiration of the Swap Agreement. As a result of the Swap Agreement, as of December 31, 2008, $45.0 million of our LIBOR based borrowings under the Credit Agreement bear interest at an effective rate of 6.44%. As a result, we are, and will be, exposed to interest rate risk to the extent that our borrowings exceed the $45.0 million notional amount of the Swap Agreement. As of December 31, 2008, our borrowings exceeded the notional amount of the Swap Agreement by $85.3 million. We do not foresee any significant changes in how we manage our interest rate risk in the near future.

We entered into the $45.0 million notional five year interest rate Swap Agreement, designated and qualifying as a cash flow hedge to reduce our exposure to the variability in future cash flows attributable to changes in the LIBOR rate. Our primary objective when undertaking hedging transactions and derivative positions is to reduce our variable interest rate risk by effectively fixing a portion of the interest rate for existing debt and anticipated refinancing transactions. This in turn, reduces the risks that the variability of cash flows imposes on variable rate debt. Our strategy protects us against future increases in interest rates. Although the Swap Agreement is intended to lessen the impact of rising interest rates, it also exposes us to the risk that the other party to the agreement will not perform, the agreement will be unenforceable and the underlying transactions will fail to qualify as a highly-effective cash flow hedge for accounting purposes.

In the event that we were to settle the Swap Agreement prior to its maturity, if the corresponding LIBOR swap rate for the remaining term of the Swap Agreement is below the 5.44% fixed strike rate at the time we settle the

Swap Agreement, we would be required to make a payment to the Swap Agreement counter-party; if the corresponding LIBOR swap rate is above the fixed strike rate at the time we settle the Swap Agreement, we would receive a payment from the Swap Agreement counter-party. The amount that we would either pay or receive would equal the present value of the basis point differential between the fixed strike rate and the corresponding LIBOR swap rate at the time we settle the Swap Agreement.

Based on our average outstanding borrowings under the Credit Agreement projected at $133.6 million for 2009, an increase in market interest rates of 0.5% for 2009 would decrease our 2009 net income and cash flows by $0.4 million. This amount was determined by calculating the effect of a hypothetical interest rate change on our Credit Agreement borrowings that is not covered by our $45.0 million interest rate Swap Agreement and assumes that the $133.6 million average outstanding borrowings during the fourth quarter of 2008 is indicative of our future average borrowings for 2009 before considering additional borrowings required for future acquisitions. The calculation also assumes that there are no other changes in our financial structure or the terms of our borrowings. Our exposure to fluctuations in interest rates will increase or decrease in the future with increases or decreases in the outstanding amount under our Credit Agreement.

In order to minimize our exposure to credit risk associated with financial instruments, we place our temporary cash investments with high-credit-quality institutions. Temporary cash investments, if any, are held in an overnight bank time deposit with JPMorgan Chase Bank, N.A.

Item 8. Financial Statements and Supplementary Data

GETTY REALTY CORP. INDEX TO FINANCIAL STATEMENTS AND
SUPPLEMENTARY DATA


		(PAGES)


Consolidated Statements of Operations for the years ended December 31, 2008, 2007 and 2006		46
Consolidated Statements of Comprehensive Income for the years ended December 31, 2008, 2007 and 2006		46
Consolidated Balance Sheets as of December 31, 2008 and 2007		47
Consolidated Statements of Cash Flows for the years ended December 31, 2008, 2007 and 2006		48
Notes to Consolidated Financial Statements (including the supplementary financial information contained in Note 9 “Quarterly Financial Data”)		49
Report of Independent Registered Public Accounting Firm		64

GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)


	YEAR ENDED DECEMBER 31,

	2008			2007			2006

Revenues from rental properties	$	81,163		$	78,069		$	71,329
Operating expenses:
Rental property expenses		9,390			9,301			9,619
Environmental expenses, net		7,374			8,190			5,418
General and administrative expenses		6,831			6,669			5,607
Allowance for deferred rent receivable		—			10,312			—
Depreciation and amortization expense		11,784			9,647			7,785

Total expenses		35,379			44,119			28,429

Operating income		45,784			33,950			42,900
Other income, net		412			1,920			1,855
Interest expense		(7,034	)		(7,760	)		(3,527	)

Earnings before income taxes and discontinued operations		39,162			28,110			41,228
Income tax benefit		—			—			700

Earnings from continuing operations		39,162			28,110			41,928
Discontinued operations:
Earnings from operating activities		259			1,216			793
Gains on dispositions of real estate		2,389			4,568			4

Earnings from discontinued operations		2,648			5,784			797

Net earnings	$	41,810		$	33,894		$	42,725

Basic earnings per common share:
Earnings from continuing operations	$	1.58		$	1.14		$	1.70
Earnings from discontinued operations	$	.11		$	.23		$	.03
Net earnings	$	1.69		$	1.37		$	1.73
Diluted earnings per common share:
Earnings from continuing operations	$	1.58		$	1.13		$	1.69
Earnings from discontinued operations	$	.11		$	.23		$	.03
Net earnings	$	1.69		$	1.37		$	1.73
Weighted average shares outstanding:
Basic		24,766			24,765			24,735
Stock options and restricted stock units		8			22			24

Diluted		24,774			24,787			24,759

Dividends declared per share	$	1.87		$	1.85		$	1.82

GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(in thousands)


	YEAR ENDED DECEMBER 31,

	2008			2007			2006

Net earnings	$	41,810		$	33,894		$	42,725
Other comprehensive loss:
Net unrealized loss on interest rate swap		(1,997	)		(1,478	)		(821	)

Comprehensive Income	$	39,813		$	32,416		$	41,904

The accompanying notes are an integral part of these consolidated financial statements.

GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)


	DECEMBER 31,

	2008			2007

ASSETS:
Real Estate:
Land	$	221,540		$	222,194
Buildings and improvements		252,027			252,060

		473,567			474,254
Less — accumulated depreciation and amortization		(129,322	)		(122,465	)

Real estate, net		344,245			351,789
Deferred rent receivable (net of allowance of $10,029 at December 31, 2008 and $10,494 at December 31, 2007)		26,718			24,915
Cash and cash equivalents		2,178			2,071
Recoveries from state underground storage tank funds, net		4,223			4,652
Mortgages and accounts receivable, net		1,533			1,473
Prepaid expenses and other assets		8,916			12,011

Total assets	$	387,813		$	396,911

LIABILITIES AND SHAREHOLDERS’ EQUITY:
Debt	$	130,250		$	132,500
Environmental remediation costs		17,660			18,523
Dividends payable		11,669			11,534
Accounts payable and accrued expenses		22,337			22,176

Total liabilities		181,916			184,733

Commitments and contingencies (notes 2, 3, 5 and 6)
Shareholders’ equity:
Common stock, par value $.01 per share; authorized 50,000,000 shares; issued 24,766,166 at December 31, 2008 and 24,765,065 at December 31, 2007		248			248
Paid-in capital		259,069			258,734
Dividends paid in excess of earnings		(49,124	)		(44,505	)
Accumulated other comprehensive loss		(4,296	)		(2,299	)

Total shareholders’ equity		205,897			212,178

Total liabilities and shareholders’ equity	$	387,813		$	396,911

The accompanying notes are an integral part of these consolidated financial statements.

GETTY REALTY CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)


	YEAR ENDED DECEMBER 31,

	2008			2007			2006

CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings	$	41,810		$	33,894		$	42,725
Adjustments to reconcile net earnings to net cash flow provided by operating activities:
Depreciation and amortization expense		11,875			9,794			7,883
Gain on dispositions of real estate		(2,787	)		(6,179	)		(1,581	)
Deferred rental revenue		(1,803	)		(3,112	)		(3,010	)
Allowance for deferred rent receivable		—			10,494			—
Amortization of above-market and below-market leases		(790	)		(1,047	)		—
Accretion expense		956			974			923
Stock-based employee compensation expense		326			492			186
Changes in assets and liabilities:
Recoveries from state underground storage tank funds, net		827			(379	)		772
Mortgages and accounts receivable, net		(5	)		44			(172	)
Prepaid expenses and other assets		423			(130	)		170
Environmental remediation costs		(2,217	)		(80	)		(1,425	)
Accounts payable and accrued expenses		(1,031	)		(249	)		545
Accrued income taxes		—			—			(700	)

Net cash flow provided by operating activities		47,584			44,516			46,316

CASH FLOWS FROM INVESTING ACTIVITIES:
Property acquisitions and capital expenditures		(6,579	)		(90,636	)		(15,538	)
Proceeds from dispositions of real estate		5,295			8,420			2,462
(Increase) decrease in cash held for property acquisitions		2,397			(2,079	)		(465	)
Collection (issuance) of mortgages receivable, net		(55	)		267			326

Net cash flow provided by (used in) investing activities		1,058			(84,028	)		(13,215	)

CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings (repayments) under credit agreement, net		(2,250	)		87,500			11,000
Cash dividends paid		(46,294	)		(45,650	)		(44,819	)
Credit agreement origination costs		—			(863	)		—
Cash paid in settlement of restricted stock units		—			(405	)		—
Repayment of mortgages payable, net		—			(194	)		(30	)
Proceeds from exercise of stock options		9			—			696

Net cash flow provided by (used in) financing activities		(48,535	)		40,388			(33,153	)

Net increase (decrease) in cash and cash equivalents		107			876			(52	)
Cash and cash equivalents at beginning of year		2,071			1,195			1,247

Cash and cash equivalents at end of year	$	2,178		$	2,071		$	1,195

Supplemental disclosures of cash flow information Cash paid (refunded) during the year for:
Interest	$	6,728		$	7,021		$	2,638
Income taxes, net		708			488			576
Recoveries from state underground storage tank funds		(1,511	)		(1,644	)		(2,128	)
Environmental remediation costs		6,542			6,314			5,132

The accompanying notes are an integral part of these consolidated financial statements.

GETTY REALTY CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Basis of Presentation: The accompanying consolidated financial statements have been prepared in conformity with accounting principles generally accepted in the United States of America (“GAAP”). The consolidated financial statements include the accounts of Getty Realty Corp. and its wholly-owned subsidiaries (the “Company”). The Company is a real estate investment trust (“REIT”) specializing in the ownership and leasing of retail motor fuel and convenience store properties and petroleum distribution terminals. The Company manages and evaluates its operations as a single segment. All significant inter-company accounts and transactions have been eliminated.

Use of Estimates, Judgments and Assumptions: The financial statements have been prepared in conformity with GAAP, which requires the Company’s management to make its best estimates, judgments and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and revenues and expenses during the period reported. While all available information has been considered, actual results could differ from those estimates, judgments and assumptions. Estimates, judgments and assumptions underlying the accompanying consolidated financial statements include, but are not limited to, deferred rent receivable, recoveries from state underground storage tank (“UST” or “USTs”) funds, environmental remediation costs, real estate, depreciation and amortization, impairment of long-lived assets, litigation, accrued expenses, income taxes and the allocation of the purchase price of properties acquired to the assets acquired and liabilities assumed.

Discontinued Operations: The operating results and gains from certain dispositions of real estate sold in 2008 and 2007 have been reclassified as discontinued operations. The results of such properties for the years ended 2007 and 2006 have been reclassified to discontinued operations to conform to the 2008 presentation. Discontinued operations for the year ended December 31, 2008 and 2007 are primarily comprised of gains from property dispositions. The revenue from rental properties and expenses related to the operations of these properties are insignificant for the each of the three years ended December 31, 2008, 2007 and 2006.

Real Estate: Real estate assets are stated at cost less accumulated depreciation and amortization. Upon acquisition of real estate operating properties and leasehold interests, the Company estimates the fair value of acquired tangible assets (consisting of land, buildings and improvements) “as if vacant” and identified intangible assets and liabilities (consisting of leasehold interests, above-market and below-market leases, in-place leases and tenant relationships) and assumed debt. Based on these estimates, the Company allocates the purchase price to the applicable assets and liabilities. When real estate assets are sold or retired, the cost and related accumulated depreciation and amortization is eliminated from the respective accounts and any gain or loss is credited or charged to income. Expenditures for maintenance and repairs are charged to income when incurred.

Depreciation and amortization: Depreciation of real estate is computed on the straight-line method based upon the estimated useful lives of the assets, which generally range from sixteen to twenty-five years for buildings and improvements, or the term of the lease if shorter. Leasehold interests, capitalized above-market and below-market leases, in-place leases and tenant relationships are amortized over the remaining term of the underlying lease.

Impairment of Long-Lived Assets and Long-Lived Assets to Be Disposed Of: Assets are written down to fair value (determined on a nonrecurring basis using a discounted cash flow method and significant unobservable inputs) when events and circumstances indicate that the assets might be impaired and the projected undiscounted cash flows estimated to be generated by those assets are less than the carrying amount of those assets. The Company reviews and adjusts as necessary its depreciation estimates and method when long-lived assets are tested for recoverability. Assets held for disposal are written down to fair value less disposition costs.

Cash and Cash Equivalents: The Company considers highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.

Deferred Rent Receivable and Revenue Recognition: The Company earns rental income under operating leases with tenants. Minimum lease rentals and lease termination payments are recognized on a straight-line basis over the

term of the leases. The cumulative difference between lease revenue recognized under this method and the contractual lease payment terms is recorded as deferred rent receivable on the consolidated balance sheet. Lease termination fees are recognized as rental income when earned upon the termination of a tenant’s lease and relinquishment of space in which the Company has no further obligation to the tenant. The present value of the difference between the fair market rent and the contractual rent for in-place leases at the time properties are acquired is amortized into revenue from rental properties over the remaining lives of the in-place leases. The Company provides reserves for a portion of the recorded deferred rent receivable if circumstances indicate that a property may be disposed of before the end of the current lease term or if it is not reasonable to assume that the tenant will not make all of its contractual lease payments when due during the current term of the lease. The straight-line method requires that rental income related to those properties for which a reserve was provided is effectively recognized in subsequent periods when payment is due under the contractual payment terms.

Environmental Remediation Costs and Recoveries from State UST Funds, Net: The estimated future costs for known environmental remediation requirements are accrued when it is probable that a liability has been incurred, including legal obligations associated with the retirement of tangible long-lived assets if the asset retirement obligation results from the normal operation of those assets and a reasonable estimate of fair value can be made. The environmental remediation liability is estimated based on the level and impact of contamination at each property. The accrued liability is the aggregate of the best estimate of the fair value of cost for each component of the liability. Recoveries of environmental costs from state UST remediation funds, with respect to both past and future environmental spending, are accrued at fair value as an offset to environmental expense, net of allowance for collection risk, based on estimated recovery rates developed from prior experience with the funds when such recoveries are considered probable. Environmental liabilities and related assets are currently measured based on their expected future cash flows which have been adjusted for inflation and discounted to present value. The Company will accrue for environmental liabilities that it believes are allocable to other potentially responsible parties if it becomes probable that the other parties will not pay their environmental obligations.

Litigation: Legal fees related to litigation are expensed as legal services are performed. The Company provides for litigation reserves, including certain litigation related to environmental matters, when it is probable that a liability has been incurred and a reasonable estimate of the liability can be made. If the best estimate of the liability can only be identified as a range, and no amount within the range is a better estimate than any other amount, the minimum of the range is accrued for the liability. The Company accrues its share of environmental liabilities based on its assumptions of the ultimate allocation method and share that will be used when determining its share of responsibility.

Income Taxes: The Company and its subsidiaries file a consolidated federal income tax return. Effective January 1, 2001, the Company elected to qualify, and believes it is operating so as to qualify, as a REIT for federal income tax purposes. Accordingly, the Company generally will not be subject to federal income tax, provided that distributions to its shareholders equal at least the amount of its REIT taxable income as defined under the Internal Revenue Code. If the Company sells any property within ten years after its REIT election that is not exchanged for a like-kind property, it will be taxed on the built-in gain realized from such sale at the highest corporate rate. This ten-year built-in gain tax period will end in 2011.

Interest Expense and Interest Rate Swap Agreement: In April 2006 the Company entered into an interest rate swap agreement with JPMorgan Chase Bank, N.A. as the counterparty, designated and qualifying as a cash flow hedge, to reduce its variable interest rate risk by effectively fixing a portion of the interest rate for existing debt and anticipated refinancing transactions. The Company has not entered into financial instruments for trading or speculative purposes. The fair value of the derivative is reflected on the consolidated balance sheet and will be reclassified as a component of interest expense over the remaining term of the interest rate swap agreement since the Company does not expect to settle the interest rate swap prior to its maturity. The fair value of the interest rate swap obligation is based upon the estimated amounts the Company would receive or pay to terminate the contract and is determined using an interest rate market pricing model. Changes in the fair value of the agreement would be recorded in the consolidated statements of operations if the agreement was not an effective cash flow hedge for accounting purposes.

Earnings per Common Share: Basic earnings per common share is computed by dividing net earnings by the weighted-average number of common shares outstanding during the year. Diluted earnings per common share also

gives effect to the potential dilution from the exercise of stock options and the issuance of common shares in settlement of restricted stock units utilizing the treasury stock method. For the year ended December 31, 2008, the assumed exercise of stock options utilizing the treasury stock method would have been anti-dilutive and therefore was not assumed for purposes of computing diluted earnings per common share.

Stock-Based Compensation: Compensation cost for the Company’s stock-based compensation plans using the fair value method was $326,000, $492,000 and $186,000 for the years ended 2008, 2007 and 2006, respectively, and is included in general and administrative expense. The impact of the accounting for stock-based compensation is, and is expected to be, immaterial to the Company’s financial position and results of operations.

New Accounting Pronouncements: In September 2006, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 157, “Fair Value Measurements” (“SFAS 157”). SFAS 157 provides guidance for using fair value to measure assets and liabilities. SFAS 157 generally applies whenever other standards require assets or liabilities to be measured at fair value. SFAS 157 is effective in fiscal years beginning after November 15, 2007. Staff Position (“FSP”) No. 152, “Effective Date of FASB Statement No. 157”, (“FSP 152”) delayed the effective date of FASB No. 157 by one year for nonfinancial assets and liabilities that are recognized or disclosed at fair value on a nonrecurring basis to fiscal years beginning after November 15, 2008. The adoption of SFAS 157 in January 2008 has not had a material impact on the Company’s financial position and results of operations. The Company does not believe that the adoption of the provisions of SFAS 157 for nonfinancial assets and liabilities that are recognized or disclosed at fair value on a nonrecurring basis will have a material impact on the Company’s financial position and results of operations.

In December 2007, the FASB issued SFAS No. 141 (revised 2007), “Business Combinations” (“SFAS 141(R)”), which establishes principles and requirements for how the acquirer shall recognize and measure in its financial statements at fair value the identifiable assets acquired, liabilities assumed, any non-controlling interest in the acquiree and goodwill acquired in a business combination. SFAS 141(R) requires that acquisition costs, which could be material to the Company’s future financial results, will be expensed rather than included as part of the basis of the acquisition. The adoption of this standard by the Company on January 1, 2009 will not result in a write-off of acquisition related transactions costs associated with transactions not yet consummated. SFAS 141(R) is effective for business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008.

2. LEASES

The Company leases or sublets its properties primarily to distributors and retailers engaged in the sale of gasoline and other motor fuel products, convenience store products and automotive repair services who are responsible for the payment of taxes, maintenance, repair, insurance and other operating expenses and for managing the actual operations conducted at these properties. In addition, approximately twenty of the Company’s properties are directly leased by the Company to others for other uses such as fast food restaurants, automobile sales and other retail purposes. The Company’s properties are primarily located in the Northeast and Mid-Atlantic regions of the United States. The Company also owns or leases properties in Texas, North Carolina, Hawaii, California, Florida, Arkansas, Illinois, North Dakota and Ohio.

As of December 31, 2008, Getty Petroleum Marketing Inc. (“Marketing”) leased from the Company, eight hundred sixty-four properties. Substantially all of the properties are leased to Marketing under a unitary master lease (the “Master Lease”) except for ten properties which are leased under supplemental leases (collectively the “Marketing Leases”). As of December 31, 2008, the Marketing Leases included eight hundred fifty-five retail motor fuel and convenience store properties and nine distribution terminals, seven hundred ten of the properties are owned by the Company and one hundred fifty-four of the properties are leased by the Company from third parties. The Master Lease has an initial term of fifteen years commencing December 9, 2000, and generally provides Marketing with options for three renewal terms of ten years each and a final renewal option of three years and ten months extending to 2049 (or such shorter initial or renewal term as the underlying lease may provide). The Marketing Leases include provisions for 2% annual rent escalations. The Master Lease is a unitary lease and, accordingly, Marketing’s exercise of renewal options must be on an “all or nothing” basis. The supplemental leases have initial terms of varying expiration dates. As permitted under the terms of the Company’s leases with Marketing, Marketing

can generally use each property for any lawful purpose, or for no purpose whatsoever. (See footnote 3 for contingencies related to Marketing and the Marketing Leases for additional information.)

The Company estimates that Marketing makes annual real estate tax payments for properties leased under the Marketing Leases of approximately $12.3 million. Marketing also makes additional payments for other operating expenses related to these properties, including environmental remediation costs other than those liabilities that were retained by the Company. These costs, which have been assumed by Marketing under the terms of the Marketing Leases, are not reflected in the consolidated financial statements.

Revenues from rental properties for the years ended December 31, 2008, 2007 and 2006 were $81,163,000, $78,069,000 and $71,329,000, respectively, of which $60,440,000, $59,669,000 and $59,482,000, respectively, were received from Marketing under the Marketing Leases. In addition, revenues from rental properties for the years ended December 31, 2008, 2007 and 2006 include $2,537,000, 3,605,000 and $2,982,000, respectively, of deferred rental revenue accrued due to recognition of rental revenue on a straight-line basis and amortization of above-market and below-market leases. In the fourth quarter and year ended December 31, 2007, the Company provided a non-cash $10.5 million reserve for a portion of the deferred rent receivable recorded as of December 31, 2007 related to the Marketing Leases. (See footnote 3 for additional information related to the Marketing Leases and the reserve.)

Future contractual minimum annual rentals receivable from Marketing under the Marketing Leases and from other tenants, which have terms in excess of one year as of December 31, 2008, are as follows (in thousands. See footnote 3 for additional information related to the Marketing Leases and the reserve):


YEAR ENDING DECEMBER 31,	MARKETING		OTHER TENANTS		TOTAL (a)

2009		60,003		18,938		78,941
2010		59,968		18,722		78,690
2011		60,086		18,769		78,855
2012		60,402		18,588		78,990
2013		60,508		18,006		78,514
Thereafter		118,946		121,683		240,629

(a) Includes $78,441,000 of future minimum annual rentals receivable under subleases.

Rent expense, substantially all of which consists of minimum rentals on non-cancelable operating leases, amounted to $8,100,000, $8,337,000 and $8,685,000 for the years ended December 31, 2008, 2007 and 2006, respectively, and is included in rental property expenses using the straight-line method. Rent received under subleases for the years ended December 31, 2008, 2007 and 2006 was $13,986,000, $14,145,000 and $14,646,000, respectively.

The Company has obligations to lessors under non-cancelable operating leases which have terms (excluding renewal term options) in excess of one year, principally for gasoline stations and convenience stores. Substantially all of these leases contain renewal options and rent escalation clauses. The leased properties have a remaining lease term averaging over ten years, including renewal options. Future minimum annual rentals payable under such leases, excluding renewal options, are as follows: 2009 — $7,338,000, 2010 — $5,971,000, 2011 — $4,600,000, 2012 — $3,197,000, 2013 — $2,038,000 and $3,476,000 thereafter.

3. COMMITMENTS AND CONTINGENCIES

In order to minimize the Company’s exposure to credit risk associated with financial instruments, the Company places its temporary cash investments with high credit quality institutions. Temporary cash investments, if any, are held in an overnight bank time deposit with JPMorgan Chase Bank, N.A.

As of December 31, the Company leased eight hundred sixty-four of its one thousand sixty properties on a long-term triple-net basis to Marketing under the Marketing Leases (see footnote 2 for additional information). A substantial portion of the Company’s revenues (75% for the year ended December 31, 2008), are derived from the Marketing Leases. Accordingly, the Company’s revenues are dependent to a large degree on the economic performance of Marketing and of the petroleum marketing industry, and any factor that adversely affects Marketing,

or the Company’s relationship with Marketing, may have a material adverse effect on the Company’s business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends and/or stock price. Marketing operated substantially all of the Company’s petroleum marketing businesses when it was spun-off to the Company’s shareholders as a separate publicly held company in March 1997 (the “Spin-Off”). In December 2000, Marketing was acquired by a subsidiary of OAO LUKoil (“Lukoil”), one of the largest integrated Russian oil companies. Even though Marketing is a wholly-owned subsidiary of Lukoil and Lukoil has in prior periods provided credit enhancement and capital to Marketing, Lukoil is not a guarantor of the Marketing Leases and there can be no assurance that Lukoil is currently providing, or will provide, any credit enhancement or additional capital to Marketing. The Company’s financial results depend largely on rental income from Marketing, and to a lesser extent on rental income from other tenants and; therefore, are materially dependent upon the ability of Marketing to meet its rental, environmental and other obligations under the Marketing Leases. Marketing’s financial results depend largely on retail petroleum marketing margins and rental income from its sub-tenants who operate their respective convenience stores, automotive repair services or other businesses at the Company’s properties. The petroleum marketing industry has been and continues to be volatile and highly competitive. Marketing has made all required monthly rental payments under the Marketing Leases when due through March 2009, although there is no assurance that it will continue to do so.

The Company has had periodic discussions with representatives of Marketing regarding potential modifications to the Marketing Leases and, in 2007, during the course of such discussions, Marketing proposed to (i) remove approximately 40% of the properties (the “Subject Properties”) from the Marketing Leases and eliminate payment of rent to the Company, and eliminate or reduce payment of operating expenses, with respect to the Subject Properties, and (ii) reduce the aggregate amount of rent payable to the Company for the approximately 60% of the properties that would remain under the Marketing Leases (the “Remaining Properties”). Representatives of Marketing have also indicated to the Company that they are considering significant changes to Marketing’s business model. In light of these developments and the continued deterioration in Marketing’s annual financial performance, in March 2008, the Company had decided to attempt to negotiate with Marketing for a modification of the Marketing Leases which removes the Subject Properties from the Marketing Leases. The Company has held periodic discussions with Marketing since March 2008 in its attempt to negotiate a modification of the Marketing Leases to remove the Subject Properties. Although the Company continues to remove individual locations from the Master Lease as mutually beneficial opportunities arise, there has been no agreement between the Company and Marketing on any principal terms that would be the basis for a definitive Master Lease modification agreement. If Marketing ultimately determines that its business strategy is to exit all of the properties it leases from the Company or to divest a composition of properties different from the properties comprising the Subject Properties, such as the revised list of properties provided to the Company by Marketing in the second quarter of 2008 which includes approximately 45% of the properties Marketing leases from the Company (the “Revised Subject Properties”), it is the Company’s intention to cooperate with Marketing in accomplishing those objectives if the Company determines that it is prudent for it to do so. Any modification of the Marketing Leases that removes a significant number of properties from the Marketing Leases would likely significantly reduce the amount of rent the Company receives from Marketing and increase the Company’s operating expenses. The Company cannot accurately predict if, or when, the Marketing Leases will be modified or what the terms of any agreement may be if the Marketing Leases are modified. The Company also cannot accurately predict what actions Marketing and Lukoil may take, and what the Company’s recourse may be, whether the Marketing Leases are modified or not.

The Company intends either to re-let or sell any properties removed from the Marketing Leases and reinvest the realized sales proceeds in new properties. The Company intends to seek replacement tenants or buyers for properties removed from the Marketing Leases either individually, in groups of properties, or by seeking a single tenant for the entire portfolio of properties subject to the Marketing Leases. Although the Company is the fee or leasehold owner of the properties subject to the Marketing Leases and the owner of the Getty® brand and has prior experience with tenants who operate their convenience stores, automotive repair services or other businesses at its properties; in the event that properties are removed from the Marketing Leases, the Company cannot accurately predict if, when, or on what terms, such properties could be re-let or sold.

Due to the previously disclosed deterioration in Marketing’s annual financial performance, in conjunction with the Company’s decision to attempt to negotiate with Marketing for a modification of the Marketing Leases to remove the Subject Properties, the Company has decided that it cannot reasonably assume that it will collect all of the rent due to the Company related to the Subject Properties for the remainder of the current lease terms. In

reaching this conclusion, the Company relied on various indicators, including, but not limited to, the following financial results of Marketing through the year ended December 31, 2007: (i) Marketing’s significant operating losses, (ii) its negative cash flow from operating activities, (iii) its asset impairment charges for underperforming assets, and (iv) its negative earnings before interest, taxes, depreciation, amortization and rent payable to the Company. The Company has not received Marketing’s financial results for the year ended December 31, 2008 prior to the preparation of this Annual Report on Form 10-K.

The Company recorded a reserve of $10,494,000 in 2007 representing the full amount of the deferred rent receivable recorded related to the Subject Properties as of December 31, 2007. Providing the non-cash deferred rent receivable reserve reduced the Company’s net earnings but did not impact the Company’s cash flow from operating activities for 2007. As of December 31, 2008, the Company had a reserve of $10,029,000 for the deferred rent receivable due from Marketing representing the full amount of the deferred rent receivable recorded related to the Subject Properties as of that date. The Company has not provided a deferred rent receivable reserve related to the Remaining Properties since, based on the Company’s assessments and assumptions, the Company continues to believe that it is probable that it will collect the deferred rent receivable related to the Remaining Properties of $22,900,000 as of December 31, 2008 and that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases. The Company anticipates that the rental revenue for the Remaining Properties will continue to be recognized on a straight-line basis. As required by the straight-line method of accounting, beginning with the first quarter of 2008, the rental revenue for the Subject Properties was, and for future periods is expected to be, effectively recognized when payment is due under the contractual payment terms. Although the Company has adjusted the estimated useful lives of certain long-lived assets for the Subject Properties, the Company believes that no impairment charge was necessary for the Subject Properties as of December 31, 2008 or December 31, 2007 pursuant to the provisions of Statement of Financial Accounting Standards No. 144. The impact to depreciation expense due to adjusting the estimated lives for certain long-lived assets beginning with the year ended December 31, 2008 was not material.

Marketing is directly responsible to pay for (i) remediation of environmental contamination it causes and compliance with various environmental laws and regulations as the operator of the Company’s properties, and (ii) known and unknown environmental liabilities allocated to Marketing under the terms of the Master Lease and various other agreements between Marketing and the Company relating to Marketing’s business and the properties subject to the Marketing Leases (collectively the “Marketing Environmental Liabilities”). The Company may ultimately be responsible to directly pay for Marketing Environmental Liabilities as the property owner if Marketing fails to pay them. Additionally, the Company will be required to accrue for Marketing Environmental Liabilities if the Company determines that it is probable that Marketing will not meet its obligations or if the Company’s assumptions regarding the ultimate allocation methods and share of responsibility that it used to allocate environmental liabilities changes as a result of the factors discussed above, or otherwise. However, the Company continues to believe that it is not probable that Marketing will not pay for substantially all of the Marketing Environmental Liabilities since the Company believes that Lukoil will not allow Marketing to fail to perform its rental, environmental and other obligations under the Marketing Leases and, accordingly, the Company did not accrue for the Marketing Environmental Liabilities as of December 31, 2008 or 2007. Nonetheless, the Company has determined that the aggregate amount of the Marketing Environmental Liabilities (as estimated by the Company based on its assumptions and analysis of information currently available to it) could be material to the Company if it was required to accrue for all of the Marketing Environmental Liabilities in the future since the Company believes that it is reasonably possible that as a result of such accrual, the Company may not be in compliance with the existing financial covenants in its Credit Agreement. Such non-compliance could result in an event of default which, if not cured or waived, could result in the acceleration of all of the Company’s indebtedness under the Credit Agreement.

Should the Company’s assessments, assumptions and beliefs prove to be incorrect, or if circumstances change, the conclusions reached by the Company may change relating to (i) whether some or all of the Subject or Remaining Properties are likely to be removed from the Marketing Leases (ii) recoverability of the deferred rent receivable for some or all of the Subject or Remaining Properties, (iii) potential impairment of the Subject or Remaining Properties and, (iv) Marketing’s ability to pay the Marketing Environmental Liabilities. The Company intends to regularly review its assumptions that affect the accounting for deferred rent receivable; long-lived assets; environmental litigation accruals; environmental remediation liabilities; and related recoveries from state underground storage tank funds, which may result in material adjustments to the amounts recorded for these assets and liabilities, and as a

result of which, the Company may not be in compliance with the financial covenants in its Credit Agreement. Accordingly, the Company may be required to (i) reserve additional amounts of the deferred rent receivable related to the Remaining Properties, (ii) record an impairment charge related to the Subject or Remaining Properties, or (iii) accrue for Marketing Environmental Liabilities that the Company believes are allocable to Marketing under the Marketing Leases and various other agreements as a result of the potential or actual modification of the Marketing Leases or other factors.

The Company cannot provide any assurance that Marketing will continue to pay its debts or meet its rental, environmental or other obligations under the Marketing Leases prior or subsequent to any potential modification of the Marketing Leases. In the event that Marketing cannot or will not perform its rental, environmental or other obligations under the Marketing Leases; if the Marketing Leases are modified significantly or terminated; if the Company determines that it is probable that Marketing will not meet its environmental obligations and the Company accrues for such liabilities; if the Company is unable to promptly re-let or sell the properties subject to the Marketing Leases; or, if the Company changes its assumptions that affect the accounting for rental revenue or Marketing Environmental Liabilities related to the Marketing Leases and various other agreements; the Company’s business, financial condition, revenues, operating expenses, results of operations, liquidity, ability to pay dividends and/or stock price may be materially adversely affected.

The Company has also agreed to provide limited environmental indemnification to Marketing, capped at $4,250,000 and expiring in 2010, for certain pre-existing conditions at six of the terminals which are owned by the Company and leased to Marketing. Under the agreement, Marketing is obligated to pay the first $1,500,000 of costs and expenses incurred in connection with remediating any such pre-existing conditions, Marketing and the Company will share equally the next $8,500,000 of those costs and expenses and Marketing is obligated to pay all additional costs and expenses over $10,000,000. The Company has accrued $300,000 as of December 31, 2008 and 2007 in connection with this indemnification agreement.

The Company is subject to various legal proceedings and claims which arise in the ordinary course of its business. In addition, the Company has retained responsibility for certain legal proceedings and claims relating to the petroleum marketing business that were identified at the time of the Spin-Off. As of December 31, 2008 and 2007, the Company had accrued $1,671,000 and $2,575,000, respectively, for certain of these matters which it believes were appropriate based on information then currently available. The Company has not accrued for approximately $950,000 in costs allegedly incurred by the current property owner in connection with removal of underground storage tanks (“USTs” or “UST”) and soil remediation at a property that had been leased to and operated by Marketing. The Company believes Marketing is responsible for such costs under the terms of the Master Lease and tendered the matter for defense and indemnification from Marketing, but Marketing has denied its liability for the claim and its responsibility to defend against and indemnify the Company for the claim. The Company has filed a third party claim against Marketing for indemnification in this matter, which claim is currently being actively litigated. Trial is anticipated to be scheduled for the first quarter of 2009. It is possible that the Company’s assumption that Marketing will be ultimately responsible for this claim may change, which may result in the Company providing an accrual for this and other matters.

In September 2003, the Company was notified by the State of New Jersey Department of Environmental Protection (“NJDEP”) that the Company is one of approximately sixty-six potentially responsible parties for natural resource damages resulting from discharges of hazardous substances into the Lower Passaic River. The definitive list of potentially responsible parties and their actual responsibility for the alleged damages, the aggregate cost to remediate the Lower Passaic River, the amount of natural resource damages and the method of allocating such amounts among the potentially responsible parties have not been determined. In September 2004, the Company received a General Notice Letter from the United States Environmental Protection Agency (the “EPA”) (the “EPA Notice”), advising the Company that it may be a potentially responsible party for costs of remediating certain conditions resulting from discharges of hazardous substances into the Lower Passaic River. ChevronTexaco received the same EPA Notice regarding those same conditions. In a related action, in December 2005, the State of New Jersey brought suit against certain companies which the State alleges are responsible for pollution of the Passaic River from a former Diamond Alkali manufacturing plant. In February 2009, certain of these defendants filed third-party complaints against approximately 300 additional parties, including the Company, seeking contribution for a pro-rata share of response costs, cleanup and removal costs, and other damages. The Company believes that ChevronTexaco is contractually obligated to indemnify the Company, pursuant to an indemnification

agreement, for most if not all of the conditions at the property identified by the NJDEP and the EPA. Accordingly, the ultimate legal and financial liability of the Company, if any, cannot be estimated with any certainty at this time.

From October 2003 through December 31, 2008, the Company was notified that the Company was made party to fifty-four cases in Connecticut, Florida, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Vermont, Virginia and West Virginia brought by local water providers or governmental agencies. These cases allege various theories of liability due to contamination of groundwater with methyl tertiary butyl ether (“MTBE”) as the basis for claims seeking compensatory and punitive damages. Each case names as defendants approximately fifty petroleum refiners, manufacturers, distributors and retailers of MTBE, or gasoline containing MTBE. At this time, the Company has been dismissed from certain of the cases initially filed against it. A significant number of the named defendants other than the Company have entered into settlements with certain plaintiffs, which affected approximately twenty-seven of the cases to which the Company is a party. The accuracy of the allegations as they relate to the Company, the Company’s defenses to such claims, the aggregate amount of possible damages and the method of allocating such amounts among the remaining defendants have not been determined. Accordingly, the ultimate legal and financial liability of the Company, if any, cannot be estimated with any certainty at this time. The ultimate resolution of these matters could cause a material adverse effect on the Company’s business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

Prior to the Spin-Off, the Company was self-insured for workers’ compensation, general liability and vehicle liability up to predetermined amounts above which third-party insurance applies. As of December 31, 2008 and 2007, the Company’s consolidated balance sheets included, in accounts payable and accrued expenses, $290,000 and $310,000, respectively, relating to self-insurance obligations. The Company estimates its loss reserves for claims, including claims incurred but not reported, by utilizing actuarial valuations provided annually by its insurance carriers. The Company is required to deposit funds for substantially all of these loss reserves with its insurance carriers, and may be entitled to refunds of amounts previously funded, as the claims are evaluated on an annual basis. The Company’s consolidated statements of operations for the years ended December 31, 2008, 2007 and 2006 include, in general and administrative expenses, charges (credits) of $(72,000), $81,000 and ($301,000), respectively, for self-insurance loss reserve adjustments. Since the Spin-Off, the Company has maintained insurance coverage subject to certain deductibles.

In order to qualify as a REIT, among other items, the Company must pay out substantially all of its “earnings and profits” (as defined in the Internal Revenue Code) in cash distributions to shareholders each year. Should the Internal Revenue Service successfully assert that the Company’s earnings and profits were greater than the amounts distributed, the Company may fail to qualify as a REIT; however, the Company may avoid losing its REIT status by paying a deficiency dividend to eliminate any remaining earnings and profits. The Company may have to borrow money or sell assets to pay such a deficiency dividend.

4. CREDIT AGREEMENT

As of December 31, 2008, borrowings under the Credit Agreement, described below, were $130,250,000, bearing interest at a weighted-average effective rate of 3.8% per annum. The weighted-average effective rate is based on $85,250,000 of LIBOR rate borrowings floating at market rates plus a margin of 1.0% and $45,000,000 of LIBOR rate borrowings effectively fixed at 5.44% by an interest rate Swap Agreement, described below, plus a margin of 1.0%. The Company has a $175,000,000 amended and restated senior unsecured revolving credit agreement (the “Credit Agreement”) with a group of domestic commercial banks led by JPMorgan Chase Bank, N.A. (the “Bank Syndicate”) which expires in March 2011. The Credit Agreement does not provide for scheduled reductions in the principal balance prior to its maturity. The Credit Agreement permits borrowings at an interest rate equal to the sum of a base rate plus a margin of 0.0% or 0.25% or a LIBOR rate plus a margin of 1.0%, 1.25% or 1.5%. The applicable margin is based on the Company’s leverage ratio at the end of the prior calendar quarter, as defined in the Credit Agreement, and is adjusted effective mid-quarter when the Company’s quarterly financial results are reported to the Bank Syndicate. Based on the Company’s leverage ratio as of December 31, 2008, the applicable margin is 0.0% for base rate borrowings and will increase to 1.25% in the first quarter of 2009 for LIBOR rate borrowings.

Subject to the terms of the Credit Agreement, the Company has the option to extend the term of the credit agreement for one additional year to March 2012 and/or, subject to approval by the Bank Syndicate, increase the amount of the credit facility available pursuant to the Credit Agreement by $125,000,000 to $300,000,000. The Company does not expect to exercise its option to increase the amount of the Credit Agreement at this time. In addition, based on the current lack of liquidity in the credit markets, the Company believes that it would need to renegotiate certain terms in the Credit Agreement in order to obtain approval from the Bank Syndicate to increase the amount of the credit facility at this time. No assurance can be given that such approval from the Bank Syndicate will be obtained on terms acceptable to the Company, if at all. The annual commitment fee on the unused Credit Agreement ranges from 0.10% to 0.20% based on the amount of borrowings. The Credit Agreement contains customary terms and conditions, including customary financial covenants such as leverage and coverage ratios and other customary covenants, including limitations on the Company’s ability to incur debt, pay dividends and maintenance of tangible net worth, and events of default, including change of control and failure to maintain REIT status. A material adverse effect on the Company’s business, assets, prospects or condition, financial or otherwise, would also result in an event of default. Any event of default, if not cured or waived, could result in the acceleration of all of the Company’s indebtedness under the Credit Agreement.

The Company entered into a $45,000,000 LIBOR based interest rate swap agreement with JPMorgan Chase Bank, N.A. as the counterparty, effective through June 30, 2011 (the “Swap Agreement”). The Swap Agreement is intended to effectively fix, at 5.44%, the LIBOR component of the interest rate determined under the Credit Agreement. As a result of the Swap Agreement, as of December 31, 2008, $45,000,000 of the Company’s LIBOR based borrowings under the Credit Agreement bear interest at an effective rate of 6.44%.

The Company entered into the Swap Agreement with JPMorgan Chase Bank, N.A., designated and qualifying as a cash flow hedge, to reduce its exposure to the variability in future cash flows attributable to changes in the LIBOR rate. The Company’s primary objective when undertaking the hedging transaction and derivative position was to reduce its variable interest rate risk by effectively fixing a portion of the interest rate for existing debt and anticipated refinancing transactions. The Company determined, as of the Swap Agreement’s inception and as of December 31, 2008 and 2007, that the derivative used in the hedging transaction is highly effective in offsetting changes in cash flows associated with the hedged item and that no gain or loss was required to be recognized in earnings during 2008 or 2007 representing the hedge’s ineffectiveness. At December 31, 2008 and, 2007, the Company’s consolidated balance sheets include, in accounts payable and accrued expenses, an obligation for the fair value of the Swap Agreement of $4,296,000 and $2,299,000, respectively. For the years ended December 31, 2008, 2007 and 2006, the Company has recorded a loss in the fair value of the Swap Agreement related to the effective portion of the interest rate contract totaling $1,997,000, $1,478,000 and $821,000, respectively, in accumulated other comprehensive loss in the Company’s consolidated balance sheet. The accumulated comprehensive loss will be recognized as an increase in interest expense as quarterly payments are made to the counter-party over the remaining term of the Swap Agreement (of which approximately $1,862,000 is expected to be reclassified within the next twelve months) since it is expected that the Credit Agreement will be refinanced with variable interest rate debt at its maturity.

The fair value of the Swap Agreement is $4,296,000 as of December 31, 2008 determined using (i) a discounted cash flow analysis on the expected cash flows of the Swap Agreement, which is based on market data obtained from sources independent of the Company consisting of interest rates and yield curves that are observable at commonly quoted intervals and are defined by GAAP as “Level 2” inputs in the “Fair Value Hierarchy”, and (ii) credit valuation adjustments, which are based on unobservable “Level 3” inputs. The fair value of the $133,577,000 projected borrowings outstanding under the Credit Agreement is $122,751,000 as of December 31, 2008 determined using a discounted cash flow technique that incorporates a market interest yield curve, “Level 2 inputs”, with adjustments for duration, optionality, risk profile and projected average borrowings outstanding, which are based on unobservable “Level 3 inputs”. As of December 31, 2008, accordingly, the Company classified its valuation of the Swap Agreement in its entirety within Level 2 of the Fair Value Hierarchy since the credit valuation adjustments are not significant to the overall valuation of the Swap Agreement and its valuation of the borrowings outstanding under the Credit Agreement in its entirety within Level 3 of the Fair Value Hierarchy.

5. ENVIRONMENTAL EXPENSES

The Company is subject to numerous existing federal, state and local laws and regulations, including matters relating to the protection of the environment such as the remediation of known contamination and the retirement and decommissioning or removal of long-lived assets including buildings containing hazardous materials, USTs and other equipment. Environmental expenses are principally attributable to remediation costs which include installing, operating, maintaining and decommissioning remediation systems, monitoring contamination, and governmental agency reporting incurred in connection with contaminated properties. The Company seeks reimbursement from state UST remediation funds related to these environmental expenses where available.

The Company enters into leases and various other agreements which allocate responsibility for known and unknown environmental liabilities by establishing the percentage and method of allocating responsibility between the parties. In accordance with the leases with certain tenants, the Company has agreed to bring the leased properties with known environmental contamination to within applicable standards and to regulatory or contractual closure (“Closure”) in an efficient and economical manner. Generally, upon achieving Closure at each individual property, the Company’s environmental liability under the lease for that property will be satisfied and future remediation obligations will be the responsibility of the Company’s tenant. Generally the liability for the retirement and decommissioning or removal of USTs and other equipment is the responsibility of the Company’s tenants. The Company is contingently liable for these obligations in the event that the tenants do not satisfy their responsibilities. A liability has not been accrued for obligations that are the responsibility of the Company’s tenants based on the tenants’ history of paying such obligations and/or the Company’s assessment of their financial ability to pay their share of such costs. However, there can be no assurance that the Company’s assessments are correct or that the Company’s tenants who have paid their obligations in the past will continue to do so.

Of the eight hundred sixty-four properties leased to Marketing as of December 31, 2008, the Company has agreed to pay all costs relating to, and to indemnify Marketing for, certain environmental liabilities and obligations at one hundred eighty-seven retail properties that have not achieved Closure and are scheduled in the Master Lease. The Company will continue to seek reimbursement from state UST remediation funds related to these environmental expenditures where available.

It is possible that the Company’s assumptions regarding the ultimate allocation method and share of responsibility that it used to allocate environmental liabilities may change, which may result in material adjustments to the amounts recorded for environmental litigation accruals, environmental remediation liabilities and related assets. The Company will be required to accrue for environmental liabilities that the Company believes are allocable to others under various other agreements if the Company determines that it is probable that the counter-party will not meet its environmental obligations. The ultimate resolution of these matters could cause a material adverse effect on the Company’s business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price. (See footnote 3 for contingencies related to Marketing and the Marketing Leases for additional information.)

The estimated future costs for known environmental remediation requirements are accrued when it is probable that a liability has been incurred and a reasonable estimate of fair value can be made. The environmental remediation liability is estimated based on the level and impact of contamination at each property. The accrued liability is the aggregate of the best estimate of the fair value of cost for each component of the liability. Recoveries of environmental costs from state UST remediation funds, with respect to both past and future environmental spending, are accrued at fair value as an offset to environmental expense, net of allowance for collection risk, based on estimated recovery rates developed from prior experience with the funds when such recoveries are considered probable.

Environmental exposures are difficult to assess and estimate for numerous reasons, including the extent of contamination, alternative treatment methods that may be applied, location of the property which subjects it to differing local laws and regulations and their interpretations, as well as the time it takes to remediate contamination. In developing the Company’s liability for probable and reasonably estimable environmental remediation costs, on a property by property basis, the Company considers among other things, enacted laws and regulations, assessments of contamination and surrounding geology, quality of information available, currently available technologies for treatment, alternative methods of remediation and prior experience. These accrual estimates are subject to significant change, and are adjusted as the remediation treatment progresses, as circumstances change and as these

contingencies become more clearly defined and reasonably estimable. As of December 31, 2008, the Company had regulatory approval for remediation action plans in place for two hundred forty-nine (95%) of the two hundred sixty-two properties for which it continues to retain environmental responsibility and the remaining thirteen properties (5%) remain in the assessment phase. In addition, the Company has nominal post-closure compliance obligations at twenty-four properties where it has received “no further action” letters.

Environmental remediation liabilities and related assets are measured at fair value based on their expected future cash flows which have been adjusted for inflation and discounted to present value. The net change in estimated remediation cost and accretion expense included in environmental expenses in the Company’s consolidated statements of operations aggregated $4,656,000, $5,136,000 and $3,202,000 for 2008, 2007 and 2006, respectively, which amounts were net of changes in estimated recoveries from state UST remediation funds. In addition to net change in estimated remediation costs, environmental expenses also include project management fees, legal fees and provisions for environmental litigation loss reserves.

As of December 31, 2008, 2007, 2006 and 2005, the Company had accrued $17,660,000, $18,523,000, $17,201,000 and $17,350,000 respectively, as management’s best estimate of the fair value of reasonably estimable environmental remediation costs. As of December 31, 2008, 2007, 2006 and 2005, the Company had also recorded $4,223,000, $4,652,000, $3,845,000 and $4,264,000, respectively, as management’s best estimate for recoveries from state UST remediation funds, net of allowance, related to environmental obligations and liabilities. The net environmental liabilities of $13,871,000, $13,356,000 and $13,086,000 as of December 31, 2007, 2006 and 2005, respectively, were subsequently accreted for the change in present value due to the passage of time and, accordingly, $956,000, $974,000 and $923,000 of net accretion expense was recorded for the years ended December 31, 2008, 2007 and 2006, respectively, substantially all of which is included in environmental expenses.

In view of the uncertainties associated with environmental expenditures, contingencies related to Marketing and the Marketing Leases and contingencies related to other parties, however, the Company believes it is possible that the fair value of future actual net expenditures could be substantially higher than amounts currently recorded by the Company. (See footnote 3 for contingencies related to Marketing and the Marketing Leases for additional information.) Adjustments to accrued liabilities for environmental remediation costs will be reflected in the Company’s financial statements as they become probable and a reasonable estimate of fair value can be made. Future environmental expenses could cause a material adverse effect on our business, financial condition, results of operations, liquidity, ability to pay dividends and/or stock price.

6. INCOME TAXES

Net cash paid for income taxes for the years ended December 31, 2008, 2007 and 2006 of $708,000, $488,000 and $576,000, respectively, includes amounts related to state and local income taxes for jurisdictions that do not follow the federal tax rules, which are provided for in rental property expenses in the Company’s consolidated statements of operations.

Earnings and profits (as defined in the Internal Revenue Code) is used to determine the tax attributes of dividends paid to stockholders and will differ from income reported for financial statement purposes due to the effect of items which are reported for income tax purposes in years different from that in which they are recorded for financial statement purposes. Earnings and profits were $40,906,000, $41,147,000 and $39,486,000 for the years ended December 31, 2008, 2007 and 2006, respectively. The federal tax attributes of the common dividends for the years ended December 31, 2008, 2007 and 2006 were: ordinary income of 87.4%, 90.3% and 88.0%; capital gain distributions of 1.2%, 0.0% and 0.02% and non-taxable distributions of 11.4%, 9.7% and 11.8%, respectively.

In order to qualify as a REIT, among other items, the Company must pay out substantially all of its earnings and profits in cash distributions to shareholders each year. Should the Internal Revenue Service successfully assert that the Company’s earnings and profits were greater than the amount distributed, the Company may fail to qualify as a REIT; however, the Company may avoid losing its REIT status by paying a deficiency dividend to eliminate any remaining earnings and profits. The Company may have to borrow money or sell assets to pay such a deficiency dividend. The Company accrues for this and certain other tax matters when appropriate based on information

currently available. The accrual for uncertain tax positions is adjusted as circumstances change and as the uncertainties become more clearly defined, such as when audits are settled or exposures expire. Accordingly, an income tax benefit of $700,000 was recorded in the third quarter of 2006, due to the elimination of the amount accrued for uncertain tax positions since the Company believes that the uncertainties regarding these exposures have been resolved or that it is no longer likely that the exposure will result in a liability upon review. However, the ultimate resolution of these matters may have a significant impact on the results of operations for any single fiscal year or interim period.

7. SHAREHOLDERS’ EQUITY

A summary of the changes in shareholders’ equity for the years ended December 31, 2008, 2007 and 2006 is as follows (in thousands, except per share amounts):


	COMMON STOCK				PAID-IN CAPITAL			DIVIDENDS PAID IN EXCESS OF EARNINGS			ACCUMULATED OTHER COMPREHENSIVE LOSS

	SHARES		AMOUNT										TOTAL

BALANCE, DECEMBER 31, 2005		24,717	$	247	$	257,766	$	(30,130	)	$	—		$	227,883

Net earnings								42,725						42,725
Dividends — $1.82 per common share								(45,094	)					(45,094	)
Stock-based compensation						186								186
Net unrealized loss on interest rate swap											(821	)		(821	)
Stock options exercised		48		1		695								696

BALANCE, DECEMBER 31, 2006		24,765		248		258,647		(32,499	)		(821	)		225,575

Net earnings								33,894						33,894
Dividends — $1.85 per common share								(45,900	)					(45,900	)
Stock-based compensation						87								87
Net unrealized loss on interest rate swap											(1,478	)		(1,478	)

BALANCE, DECEMBER 31, 2007		24,765		248		258,734		(44,505	)		(2,299	)		212,178

Net earnings								41,810						41,810
Dividends — $1.87 per common share								(46,429	)					(46,429	)
Stock-based compensation		1				326								326
Stock options exercised						9								9
Net unrealized loss on interest rate swap											(1,997	)		(1,997	)

BALANCE, DECEMBER 31, 2008		24,766	$	248	$	259,069	$	(49,124	) (a)	$	(4,296	)	$	205,897


(a)	Net of $103,803 transferred from retained earnings to common stock and paid-in capital as a result of accumulated stock dividends.

The Company is authorized to issue 20,000,000 shares of preferred stock, par value $.01 per share, for issuance in series, of which none were issued as of December 31, 2008, 2007, 2006 and 2005.

8. SEVERANCE AGREEMENT AND EMPLOYEE BENEFIT PLANS

General and administrative expenses include a provision of $447,000 recorded in the quarter ended December 31, 2007 primarily due to the payment of severance and the accelerated vesting of 14,250 restricted stock units which were unvested and scheduled to vest five years from the date of each grant in conjunction with the resignation of Mr. Andy Smith, the former President and Chief Legal Officer of the Company.

The Company has a retirement and profit sharing plan with deferred 401(k) savings plan provisions (the “Retirement Plan”) for employees meeting certain service requirements and a supplemental plan for executives (the “Supplemental Plan”). Under the terms of these plans, the annual discretionary contributions to the plans are determined by the Compensation Committee of the Board of Directors. Also, under the Retirement Plan, employees

may make voluntary contributions and the Company has elected to match an amount equal to fifty percent of such contributions but in no event more than three percent of the employee’s eligible compensation. Under the Supplemental Plan, a participating executive may receive an amount equal to ten percent of eligible compensation, reduced by the amount of any contributions allocated to such executive under the Retirement Plan. Contributions, net of forfeitures, under the retirement plans approximated $151,000, $100,000 and $139,000 for the years ended December 31, 2008, 2007 and 2006, respectively. These amounts are included in the accompanying consolidated statements of operations.

The Getty Realty Corp. 2004 Omnibus Incentive Compensation Plan (the “2004 Plan”) provides for the grant of restricted stock, restricted stock units, performance awards, dividend equivalents, stock payments and stock awards to all employees and members of the Board of Directors. The 2004 Plan authorizes the Company to grant awards with respect to an aggregate of 1,000,000 shares of common stock through 2014. The aggregate maximum number of shares of common stock that may be subject to awards granted under the 2004 Plan during any calendar year is 80,000.

The Company awarded to employees and directors 23,800, 17,550 and 12,550 restricted stock units (“RSUs”) and dividend equivalents in 2008, 2007 and 2006, respectively. The RSUs are settled subsequent to the termination of employment with the Company. On the settlement date each RSU will have a value equal to one share of common stock and may be settled, at the sole discretion of the Compensation Committee, in cash or by the issuance of one share of common stock. In 2008, the Company settled 1,000 RSUs by issuing 400 shares of common stock with an intrinsic value of $7,000 net of employee tax withholdings and cancelling 600 RSUs that were not vested. In 2007, the Compensation Committee elected to settle 14,250 RSUs in cash for $405,000. The RSUs do not provide voting or other shareholder rights unless and until the RSU is settled for a share of common stock. The 62,000 RSUs outstanding as of December 31, 2008 vest starting one year from the date of grant, on a cumulative basis at the annual rate of twenty percent of the total number of RSUs covered by the award. The dividend equivalents represent the value of the dividends paid per common share multiplied by the number of RSUs covered by the award.

The fair values of the RSUs were determined based on the closing market price of the Company’s stock on the date of grant. The average fair values of the RSUs granted in 2008, 2007, and 2006 were estimated at $26.86, $28.78, and $28.80 per unit on the date of grant with an aggregate fair value estimated at $639,000, $505,000 and $361,000, respectively. The fair value of the grants is recognized as compensation expense ratably over the five year vesting period of the RSUs. As of December 31, 2008, there was $971,000 of total unrecognized compensation cost related to RSUs granted under the 2004 Plan.

The fair value of the 7,840, 19,330 and 3,320 RSUs which vested during the years ended December 31, 2008, 2007 and 2006 was $213,000, $523,000 and $88,000, respectively. The aggregate intrinsic value of the 62,000 outstanding RSUs and the 17,400 vested RSUs as of December 31, 2008 was $1,306,000 and $366,000, respectively. For the years ended December 31, 2008, 2007 and 2006, dividend equivalents aggregating approximately $88,000, $85,000 and $65,000, respectively, were charged against retained earnings when common stock dividends were declared.

The Company has a stock option plan (the “Stock Option Plan”). The Company’s authorization to grant options to purchase shares of the Company’s common stock under the Stock Option Plan expired in January 2008. No options were granted in 2008. Stock options vest starting one year from the date of grant, on a cumulative basis at the annual rate of twenty-five percent of the total number of options covered by the award. As of December 31, 2008, there was $10,000 of unrecognized compensation cost related to non-vested options granted in May 2007 under the Stock Option Plan with an estimated fair value of $18,000, or $3.51 per option. The total fair value of the options vested during the years ended December 31, 2008 and 2006 was $4,000 and $8,000, respectively. As of December 31, 2008, there were 1,750, 10,500 and 5,000 options outstanding which were exercisable at prices of $16.15, $18.30 and $27.68 with a remaining contractual life of three, four and nine years, respectively.

The following is a schedule of stock option prices and activity relating to the Stock Option Plan:


	YEAR ENDED DECEMBER 31,

	2008								2007			2006

		NUMBER OF SHARES			WEIGHTED- AVERAGE EXERCISE PRICE	WEIGHTED- AVERAGE REMAINING CONTRACTUAL TERM		AGGREGATE INTRINSIC VALUE (IN THOUSANDS)	NUMBER OF SHARES		WEIGHTED- AVERAGE EXERCISE PRICE	NUMBER OF SHARES			WEIGHTED- AVERAGE EXERCISE PRICE

Outstanding at beginning of year		17,750		$	20.73				12,750	$	18.00	84,378		$	19.48
Issued		—			—				5,000		27.68	—			—
Exercised (a)		(500	)		18.30				—		—	(71,628	)		19.74
Cancelled		—			—				—		—	—			—

Outstanding at end of year		17,250		$	20.80	5.3	$	4	17,750	$	20.73	12,750		$	18.00

Exercisable at end of year (b)		13,500		$	18.89	4.8	$	29	12,750	$	18.00	12,750		$	18.00


(a)	The total intrinsic value of the options exercised during the years ended December 31, 2008 and 2006 was $5,000 and $704,000, respectively.

(b)	The options vested during the years ended December 31, 2008 and 2006 was 1,250 and 14,875, respectively. No options vested during the year ended December 31, 2007.

9. QUARTERLY FINANCIAL DATA

The following is a summary of the quarterly results of operations for the years ended December 31, 2008 and 2007 (unaudited as to quarterly information) (in thousands, except per share amounts):


	THREE MONTHS ENDED
										YEAR ENDED DECEMBER 31,
YEAR ENDED DECEMBER 31, 2008	MARCH 31,		JUNE 30,		SEPTEMBER 30,		DECEMBER 31,			YEAR ENDED DECEMBER 31,

Revenues from rental properties	$	20,242	$	20,187	$	20,328	$	20,406		$	81,163
Earnings from continuing operations		10,832		9,361		10,011		8,958			39,162
Net earnings		11,371		10,635		10,489		9,315			41,810
Diluted earnings per common share:
Earnings from continuing operations		.44		.38		.40		.36			1.58
Net earnings		.46		.43		.42		.38			1.69

		THREE MONTHS ENDED
										YEAR ENDED DECEMBER 31,
YEAR ENDED DECEMBER 31, 2007 (a)	MARCH 31,		JUNE 30,		SEPTEMBER 30,		DECEMBER 31,			YEAR ENDED DECEMBER 31,

Revenues from rental properties	$	17,713	$	20,248	$	20,000	$	20,108		$	78,069
Earnings (loss) from continuing operations (b)(c)		10,194		8,507		9,907		(498	)		28,110
Net earnings (b)(c)		10,437		10,024		12,846		587			33,894
Diluted earnings (loss) per common share:
Earnings (loss) from continuing operations (b)(c)		.41		.34		.40		(.02	)		1.13
Net earnings (b)(c)		.42		.40		.52		.02			1.37


(a)	Includes (from the date of the acquisition) the effect of the $84.6 million acquisition of convenience stores and gas station properties from FF-TSY Holding Company II LLC (successor to Trustreet Properties, Inc.) which was substantially completed by the end of the first quarter of 2007 (See footnote 10 for additional information).

(b)	The quarter ended December 31, 2007 includes the effect of a $10.5 million non-cash reserve for the full amount of the deferred rent receivable recorded as of December 31, 2007 related to approximately 40% of the properties under leases with Marketing, (See footnote 3 for additional information).

(c)	The quarter ended December 31, 2007 includes a net expense of $447,000 related to Mr. Andy Smith’s resignation (See footnote 8 for additional information).

10. PROPERTY ACQUISITIONS

On February 28, 2006, the Company completed the acquisition of eighteen retail motor fuel and convenience store properties located in Western New York for approximately $13,389,000. Simultaneous with the closing on the acquisition, the Company entered into a triple-net lease with a single tenant for all of the properties. The lease provides for annual rentals at a competitive rate and provides for escalations thereafter. The lease has an initial term of fifteen years and provides the tenant options for three renewal terms of five years each. The lease also provides that the tenant is responsible for all existing and future environmental conditions at the properties.

Effective March 31, 2007, the Company acquired fifty-nine convenience store and retail motor fuel properties in ten states for approximately $79,335,000 from various subsidiaries of FF-TSY Holding Company II, LLC (the successor to Trustreet Properties, Inc.) (“Trustreet”), a subsidiary of General Electric Capital Corporation, for cash with funds drawn under its Credit Agreement. Effective April 23, 2007, the Company acquired five additional properties from Trustreet for approximately $5,200,000. The aggregate cost of the acquisitions, including $1,131,000 of transaction costs, is approximately $84,535,000. Substantially all of the properties are triple-net-leased to tenants who previously leased the properties from the seller. The leases generally provide that the tenants are responsible for substantially all existing and future environmental conditions at the properties.

The purchase price has been allocated between assets, liabilities and intangible assets based on the estimates of fair value. The Company estimated the fair value of acquired tangible assets (consisting of land, buildings and improvements) “as if vacant” and identified intangible assets and liabilities (consisting of leasehold interests, above-market and below-market leases and in-place leases). Based on these estimates, the Company allocated $89,908,000, $5,351,000 and $10,724,000 of the purchase price to acquired tangible assets; identified intangible assets; and identified intangible liabilities, respectively.

The following unaudited pro forma condensed consolidated financial information has been prepared utilizing the historical financial statements of Getty Realty Corp. and the historical financial information of the properties acquired in 2007 which was derived from the consolidated books and records of Trustreet. The unaudited pro forma condensed consolidated financial information assumes that the acquisitions had occurred as of the beginning of each of the periods presented, after giving effect to certain adjustments including (a) rental income adjustments resulting from (i) the straight-lining of scheduled rent increases and (ii) the net amortization of the intangible assets relating to above-market leases and intangible liabilities relating to below-market leases over the remaining lease terms which average eleven years and (b) depreciation and amortization adjustments resulting from (i) the depreciation of real estate assets over their useful lives which average seventeen years and (ii) the amortization of intangible assets relating to leases in place over the remaining lease terms. The following unaudited pro forma condensed consolidated financial information also gives effect to the additional interest expense resulting from the assumed increase in borrowing outstanding drawn under the Credit Agreement to fund the acquisition.

The unaudited pro forma condensed financial information the years ended December 31, 2007 and 2006 is not indicative of the results of operations that would have been achieved had the acquisition from Trustreet reflected herein been consummated on the dates indicated or that will be achieved in the future and is as follows (in thousands, except per share amounts):


	2007		2006

Revenues from rental properties	$	81,344	$	81,724

Net earnings	$	34,348	$	43,900

Net earnings per share
Basic	$	1.39	$	1.77
Diluted	$	1.39	$	1.77

In 2007, the Company also exercised its fixed price purchase option for seven leased properties, purchased two properties and redeveloped one property by purchasing land adjacent to it and building a new convenience store on the existing site. In 2008, the Company exercised its fixed price purchase option for three leased properties and purchased six properties.

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Shareholders of Getty Realty Corp.:

In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of operations, comprehensive income and cash flows present fairly, in all material respects, the financial position of Getty Realty Corp. and its subsidiaries at December 31, 2008 and 2007, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2008, in conformity with accounting principles generally accepted in the United States of America. Also in our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2008 based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). The Company’s management is responsible for these financial statements, for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the Management’s Report on Internal Control Over Financial Reporting appearing under Item 9A. Our responsibility is to express opinions on these financial statements and on the Company’s internal control over financial reporting based on our integrated audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ PricewaterhouseCoopers LLP

New York, New York

March 2, 2009

Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

None.

Item 9A. Controls and Procedures

Disclosure Controls and Procedures

The Company maintains disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s reports filed or furnished pursuant to the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including its Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.

As required by the Exchange Act Rule 13a-15(b), the Company has carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and the Company’s Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures as of the end of the period covered by this Annual Report on Form 10-K. Based on the foregoing, the Company’s Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective at the reasonable assurance level as of December 31, 2008.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f). Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we have conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on our assessment under the framework in Internal Control — Integrated Framework, our management concluded that our internal control over financial reporting was effective as of December 31, 2008.

The effectiveness of our internal control over financial reporting as of December 31, 2008, has been audited by PricewaterhouseCoopers LLP, an independent registered public accounting firm, as stated in their report which appears in “Item 8. Financial Statements and Supplementary Data”.

There have been no changes in the Company’s internal control over financial reporting during the latest fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

NYSE Certifications

On June 16, 2008, in accordance with Section 303A.12 of the Listed Company Manual of the New York Stock Exchange, our Chief Executive Officer certified to the New York Stock Exchange that he was not aware of any violation by our Company of New York Stock Exchange corporate governance listing standards as of that date. Further the Company files certifications by its Chief Executive Officer and Chief Financial Officer with the SEC, in accordance with the Sarbanes-Oxley Act of 2002. These certifications are filed as exhibits to this our Annual Report on Form 10-K.

Item 9B. Other Information

None.

PART III

Item 10. Directors, Executive Officers and Corporate Governance

Information with respect to compliance with section 16(a) of the Exchange Act is incorporated herein by reference to information under the heading “Section 16(a) Beneficial Ownership Reporting Compliance” in the Proxy Statement. Information with respect to directors, the audit committee and the audit committee financial expert, and procedures by which shareholders may recommend to nominees to the board of directors in response to this item is incorporated herein by reference to information under the headings “Election of Directors” and “Directors’ Meetings, Committees and Executive Officers” in the Proxy Statement. The following table lists our executive officers, their respective ages, and the offices and positions held.


NAME	AGE	POSITION	OFFICER SINCE

Leo Liebowitz	81	Chairman and Chief Executive Officer	1971
Kevin C. Shea	49	Executive Vice President	2001
Thomas J. Stirnweis	50	Vice President, Treasurer and Chief Financial Officer	2001
Joshua Dicker	48	General Counsel and Corporate Secretary	2008

Mr. Liebowitz cofounded the Company in 1955 and has served as Chief Executive Officer since 1985. He was the President of the Company from May 1971 to May 2004. Mr. Liebowitz served as Chairman, Chief Executive Officer and a director of Marketing from October 1996 until December 2000. He is also a director of the Regional Banking Advisory Board of J.P. Morgan Chase & Co.

Mr. Shea has been with the Company since 1984 and has served as Executive Vice President since May 2004. He was Vice President since January 2001 and Director of National Real Estate Development prior thereto.

Mr. Stirnweis has been with the Company or Getty Petroleum Marketing Inc. since 1988 and has served as Vice President, Treasurer and Chief Financial Officer of the Company since May 2003. He joined the Company in January 2001 as Corporate Controller and Treasurer. Prior to joining the Company, Mr. Stirnweis was Manager of Financial Reporting and Analysis of Marketing.

Mr. Dicker joined the Company in February 2008 as General Counsel and Corporate Secretary. Prior to joining Getty, he was a partner at the national law firm Arent Fox, LLP, resident in its New York City office, specializing in corporate and transactional matters.

There are no family relationships between any of the Company’s directors or executive officers.

The Getty Realty Corp. Business Conduct Guidelines (“Code of Ethics”), which applies to all employees, including our chief executive officer and chief financial officer, is available on our website at www.gettyrealty.com.

Item 11. Executive Compensation

Information in response to this item is incorporated herein by reference to information under the heading “Executive Compensation” in the Proxy Statement.

Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

Information in response to this item is incorporated herein by reference to information under the heading “Beneficial Ownership of Capital Stock” and “Executive Compensation — Compensation Discussion and Analysis — Equity Compensation — Equity Compensation Plan Information” in the Proxy Statement.

Item 13. Certain Relationships and Related Transactions, and Director Independence

There were no such relationships or transactions to report for the year ended December 31, 2008. Information with respect to director independence is incorporated herein by reference to information under the heading “Directors’ Meetings, Committees and Executive Officers — Independence of Directors” in the Proxy Statement.

Item 14. Principal Accountant Fees and Services

Information in response to this item is incorporated herein by reference to information under the heading “Ratification of Appointment of Independent Registered Public Accounting Firm” in the Proxy Statement.

P ART IV

I tem 15. Exhibits and Financial Statement Schedules


	(a)(1) Financial Statements

	Information in response to this Item is included in “Item 8. Financial Statements and Supplementary Data”.

	(a)(2) Financial Statement Schedules

GETTY REALTY CORP.
INDEX TO FINANCIAL STATEMENT SCHEDULES
Item 15(a)(2)


		PAGES

Report of Independent Registered Public Accounting Firm on Financial Statement Schedules		69
Schedule II - Valuation and Qualifying Accounts and Reserves for the years ended December 31, 2008, 2007 and 2006		69
Schedule III - Real Estate and Accumulated Depreciation and Amortization as of December 31, 2008		70


	(a)(3) Exhibits

	Information in response to this Item is incorporated herein by reference to the Exhibit Index on page 86 of this Form 10-K.

R EPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
ON FINANCIAL STATEMENT SCHEDULES

To the Board of Directors of Getty Realty Corp.:

Our audits of the consolidated financial statements and of the effectiveness of internal control over financial reporting referred to in our report dated March 2, 2009 appearing in Item 8 of this Annual Report on Form 10-K also included an audit of the financial statement schedules listed in Item 15(a)(2) of this Form 10-K. In our opinion, these financial statement schedules present fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements.

/s/ PricewaterhouseCoopers LLP

New York, New York
March 2, 2009

GETTY REALTY CORP. and SUBSIDIARIES
S CHEDULE II — VALUATION and QUALIFYING ACCOUNTS and RESERVES
for the years ended December 31, 2008, 2007 and 2006
(in thousands)


	BALANCE AT BEGINNING OF YEAR		ADDITIONS		DEDUCTIONS		BALANCE AT END OF YEAR

December 31, 2008:
Allowance for deferred rent receivable	$	10,494	$	—	$	465	$	10,029
Allowance for mortgages and accounts receivable	$	100	$	71	$	71	$	100
Allowance for deposits held in escrow	$	—	$	377	$	—	$	377
Allowance for recoveries from state underground storage tank funds	$	650	$	—	$	—	$	650
December 31, 2007:
Allowance for deferred rent receivable	$	—	$	10,494	$	—	$	10,494
Allowance for mortgages and accounts receivable	$	30	$	70	$	—	$	100
Allowance for recoveries from state underground storage tank funds	$	650	$	—	$	—	$	650
December 31, 2006:
Allowance for mortgages and accounts receivable	$	29	$	44	$	43	$	30
Allowance for recoveries from state underground storage tank funds	$	750	$	—	$	100	$	650

GETTY REALTY CORP. and SUBSIDIARIES
SCHEDULE III — REAL ESTATE AND ACCUMULATED DEPRECIATION AND AMORTIZATION
As of December 31, 2008
(in thousands)

The summarized changes in real estate assets and accumulated depreciation are as follows:


	2008			2007			2006

Investment in real estate:
Balance at beginning of year	$	474,254		$	383,558		$	370,495
Acquisitions		6,540			94,700			15,496
Capital expenditures		—			1,310			42
Sales and condemnations		(3,939	)		(3,464	)		(1,416	)
Lease terminations		(3,288	)		(1,850	)		(1,059	)

Balance at end of year	$	473,567		$	474,254		$	383,558

Accumulated depreciation and amortization:
Balance at beginning of year	$	122,465		$	116,089		$	109,800
Depreciation and amortization expense		11,576			9,448			7,883
Sales and condemnations		(1,431	)		(1,222	)		(535	)
Lease terminations		(3,288	)		(1,850	)		(1,059	)

Balance at end of year	$	129,322		$	122,465		$	116,089

We are not aware of any material liens or encumbrances on any of our properties.


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


CEDAR PARK, TX	$	178,507	$	0	$	42,091	$	136,415	$	178,507	$	12,414	2007
ALBANY, NY		142,312		36,831		91,600		87,543		179,143		59,357	1985
SALISBURY, MA		119,698		59,615		80,598		98,715		179,313		89,410	1986
CARMEL, NY		20,419		158,943		20,750		158,612		179,362		154,391	1970
POTTSTOWN, PA		166,236		16,010		71,631		110,615		182,246		94,975	1989
LONG ISLAND CITY, NY		90,895		91,386		60,030		122,251		182,281		115,438	1972
BOILING SPRINGS, PA		14,792		167,641		14,792		167,641		182,433		151,310	1961
ARLINGTON, TX		182,460		0		30,425		152,035		182,460		17,212	2007
GREENVILLE, NY		77,153		105,325		77,152		105,326		182,478		99,023	1989
PIERMONT, NY		151,125		31,470		90,675		91,920		182,595		91,920	1978
SOUTH PORTLAND, ME		176,700		6,938		115,100		68,538		183,638		33,203	1985
AUBURN, ME		105,908		77,928		105,908		77,928		183,836		77,781	1986
KINGSTON, NY		68,341		115,961		44,379		139,923		184,302		136,199	1971
HOWELL, NJ		9,750		174,857		0		184,607		184,607		184,035	1978
PITTSFIELD, MA		97,153		87,874		40,000		145,027		185,027		144,983	1982
AGAWAM, MA		65,000		120,665		0		185,665		185,665		183,366	1982
IPSWICH, MA		138,918		46,831		95,718		90,031		185,749		87,034	1986
GETTYSBURG, PA		157,602		28,530		67,602		118,530		186,132		117,939	1986
ATHOL, MA		164,629		22,016		107,009		79,636		186,645		33,779	1991
GLEN ROCK, PA		20,442		166,633		20,442		166,633		187,075		145,128	1961
WHITE PLAINS, NY		120,393		67,315		0		187,708		187,708		187,708	1979
HADLEY, MA		119,276		68,748		36,080		151,944		188,024		147,948	1982
KINGSTON, NY		29,010		159,986		12,721		176,275		188,996		167,892	1972
TONAWANDA, NY		189,296		0		147,122		42,174		189,296		15,886	2000
SEAFORD, NY		32,000		157,665		0		189,665		189,665		162,443	1978
WISCASSET, ME		156,587		33,455		90,837		99,205		190,042		99,205	1986
BRISTOL, CT		108,808		81,684		44,000		146,492		190,492		142,705	1982
YONKERS, NY		111,300		80,000		65,000		126,300		191,300		116,522	1988
LANGHORNE, PA		122,202		69,328		50,000		141,530		191,530		96,391	1987
DELMAR, NY		150,000		42,478		70,000		122,478		192,478		118,294	1986
HUNTINGTON STATION, NY		140,735		52,045		84,000		108,780		192,780		108,416	1978
MECHANICSVILLE, VA		0		193,088		193,088		0		193,088		0	2005


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


CHRISTIANA, PA		182,593		11,178		65,212		128,559		193,771		128,559	1989
LINWOOD, PA		171,518		22,371		102,968		90,921		193,889		89,412	1987
OZONE PARK, NY		0		193,968		0		193,968		193,968		193,968	1986
ELMONT, NY		108,348		85,793		64,290		129,851		194,141		96,559	1982
ROTHSVILLE, PA		169,550		25,188		52,169		142,569		194,738		142,569	1989
OLD BRIDGE, NJ		85,617		109,980		56,190		139,407		195,597		138,339	1972
BREWSTER, NY		117,603		78,076		72,403		123,276		195,679		116,856	1972
BLOOMFIELD, CT		141,452		54,786		90,000		106,238		196,238		102,146	1986
JACKSONVILLE, FL		196,764		0		114,434		82,330		196,764		31,009	2000
EPHRATA, PA		187,843		9,400		65,212		132,031		197,243		131,124	1989
BRONX, NY		95,328		102,639		73,750		124,217		197,967		118,171	1976
RAVENA, NY		0		199,900		0		199,900		199,900		193,108	1991
BROOKLYN, NY		74,808		125,120		30,694		169,234		199,928		164,543	1967
POUGHKEEPSIE, NY		32,885		168,354		35,904		165,335		201,239		158,649	1971
JACKSONVILLE, FL		201,477		0		117,907		83,570		201,477		31,479	2000
DOUGLASSVILLE, PA		178,488		23,321		128,738		73,071		201,809		73,071	1990
CATSKILL, NY		104,447		99,076		203,523		0		203,523		0	1989
RHINEBECK, NY		203,658		0		101,829		101,829		203,658		9,505	2007
QUARRYVILLE, NY		35,917		168,199		35,916		168,200		204,116		161,348	1988
LEXINGTON, NC		204,139		0		43,311		160,828		204,139		17,602	2007
EXETER, NH		160,000		44,343		105,000		99,343		204,343		83,837	1986
MIDDLE VILLAGE, NY		130,684		73,741		89,960		114,465		204,425		108,299	1972
LEWISTON, NY		205,000		0		125,000		80,000		205,000		30,133	2000
MIDLAND PARK, NJ		201,012		4,080		150,000		55,092		205,092		49,668	1989
AUBURN, MA		175,048		30,890		125,048		80,890		205,938		80,639	1986
LAKEWOOD, NJ		130,148		77,265		70,148		137,265		207,413		136,702	1978
CLINTON, MA		177,978		29,790		115,686		92,082		207,768		43,245	1992
TOLLAND, CT		107,902		100,178		44,000		164,080		208,080		161,058	1982
BALDWIN, NY		101,952		106,328		61,552		146,728		208,280		112,964	1978
NORTH BABYLON, NY		91,888		117,066		59,059		149,895		208,954		147,091	1978
NEW YORK, NY		106,363		103,035		79,275		130,123		209,398		126,852	1976
HANCOCK, NY		100,000		109,470		50,000		159,470		209,470		155,229	1986
WATERFORD, CT		76,981		133,059		0		210,040		210,040		202,481	1982
AMITYVILLE, NY		70,246		139,953		42,148		168,051		210,199		168,051	1978
OCEANSIDE, NY		40,378		169,929		40,000		170,307		210,307		137,354	1970
MENANDS, NY		150,580		60,563		49,999		161,144		211,143		147,689	1988
WILLIAMSVILLE, NY		211,972		0		176,643		35,329		211,972		13,306	2000
PELHAM MANOR, NY		127,304		85,087		75,800		136,591		212,391		126,720	1972
MILLER PLACE, NY		110,000		103,160		66,000		147,160		213,160		145,331	1978
BRONX, NY		93,817		120,396		67,200		147,013		214,213		124,497	1985
MILFORD, MA		0		214,331		0		214,331		214,331		173,037	1985
BLUEPOINT, NY		96,163		118,524		96,068		118,619		214,687		114,006	1972
MOUNTVILLE, PA		195,635		19,506		78,254		136,887		215,141		136,887	1989
BAY SHORE, NY		188,900		26,286		123,000		92,186		215,186		53,485	1985
N. WINDHAM, ME		161,365		53,923		86,365		128,923		215,288		128,884	1986
TEWKSBURY, MA		125,000		90,338		75,000		140,338		215,338		134,274	1986
STRATFORD, NJ		215,597		0		0		215,597		215,597		206,617	1995
PELHAM MANOR, NY		136,791		78,987		75,000		140,778		215,778		137,650	1985
SEABROOK, NH		199,780		19,102		124,780		94,102		218,882		93,844	1986
FRANKLIN, CT		50,904		168,470		20,232		199,142		219,374		198,201	1982
WESTFIELD, MA		123,323		96,093		50,000		169,416		219,416		166,343	1982
HAMPTON, NH		193,103		26,449		135,598		83,954		219,552		83,589	1986
MIDDLETOWN, CT		133,022		86,915		131,312		88,625		219,937		88,625	1987
WORCESTER, MA		186,877		33,510		121,470		98,917		220,387		47,387	1993
STONY BROOK, NY		175,921		44,529		105,000		115,450		220,450		114,507	1978
YONKERS, NY		153,184		67,266		76,592		143,858		220,450		78,260	1987
EMMITSBURG, MD		146,949		73,613		101,949		118,613		220,562		118,392	1986
MANCHESTER, CT		65,590		156,628		64,750		157,468		222,218		156,833	1982
STATEN ISLAND, NY		0		222,525		0		222,525		222,525		222,525	1981
PELHAM, NH		169,182		53,497		136,077		86,602		222,679		80,417	1986
AMHERST, NY		223,009		0		173,451		49,558		223,009		29,860	2000
NEW ROCHELLE, NY		188,932		34,649		103,932		119,649		223,581		119,017	1982


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


SOMERSWORTH, NH		210,805		15,012		157,520		68,297		225,817		68,169	1986
RED HOOK, NY		0		226,787		0		226,787		226,787		220,274	1991
BRIDGEWATER, MA		190,360		36,762		140,000		87,122		227,122		81,814	1987
BROOKLYN, NY		135,693		91,946		100,035		127,604		227,639		107,679	1972
NEW YORK, NY		0		229,435		0		229,435		229,435		229,433	1985
HYANNIS, MA		222,472		7,282		144,607		85,147		229,754		24,909	1991
LAGRANGEVILLE, NY		129,133		101,140		64,626		165,647		230,273		163,995	1972
PINE HILL, NJ		190,568		39,918		115,568		114,918		230,486		112,628	1986
TREVOSE, PA		215,214		16,382		150,000		81,596		231,596		71,123	1987
MILFORD, NH		190,000		41,689		115,000		116,689		231,689		112,700	1986
W. HAVERSTRAW, NY		194,181		38,141		140,000		92,322		232,322		87,313	1978
MERIDEN, CT		126,188		106,805		72,344		160,649		232,993		155,320	1982
LANCASTER, PA		208,677		24,347		78,254		154,770		233,024		154,770	1989
WEST HAVEN, CT		185,138		48,619		74,000		159,757		233,757		157,837	1982
LEOMINSTER, MA		185,040		49,592		85,040		149,592		234,632		147,070	1986
PELHAM, NH		0		234,915		0		234,915		234,915		140,743	1996
NEW MILFORD, CT		113,947		121,174		0		235,121		235,121		231,921	1982
EBENEZER, PA		147,058		88,474		68,804		166,728		235,532		144,565	1989
STOUGHTON, MA		0		235,794		0		235,794		235,794		200,384	1990
QUINCY, MA		200,000		36,112		125,000		111,112		236,112		109,396	1986
HARWICH, MA		225,000		12,044		150,000		87,044		237,044		84,250	1986
NORTH KINGSTOWN, RI		211,835		25,971		89,135		148,671		237,806		147,346	1985
KENHORST, PA		143,466		94,592		65,212		172,846		238,058		154,465	1989
BOYERTOWN, PA		233,000		5,373		151,700		86,673		238,373		40,875	1985
ATCO, NJ		153,159		85,853		131,766		107,246		239,012		107,063	1987
SPRINGFIELD, MA		0		239,087		0		239,087		239,087		183,746	1984
COLUMBIA, PA		225,906		13,206		75,000		164,112		239,112		139,513	1989
PAWTUCKET, RI		237,100		2,990		154,400		85,690		240,090		39,103	1985
NEW HAVEN, CT		217,000		23,889		141,300		99,589		240,889		55,976	1985
ROTTERDAM, NY		140,600		100,399		91,600		149,399		240,999		112,696	1985
SACO, ME		204,006		37,173		150,694		90,485		241,179		90,385	1986
SOMERSWORTH, NH		180,800		60,497		117,700		123,597		241,297		72,820	1985
PITTSFIELD, MA		123,167		118,273		50,000		191,440		241,440		190,690	1982
BRONX, NY		45,044		196,956		10,044		231,956		242,000		202,976	1976
LEWISTON, ME		180,338		62,629		101,338		141,629		242,967		139,558	1986
LAKE RONKONKOMA, NY		87,097		156,576		51,000		192,673		243,673		189,671	1978
HANOVER, PA		231,028		13,252		70,000		174,280		244,280		155,369	1989
NEW WINDSOR, NY		150,000		94,791		75,000		169,791		244,791		157,978	1986
HILLSBOROUGH, NJ		237,122		7,729		100,000		144,851		244,851		67,608	1985
DEDHAM, MA		225,824		19,150		125,824		119,150		244,974		118,859	1987
POTTSVILLE, PA		162,402		82,769		43,471		201,700		245,171		188,055	1990
YONKERS, NY		202,826		42,877		144,000		101,703		245,703		86,111	1986
OSSINING, NY		140,992		104,761		97,527		148,226		245,753		141,908	1982
WELLSVILLE, NY		247,281		0		0		247,281		247,281		28,025	2006
MERIDEN, CT		207,873		39,829		84,000		163,702		247,702		162,841	1982
BETHPAGE, NY		210,990		38,356		126,000		123,346		249,346		122,757	1978
COTTAGE HILLS, IL		249,419		0		26,199		223,220		249,419		24,030	2007
LACKAWANNA, NY		250,030		0		129,870		120,160		250,030		56,548	2000
RED LION, PA		221,719		29,788		52,169		199,338		251,507		197,653	1989
BETHLEHEM, PA		208,677		42,927		130,423		121,181		251,604		118,994	1989
CROMWELL, CT		70,017		183,119		24,000		229,136		253,136		229,136	1982
BELLEVILLE, NJ		215,468		38,163		149,237		104,394		253,631		103,157	1986
BRISTOL, CT		253,639		0		149,553		104,086		253,639		17,346	2004
CENTRAL ISLIP, NY		103,183		151,449		61,435		193,197		254,632		193,197	1978
PORTSMOUTH, NH		235,000		20,257		150,000		105,257		255,257		104,984	1986
HAWTHORNE, NJ		245,100		10,967		159,600		96,467		256,067		48,303	1985
COLONIA, NJ		253,100		3,395		164,800		91,695		256,495		41,954	1985
HILLSIDE, NJ		225,000		31,552		150,000		106,552		256,552		105,238	1987
S. WEYMOUTH, MA		211,891		44,893		256,784		0		256,784		0	1985
WEST SENECA, NY		257,142		0		184,385		72,757		257,142		27,411	2000
WEST YARMOUTH, MA		225,000		33,165		125,000		133,165		258,165		132,212	1986


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


LONG ISLAND CITY, NY		106,592		151,819		73,260		185,151		258,411		156,275	1976
CLIFTON HGTS, PA		213,000		46,824		138,700		121,124		259,824		77,026	1985
ENFIELD, CT		259,881		0		0		259,881		259,881		127,392	2004
SHREWSBURY, PA		132,993		126,898		52,832		207,059		259,891		176,046	1989
REINHOLDS, PA		176,520		83,686		82,017		178,189		260,206		153,485	1989
EPHRATA, PA		208,604		52,826		30,000		231,430		261,430		173,272	1989
MILFORD, MA		0		262,436		0		262,436		262,436		192,695	1991
EXETER, NH		113,285		149,265		65,000		197,550		262,550		188,505	1986
EAST HILLS, NY		241,613		21,070		241,613		21,070		262,683		20,248	1986
STONY POINT, NY		59,329		203,448		55,800		206,977		262,777		199,852	1971
HYDE PARK, NY		253,100		12,015		139,100		126,015		265,115		109,042	1985
READING, PA		182,592		82,812		104,338		161,066		265,404		144,701	1989
HARTFORD, CT		233,000		32,563		151,700		113,863		265,563		65,422	1985
SOUTH PORTLAND, ME		180,689		84,980		110,689		154,980		265,669		154,980	1986
BRIDGEPORT, CT		245,100		20,652		159,600		106,152		265,752		56,447	1985
READING, PA		129,284		137,863		65,352		201,795		267,147		167,329	1989
E. PATCHOGUE, NY		57,049		210,390		34,213		233,226		267,439		231,219	1978
CLAYMONT, DE		237,200		30,878		151,700		116,378		268,078		69,812	1985
EAST HARTFORD, CT		208,004		60,493		84,000		184,497		268,497		184,155	1982
NEPTUNE CITY, NJ		269,600		0		175,600		94,000		269,600		41,048	1985
OAKHURST, NJ		225,608		46,405		100,608		171,405		272,013		169,702	1985
FRANKLIN, MA		253,619		18,437		164,852		107,204		272,056		37,758	1988
AGAWAM, MA		209,555		63,621		136,000		137,176		273,176		93,909	1985
WAPPINGERS FALLS, NY		114,185		159,162		111,785		161,562		273,347		154,655	1971
BRONX, NY		90,176		183,197		40,176		233,197		273,373		201,037	1976
COLONIE, NY		245,150		28,322		120,150		153,322		273,472		149,666	1986
RIDGEFIELD PARK, NJ		273,549		0		150,000		123,549		273,549		88,159	1997
NORTHPORT, NY		241,100		33,036		157,000		117,136		274,136		69,360	1985
SOUTHINGTON, CT		115,750		158,561		70,750		203,561		274,311		202,983	1982
FRANKLIN SQUARE, NY		152,572		121,756		137,315		137,013		274,328		94,541	1978
SANFORD, ME		265,523		9,178		201,316		73,385		274,701		73,385	1986
ARENDTSVILLE, PA		173,759		101,020		32,603		242,176		274,779		219,328	1989
OSSINING, NY		231,100		44,049		149,200		125,949		275,149		75,785	1985
WILMINGTON, DE		242,800		32,615		158,100		117,315		275,415		69,602	1985
LAURELDALE, PA		262,079		15,550		86,941		190,688		277,629		188,178	1989
BRONX, NY		0		278,517		0		278,517		278,517		224,698	1976
BAY SHORE, NY		156,382		123,032		85,854		193,560		279,414		189,628	1981
NORTH GRAFTON, MA		244,720		35,136		159,068		120,788		279,856		51,708	1991
NEFFSVILLE, PA		234,761		45,637		91,296		189,102		280,398		185,596	1989
EPHRATA, PA		183,477		96,937		136,809		143,605		280,414		121,045	1990
QUEENSBURY, NY		215,255		65,245		140,255		140,245		280,500		134,653	1986
BRYN MAWR, PA		221,000		59,832		143,900		136,932		280,832		89,510	1985
TERRYVILLE, CT		182,308		98,911		74,000		207,219		281,219		207,051	1982
NEW CITY, NY		180,979		100,597		109,025		172,551		281,576		171,798	1978
MALTA, NY		190,000		91,726		65,000		216,726		281,726		209,422	1986
BRONX, NY		88,865		193,679		63,315		219,229		282,544		217,432	1976
BRONX, NY		141,322		141,909		86,800		196,431		283,231		186,116	1972
PARADISE, PA		132,295		151,188		102,295		181,188		283,483		140,177	1986
RONKONKOMA, NY		76,478		208,121		46,057		238,542		284,599		233,393	1978
TROY, NY		225,000		60,569		146,500		139,069		285,569		85,229	1985
ELLENVILLE, NY		233,000		53,690		151,700		134,990		286,690		85,391	1985
SOUTH HADLEY, MA		232,445		54,351		90,000		196,796		286,796		191,723	1982
WESTBROOK, ME		93,345		193,654		50,431		236,568		286,999		192,936	1986
WORCESTER, MA		146,832		140,589		95,441		191,980		287,421		115,861	1991
WARWICK, RI		253,100		34,400		164,800		122,700		287,500		70,531	1985
WORCESTER, MA		275,866		11,674		179,313		108,227		287,540		33,559	1992
UNION, NJ		287,800		0		287,800		0		287,800		0	1985
RICHMOND, VA		120,818		167,895		0		288,713		288,713		264,641	1990
HAVERTOWN, PA		265,200		24,500		172,700		117,000		289,700		62,451	1985
FORT EDWARD, NY		225,000		65,739		150,000		140,739		290,739		137,351	1986
GRANBY, MA		58,804		232,477		24,000		267,281		291,281		204,923	1982


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


ELKINS PARK, PA		275,171		17,524		200,000		92,695		292,695		91,156	1990
BRONX, NY		0		293,507		0		293,507		293,507		293,507	1972
KING GEORGE, VA		0		293,638		293,638		0		293,638		0	2005
BALLSTON, NY		160,000		134,021		110,000		184,021		294,021		180,833	1986
HAMBURG, NY		294,031		0		163,906		130,125		294,031		49,013	2000
IPSWICH, MA		275,000		19,161		150,000		144,161		294,161		142,410	1986
ALBANY, NY		206,620		87,949		81,620		212,949		294,569		206,450	1986
NEW YORK, NY		125,923		168,772		78,125		216,570		294,695		213,843	1972
HAMBURG, PA		219,280		75,745		130,423		164,602		295,025		154,329	1989
WEST DEPTFORD, NJ		245,450		50,295		151,053		144,692		295,745		142,590	1987
BALDWIN, NY		290,923		5,007		151,280		144,650		295,930		62,219	1986
NORRISTOWN, PA		175,300		120,786		175,300		120,786		296,086		66,625	1985
KERNERSVILLE, NC		296,770		0		72,777		223,994		296,770		20,060	2007
STATEN ISLAND, NY		40,598		256,262		26,050		270,810		296,860		201,194	1973
PISCATAWAY, NJ		269,200		28,232		175,300		122,132		297,432		68,358	1985
ROANOKE, VA		91,281		206,221		0		297,502		297,502		229,390	1990
MANCHESTER, NH		261,100		36,404		170,000		127,504		297,504		68,448	1985
ORLEANS, MA		260,000		37,637		185,000		112,637		297,637		108,503	1986
MILLERTON, NY		175,000		123,063		100,000		198,063		298,063		185,327	1986
ROTTERDAM, NY		132,287		166,077		0		298,364		298,364		246,286	1995
STRATFORD, CT		285,200		14,728		185,700		114,228		299,928		57,536	1985
SALEM, MA		275,000		25,393		175,000		125,393		300,393		123,970	1986
MCCONNELLSBURG, PA		155,367		145,616		69,915		231,068		300,983		132,501	1989
EPPING, NH		170,000		131,403		120,000		181,403		301,403		162,869	1986
STATEN ISLAND, NY		0		301,713		0		301,713		301,713		233,997	1978
OXFORD, MA		293,664		9,098		190,882		111,880		302,762		32,247	1993
ORANGE, NJ		281,200		24,573		183,100		122,673		305,773		66,891	1985
DEPTFORD, NJ		281,200		24,745		183,100		122,845		305,945		66,308	1985
STATEN ISLAND, NY		173,667		133,198		113,369		193,496		306,865		179,987	1976
CASTILE, NY		307,196		0		132,196		175,000		307,196		19,833	2006
JAMAICA, NY		12,000		295,750		12,000		295,750		307,750		205,240	1970
CLIFTON, NJ		301,518		6,413		150,000		157,931		307,931		105,862	1987
BRONX, NY		0		309,235		176,558		132,677		309,235		71,647	1971
OXFORD, PA		191,449		118,321		65,212		244,558		309,770		217,909	1989
SOUTHBRIDGE, MA		249,169		62,205		161,960		149,414		311,374		80,091	1993
BUFFALO, NY		312,426		0		150,888		161,538		312,426		73,384	2000
PEMBROKE, NH		138,492		174,777		100,837		212,432		313,269		156,678	1986
CANDIA, NH		130,000		184,004		80,000		234,004		314,004		229,159	1986
N RICHLAND HILLS, TX		314,246		0		125,745		188,501		314,246		17,806	2007
BRONX, NY		130,396		184,222		90,396		224,222		314,618		207,544	1972
BALLSTON SPA, NY		210,000		105,073		100,000		215,073		315,073		210,459	1986
REGO PARK, NY		33,745		281,380		23,000		292,125		315,125		236,798	1974
PHILADELPHIA, PA		281,200		34,285		183,100		132,385		315,485		75,319	1985
EPSOM, NH		220,000		96,022		155,000		161,022		316,022		145,638	1986
TONAWANDA, NY		304,762		11,493		211,337		104,918		316,255		39,521	2000
RIDGEWOOD, NY		278,372		38,578		250,000		66,950		316,950		25,068	1986
WHITE PLAINS, NY		258,600		60,120		164,800		153,920		318,720		94,842	1985
NORRISTOWN, PA		241,300		78,419		157,100		162,619		319,719		90,430	1985
WEST TAGHKANIC, NY		202,750		117,540		121,650		198,640		320,290		135,096	1986
CATSKILL, NY		321,446		0		125,000		196,446		321,446		45,230	2004
ADAMSTOWN, PA		213,424		108,844		100,000		222,268		322,268		168,733	1989
GREEN VILLAGE, NJ		277,900		44,471		127,900		194,471		322,371		191,202	1985
MIDDLETOWN, RI		306,710		16,364		176,710		146,364		323,074		145,343	1987
BROOKLYN, NY		74,928		250,382		44,957		280,353		325,310		209,144	1978
SOUTH YARMOUTH, MA		275,866		49,961		179,313		146,514		325,827		65,103	1991
FURLONG, PA		175,300		151,150		175,300		151,150		326,450		97,131	1985
ALDAN, PA		281,200		45,539		183,100		143,639		326,739		84,049	1985
YARMOUTHPORT, MA		300,000		26,940		150,000		176,940		326,940		176,940	1986
FITCHBURG, MA		311,808		16,384		202,675		125,517		328,192		40,798	1991
WESTFIELD, MA		289,580		38,615		188,400		139,795		328,195		82,366	1985
ROBESONIA, PA		225,913		102,802		70,000		258,715		328,715		224,809	1989


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


BELMONT, MA		301,300		27,938		196,200		133,038		329,238		71,941	1985
WORCESTER, MA		284,765		45,285		185,097		144,953		330,050		67,168	1991
QUEENSBURY, NY		225,000		105,592		165,000		165,592		330,592		160,273	1986
PITTSFIELD, MA		281,200		51,100		183,100		149,200		332,300		121,888	1985
BRIDGEPORT, CT		313,400		20,303		204,100		129,603		333,703		67,230	1985
CAIRO, NY		191,928		142,895		46,650		288,173		334,823		279,210	1988
METHUEN, MA		147,330		188,059		50,731		284,658		335,389		239,946	1986
FITCHBURG, MA		142,383		194,291		92,549		244,125		336,674		144,755	1992
MILFORD, CT		293,512		43,846		191,000		146,358		337,358		85,956	1985
BRENTWOOD, NY		253,058		84,485		125,000		212,543		337,543		205,657	1968
BAY SHORE, NY		47,685		289,972		0		337,657		337,657		336,713	1969
BRIDGEPORT, CT		313,400		24,314		204,100		133,614		337,714		70,985	1985
CONSHOHOCKEN, PA		261,100		77,885		170,000		168,985		338,985		110,753	1985
PHILADELPHIA, PA		289,300		50,010		188,400		150,910		339,310		92,167	1985
WEST BOYLSTON, MA		311,808		28,937		202,675		138,070		340,745		52,841	1991
NORTH LINDENHURST, NY		341,530		0		192,000		149,530		341,530		62,218	1998
LATHAM, NY		275,000		68,160		150,000		193,160		343,160		187,787	1986
REIFFTON, PA		338,250		5,295		43,470		300,075		343,545		300,075	1989
OLD BRIDGE, NJ		319,521		24,445		204,621		139,345		343,966		74,086	1985
WESTBROOK, CT		344,881		0		0		344,881		344,881		143,700	2004
SCOTCH PLAINS, NJ		331,063		14,455		214,600		130,918		345,518		65,909	1985
HILLTOP, NJ		329,500		16,758		214,600		131,658		346,258		65,932	1985
BREWSTER, NY		302,564		44,393		142,564		204,393		346,957		200,406	1988
COMMACK, NY		321,400		25,659		209,300		137,759		347,059		74,227	1985
HATBORO, PA		285,200		61,979		185,700		161,479		347,179		104,001	1985
WANTAGH, NY		261,814		85,758		175,000		172,572		347,572		124,605	1985
BROOKLYN, NY		116,328		232,254		75,000		273,582		348,582		197,062	1980
BRONX, NY		128,419		221,197		100,681		248,935		349,616		200,262	1972
NEW BERN, NC		349,946		0		190,389		159,557		349,946		19,490	2007
IRVINGTON, NJ		271,200		79,011		176,600		173,611		350,211		116,726	1985
MEDIA, PA		326,195		24,082		191,000		159,277		350,277		101,463	1985
HATBORO, PA		289,300		61,371		188,400		162,271		350,671		103,093	1985
PHILADELPHIA, PA		285,200		65,498		185,700		164,998		350,698		105,438	1985
RIDGE, NY		276,942		73,821		200,000		150,763		350,763		125,987	1977
GRAND ISLAND, NY		350,849		0		247,348		103,501		350,849		55,756	2000
METHUEN, MA		300,000		50,861		150,000		200,861		350,861		199,115	1986
CINNAMINSON, NJ		326,501		24,931		176,501		174,931		351,432		172,960	1987
ABINGTON, PA		309,300		43,696		201,400		151,596		352,996		88,995	1985
BEDFORD, TX		353,047		0		112,953		240,094		353,047		29,199	2007
WORCESTER, MA		342,608		11,101		222,695		131,014		353,709		37,328	1991
BROOKLYN, NY		100,000		254,503		66,890		287,613		354,503		240,968	1972
MAGNOLIA, NJ		329,500		26,488		214,600		141,388		355,988		76,662	1985
TUCKERTON, NJ		224,387		132,864		131,018		226,233		357,251		222,358	1987
MERRIMACK, NH		151,993		205,823		100,598		257,218		357,816		198,323	1986
HYDE PARK, NY		300,000		59,198		175,000		184,198		359,198		180,659	1986
WILMINGTON, DE		337,500		21,971		219,800		139,671		359,471		72,609	1985
EAST PROVIDENCE, RI		309,950		49,546		202,050		157,446		359,496		93,763	1985
SCARSDALE, NY		257,100		102,632		167,400		192,332		359,732		125,659	1985
BRISTOL, CT		359,906		0		0		359,906		359,906		149,963	2004
BAYONNE, NJ		341,500		18,947		222,400		138,047		360,447		70,535	1985
WINDSOR LOCKS, CT		360,664		0		0		360,664		360,664		60,113	2004
BROOKLYN, NY		237,100		125,067		154,400		207,767		362,167		125,486	1985
BRIDGEPORT, CT		346,442		16,990		230,000		133,432		363,432		131,730	1985
LEOLA, PA		262,890		102,007		131,189		233,708		364,897		105,602	1989
BRISTOL, CT		365,028		0		237,268		127,760		365,028		21,292	2004
BROOKLYN, NY		0		365,767		0		365,767		365,767		337,789	1970
BRIDGEPORT, CT		338,415		27,786		219,800		146,401		366,201		77,714	1985
HOLYOKE, MA		329,500		38,345		214,600		153,245		367,845		145,091	1985
PORTLAND, ME		325,400		42,652		211,900		156,152		368,052		82,597	1985
BRONX, NY		69,150		300,279		34,150		335,279		369,429		256,816	1972


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period						Accumulated Depreciation		Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total


PLAINVILLE, CT		80,000		290,433		0		370,433		370,433		322,526	1983
CHERRY HILL, NJ		357,500		13,879		232,800		138,579		371,379		67,609	1985
CRANFORD, NJ		342,666		29,222		222,400		149,488		371,888		81,200	1985
STRATFORD, CT		301,300		70,735		196,200		175,835		372,035		112,470	1985
LEOMINSTER, MA		195,776		177,454		127,254		245,976		373,230		149,460	1991
MOHNTON, PA		317,228		56,374		66,425		307,177		373,602		291,371	1989
PAWTUCKET, RI		212,775		161,188		118,860		255,103		373,963		226,580	1986
HINGHAM, MA		352,606		22,484		242,520		132,570		375,090		130,995	1989
MINEOLA, NY		341,500		34,411		222,400		153,511		375,911		85,135	1985
BROOKLYN, NY		147,795		228,379		103,815		272,359		376,174		233,292	1972
STATEN ISLAND, NY		25,000		351,829		0		376,829		376,829		302,382	1972
WILMINGTON, DE		309,300		67,834		201,400		175,734		377,134		106,915	1985
SPRINGFIELD, MA		139,373		239,713		50,000		329,086		379,086		247,702	1983
TRENTON, NJ		373,600		9,572		243,300		139,872		383,172		65,722	1985
SLEEPY HOLLOW, NY		280,825		102,486		129,744		253,567		383,311		245,574	1969
S. GLENS FALLS, NY		325,000		58,892		188,700		195,192		383,892		195,192	1986
NORWALK, CT		257,308		128,940		104,000		282,248		386,248		281,503	1982
MASSAPEQUA, NY		333,400		53,696		217,100		169,996		387,096		103,834	1985
SPRING LAKE, NJ		345,500		42,194		225,000		162,694		387,694		90,468	1985
ROCHESTER, NH		179,717		208,103		100,000		287,820		387,820		233,623	1986
WORCESTER, MA		231,372		157,356		150,392		238,336		388,728		138,067	1991
OZONE PARK, NY		57,289		331,799		44,715		344,373		389,088		289,034	1976
NEW ROCHELLE, NY		337,500		51,741		219,800		169,441		389,241		96,058	1985
NEW BRITAIN, CT		390,497		0		253,823		136,674		390,497		22,779	2004
WALL TOWNSHIP, NJ		336,441		55,709		121,441		270,709		392,150		266,566	1986
BRONX, NY		70,132		322,265		30,132		362,265		392,397		272,357	1972
LANCASTER, PA		308,964		83,443		104,338		288,069		392,407		271,636	1989
FRIENDSHIP, NY		392,517		0		42,517		350,000		392,517		39,667	2006
SAUGERTIES, NY		328,668		63,983		328,668		63,983		392,651		60,624	1988
INTERCOURSE, PA		311,503		81,287		157,801		234,989		392,790		100,787	1989
SOUTH AMBOY, NJ		299,678		94,088		178,950		214,816		393,766		213,268	1978
BASKING RIDGE, NJ		362,172		32,960		200,000		195,132		395,132		131,994	1986
GARDEN CITY, NY		361,600		33,774		235,500		159,874		395,374		87,489	1985
WOBURN, MA		350,000		45,681		200,000		195,681		395,681		193,825	1986
COBALT, CT		395,683		0		0		395,683		395,683		164,867	2004
AUBURN, MA		369,306		27,792		240,049		157,049		397,098		54,077	1991
STATEN ISLAND, NY		357,904		39,588		230,300		167,192		397,492		95,569	1985
FLUSHING, NY		118,309		280,435		78,309		320,435		398,744		232,913	1973
OCEANSIDE, NY		313,400		88,863		204,100		198,163		402,263		102,139	1985
BELLAIRE, NY		329,500		73,358		214,600		188,258		402,858		111,531	1985
CATSKILL, NY		404,988		0		354,365		50,623		404,988		4,050	2007
NORTH HAVEN, CT		405,389		0		251,985		153,404		405,389		32,459	2004
BRIDGEPORT, CT		349,500		56,209		227,600		178,109		405,709		107,742	1985
WORCESTER, MA		385,600		21,339		251,100		155,839		406,939		79,050	1985
TRENTON, NJ		337,500		69,461		219,800		187,161		406,961		120,564	1985
WILMINGTON, DE		369,600		38,077		240,700		166,977		407,677		93,054	1985
BRONX, NY		118,025		290,298		73,025		335,298		408,323		282,534	1972
SEAFORD, NY		325,400		83,257		211,900		196,757		408,657		99,029	1985
WATERTOWN, CT		351,771		58,812		204,027		206,556		410,583		109,570	1992
MORRISVILLE, PA		377,600		33,522		245,900		165,222		411,122		90,191	1985
GLENDALE, NY		124,438		287,907		86,160		326,185		412,345		270,940	1976
JERICHO, NY		0		412,536		0		412,536		412,536		270,549	1998
BRONX, NY		60,000		353,955		60,800		353,155		413,955		277,239	1965
CORONA, NY		114,247		300,172		112,800		301,619		414,419		215,843	1965
NEW ROCHELLE, NY		415,180		0		251,875		163,305		415,180		67,712	1998
WARWICK, RI		376,563		39,933		205,889		210,607		416,496		208,671	1989
ST. ALBANS, NY		329,500		87,250		214,600		202,150		416,750		128,829	1985
NASHUA, NH		197,142		219,639		155,837		260,944		416,781		198,380	1986
WILMINGTON, DE		313,400		103,748		204,100		213,048		417,148		138,441	1985
HAVERHILL, MA		400,000		17,182		225,000		192,182		417,182		191,937	1986
PHILADELPHIA, PA		389,700		28,006		253,800		163,906		417,706		87,019	1985


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total		Accumulated Depreciation


BERGENFIELD, NJ		381,590		36,271		300,000		117,861		417,861		114,909	1990
PLAISTOW, NH		300,406		117,924		244,694		173,636		418,330		163,605	1987
BELMONT, MA		389,700		28,871		253,800		164,771		418,571		87,317	1985
NEW HOLLAND, PA		313,015		106,839		143,465		276,389		419,854		251,559	1989
MADISON, NC		420,878		0		45,705		375,174		420,878		34,864	2007
TRAPPE, PA		377,600		44,509		245,900		176,209		422,109		101,796	1985
FRAMINGHAM, MA		400,449		22,280		260,294		162,435		422,729		53,269	1991
TAYLORSVILLE, NC		422,809		0		134,188		288,621		422,809		28,316	2007
PROVIDENCE, RI		231,372		191,647		150,392		272,627		423,019		140,229	1991
NORTHBOROUGH, MA		404,900		18,353		263,185		160,068		423,253		48,522	1993
MASTIC, NY		313,400		110,180		204,100		219,480		423,580		157,909	1985
PARAMUS, NJ		381,700		42,394		248,600		175,494		424,094		100,322	1985
HAVERTOWN, PA		402,000		22,660		253,800		170,860		424,660		94,304	1985
ELIZABETH, NJ		405,800		18,881		264,300		160,381		424,681		79,555	1985
BEVERLY, MA		275,000		150,741		175,000		250,741		425,741		213,799	1986
WORCESTER, MA		275,866		150,472		179,313		247,025		426,338		135,122	1991
GLEN HEAD, NY		234,395		192,295		102,645		324,045		426,690		324,045	1982
MIDLOTHIAN, TX		429,142		0		71,970		357,172		429,142		37,101	2007
HUDSON, NY		303,741		126,379		151,871		278,249		430,120		133,493	1989
PHOENIXVILLE, PA		413,800		17,561		269,500		161,861		431,361		80,398	1985
LEWISTON, ME		341,900		89,500		222,400		209,000		431,400		141,051	1985
WYOMISSING HILLS, PA		319,320		113,176		76,074		356,422		432,496		334,171	1989
ALLENTOWN, PA		357,500		76,385		232,800		201,085		433,885		110,532	1985
DERRY, NH		417,988		16,295		157,988		276,295		434,283		275,733	1987
AUDUBON, NJ		421,800		12,949		274,700		160,049		434,749		76,937	1985
ASBURY PARK, NJ		418,966		18,038		272,100		164,904		437,004		82,827	1985
BELLEVILLE, NJ		397,700		39,410		259,000		178,110		437,110		98,955	1985
BLACKWOOD, NJ		401,700		36,736		261,600		176,836		438,436		97,885	1985
DOYLESTOWN, PA		405,800		32,659		264,300		174,159		438,459		93,290	1985
NEWARK, DE		405,800		35,844		264,300		177,344		441,644		96,555	1985
GLENVILLE, NY		343,723		98,299		219,800		222,222		442,022		144,438	1985
PHILADELPHIA, PA		237,100		205,495		154,400		288,195		442,595		182,411	1985
WORCESTER, MA		167,745		275,852		167,745		275,852		443,597		156,796	1991
FAIRFIELD, CT		430,000		13,631		280,000		163,631		443,631		77,554	1985
WEST CHESTER, PA		421,800		21,935		274,700		169,035		443,735		85,817	1985
REVERE, MA		250,000		193,854		150,000		293,854		443,854		249,800	1986
BRONX, NY		128,049		315,917		83,849		360,117		443,966		263,315	1972
LANSDALE, PA		243,844		200,458		243,844		200,458		444,302		117,725	1985
DUDLEY, MA		302,563		141,993		196,666		247,890		444,556		111,855	1991
METHUEN, MA		379,664		64,941		245,900		198,705		444,605		122,989	1985
LOWELL, MA		360,949		83,674		200,949		243,674		444,623		243,406	1985
JERSEY CITY, NJ		401,700		43,808		261,600		183,908		445,508		104,788	1985
WETHERSFIELD, CT		446,610		0		0		446,610		446,610		186,088	2004
BAYSIDE, NY		245,100		202,833		159,600		288,333		447,933		186,278	1985
RIDGEFIELD, CT		401,630		47,610		166,861		282,379		449,240		276,351	1985
SHARON HILL, PA		411,057		39,574		266,800		183,831		450,631		102,910	1985
ELMONT, NY		360,056		90,633		224,156		226,533		450,689		115,598	1985
WHITING, NJ		447,199		3,519		167,090		283,628		450,718		282,841	1989
PORT JEFFERSON, NY		387,478		63,743		245,753		205,468		451,221		124,739	1985
UPTON, MA		428,498		24,611		278,524		174,585		453,109		57,819	1991
WYANDANCH, NY		453,131		0		279,500		173,631		453,131		72,197	1998
WAKEFIELD, RI		413,800		39,616		269,500		183,916		453,416		94,885	1985
PORTSMOUTH, NH		225,000		228,704		125,000		328,704		453,704		264,433	1986
WORCESTER, MA		271,417		183,331		176,421		278,327		454,748		157,381	1991
ALDAN, PA		433,800		21,152		282,500		172,452		454,952		86,068	1985
WILLINGBORO, NJ		425,800		29,928		277,300		178,428		455,728		94,774	1985
NEWBURGH, NY		430,766		25,850		150,000		306,616		456,616		297,464	1989
HUNTINGDON VALLEY, PA		421,800		36,439		274,700		183,539		458,239		99,269	1985
WARWICK, RI		434,752		24,730		266,800		192,682		459,482		112,033	1985
EAST ORANGE, NJ		421,508		37,977		272,100		187,385		459,485		104,384	1985
NISKAYUNA, NY		425,000		35,421		275,000		185,421		460,421		180,531	1986


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total		Accumulated Depreciation


EVERETT, MA		269,500		190,931		269,500		190,931		460,431		109,593	1985
FOXBOROUGH, MA		426,593		34,403		325,000		135,996		460,996		129,994	1990
BRIDGEPORT, CT		377,600		83,549		245,900		215,249		461,149		141,059	1985
YONKERS, NY		291,348		170,478		216,348		245,478		461,826		225,565	1972
AUSTIN, TX		462,233		0		274,300		187,933		462,233		21,300	2007
SIMSBURY, CT		317,704		144,637		206,700		255,641		462,341		186,794	1985
BENNINGTON, VT		309,300		154,480		201,400		262,380		463,780		150,558	1985
BRONX, NY		104,130		360,410		90,000		374,540		464,540		308,097	1985
IRVINGTON, NJ		409,700		54,841		266,800		197,741		464,541		117,015	1985
LEICESTER, MA		266,968		197,898		173,529		291,337		464,866		159,423	1991
FARMINGTON, CT		466,271		0		303,076		163,195		466,271		27,200	2004
RUTHER GLEN, VA		0		466,341		31,341		435,000		466,341		65,250	2005
NORTH PLAINFIELD, NJ		227,190		239,709		175,000		291,899		466,899		283,378	1978
WATERBURY, CT		468,469		0		304,505		163,964		468,469		27,329	2004
QUAKERTOWN, PA		379,111		89,812		243,300		225,623		468,923		146,056	1985
WATCHUNG, NJ		449,900		20,339		293,000		177,239		470,239		87,508	1985
BROCKTON, MA		275,866		194,619		179,313		291,172		470,485		167,439	1991
WALPOLE, MA		449,900		20,586		293,000		177,486		470,486		85,658	1985
POTTSVILLE, PA		451,360		19,361		147,740		322,981		470,721		316,077	1990
PARLIN, NJ		441,900		29,075		287,800		183,175		470,975		95,855	1985
WESTFORD, MA		275,000		196,493		175,000		296,493		471,493		240,656	1986
CHATHAM, MA		275,000		197,302		175,000		297,302		472,302		239,173	1986
STATEN ISLAND, NY		101,033		371,591		75,650		396,974		472,624		283,688	1972
FALMOUTH, MA		150,000		322,942		75,000		397,942		472,942		314,094	1986
BLOOMFIELD, NJ		441,900		32,951		287,800		187,051		474,851		99,723	1985
STATEN ISLAND, NY		389,700		88,922		253,800		224,822		478,622		145,297	1985
CRANSTON, RI		466,100		12,576		303,500		175,176		478,676		83,092	1985
POTTSTOWN, PA		430,000		48,854		280,000		198,854		478,854		113,801	1985
MEDIA, PA		474,100		5,055		308,700		170,455		479,155		77,281	1985
WILMINGTON, DE		446,000		33,323		290,400		188,923		479,323		100,322	1985
TRENTON, NJ		466,100		13,987		303,500		176,587		480,087		84,289	1985
ORANGE, MA		476,102		4,015		250,000		230,117		480,117		213,118	1991
CHATHAM, NY		349,133		131,805		225,000		255,938		480,938		175,146	1985
CLINTON, MA		385,600		95,698		251,100		230,198		481,298		151,538	1985
NUTLEY, NJ		433,800		48,677		282,500		199,977		482,477		113,522	1985
JACKSONVILLE, FL		485,514		0		388,434		97,080		485,514		36,564	2000
JERSEY CITY, NJ		438,000		51,856		285,200		204,656		489,856		116,246	1985
CLIFTON HGTS., PA		428,201		63,403		256,400		235,204		491,604		155,624	1985
LEWISVILLE, TX		493,734		0		109,925		383,809		493,734		19,703	2008
BEVERLY, NJ		470,100		24,003		306,100		188,003		494,103		93,921	1985
NEPTUNE, NJ		455,726		39,090		293,000		201,816		494,816		108,946	1985
MOORESTOWN, NJ		470,100		27,064		306,100		191,064		497,164		98,571	1985
SALEM, NH		450,000		47,484		350,000		147,484		497,484		141,589	1986
PLAINFIELD, NJ		470,100		29,975		306,100		193,975		500,075		99,062	1985
EAST PROVIDENCE, RI		486,675		13,947		316,600		184,022		500,622		87,766	1985
FRAMINGHAM, MA		297,568		203,147		193,419		307,296		500,715		178,557	1992
ELMONT, NY		388,848		114,933		231,000		272,781		503,781		239,255	1978
METHUEN, MA		490,200		16,282		319,200		187,282		506,482		90,885	1985
SOMERVILLE, NJ		252,717		254,230		200,500		306,447		506,947		199,530	1987
GLEN HEAD, NY		462,468		45,355		300,900		206,923		507,823		115,455	1985
CHESHIRE, CT		490,200		19,050		319,200		190,050		509,250		93,563	1985
ALBANY, NY		404,888		104,378		261,600		247,666		509,266		164,570	1985
EAST MEADOW, NY		425,000		86,005		325,000		186,005		511,005		149,325	1986
WAYNE, NJ		490,200		21,766		319,200		192,766		511,966		95,698	1985
NUTLEY, NJ		0		512,504		329,248		183,256		512,504		20,321	1986
WEST ROXBURY, MA		490,200		23,134		319,200		194,134		513,334		94,193	1985
BRISTOL, PA		430,500		82,981		280,000		233,481		513,481		144,493	1985
PLEASANT VALLEY, NY		398,497		115,129		240,000		273,626		513,626		216,045	1986
WATERBURY, CT		515,172		0		334,862		180,310		515,172		30,050	2004
FLUSHING, NY		516,110		0		320,125		195,985		516,110		81,489	1998
FAIRVIEW HEIGHTS, IL		516,564		0		78,440		438,124		516,564		40,671	2007


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total		Accumulated Depreciation


WAYNE, NJ		474,100		42,926		308,700		208,326		517,026		114,819	1985
WESTBOROUGH, MA		311,808		205,994		202,675		315,127		517,802		181,224	1991
STAMFORD, CT		506,860		15,635		329,700		192,795		522,495		92,202	1985
SCHENECTADY, NY		225,000		298,103		150,000		373,103		523,103		368,360	1986
ROSLYN, PA		349,500		173,661		227,600		295,561		523,161		219,133	1985
PHILADELPHIA, PA		302,999		220,313		181,497		341,815		523,312		283,719	1985
GREAT NECK, NY		500,000		24,468		450,000		74,468		524,468		74,391	1985
STATEN ISLAND, NY		349,500		176,590		227,600		298,490		526,090		188,027	1985
HANOVER, PA		108,435		417,763		108,435		417,763		526,198		411,692	1958
WHITE PLAINS, NY		0		527,925		302,607		225,318		527,925		119,172	1972
SAYVILLE, NY		528,225		0		300,000		228,225		528,225		95,094	1998
GLENDALE, NY		368,625		159,763		235,500		292,888		528,388		180,701	1985
BRONX, NY		78,168		450,267		65,680		462,755		528,435		354,837	1972
HYDE PARK, MA		499,175		29,673		321,800		207,048		528,848		108,740	1985
UNION, NJ		490,200		41,361		319,200		212,361		531,561		112,345	1985
WEST MILFORD, NJ		502,200		31,918		327,000		207,118		534,118		108,346	1985
SPOTSWOOD, NJ		466,675		69,036		303,500		232,211		535,711		139,777	1985
BILLERICA, MA		400,000		135,809		250,000		285,809		535,809		271,481	1986
LONG BRANCH, NJ		514,300		22,951		334,900		202,351		537,251		101,290	1985
WILMINGTON, DE		381,700		156,704		248,600		289,804		538,404		178,103	1985
NEW BEDFORD, MA		522,300		18,274		340,100		200,474		540,574		96,436	1985
NORFOLK, VA		534,910		6,050		310,630		230,330		540,960		230,330	1990
PLAINVILLE, CT		544,503		0		353,927		190,576		544,503		31,763	2004
SOUTH WINDSOR, CT		544,857		0		336,737		208,120		544,857		55,038	2004
LEVITTOWN, NY		502,757		42,113		327,000		217,870		544,870		117,361	1985
JACKSONVILLE, FL		545,314		0		256,434		288,880		545,314		108,809	2000
ARLINGTON, MA		518,300		27,906		337,500		208,706		546,206		106,607	1985
STAMFORD, CT		506,580		40,429		329,700		217,309		547,009		115,058	1985
WALLINGFORD, CT		550,553		0		334,901		215,652		550,553		44,771	2004
LOWELL, MA		375,000		175,969		250,000		300,969		550,969		244,168	1986
PRATTSBURG, NY		553,136		0		303,136		250,000		553,136		28,333	2006
NEW YORK, NY		146,159		407,286		43,461		509,984		553,445		389,146	1976
SOUDERTON, PA		381,700		172,170		248,600		305,270		553,870		194,906	1985
SALT POINT, NY		0		554,243		301,775		252,468		554,243		93,244	1987
MERRICK, NY		477,498		77,925		240,764		314,659		555,423		143,579	1987
HARWICHPORT, MA		382,653		173,989		248,724		307,918		556,642		158,168	1991
ROCKLAND, MA		534,300		23,616		347,900		210,016		557,916		104,115	1985
ROCHESTER, NY		559,049		0		159,049		400,000		559,049		45,333	2006
JACKSONVILLE, FL		559,514		0		296,434		263,080		559,514		99,091	2000
VALATIE, NY		165,590		394,981		90,829		469,742		560,571		410,011	1989
FREEHOLD, NJ		494,275		68,507		402,834		159,948		562,782		90,408	1978
FALMOUTH, MA		519,382		43,841		458,461		104,762		563,223		103,923	1988
FLEMINGTON, NJ		546,742		17,494		346,342		217,894		564,236		103,347	1985
WORCESTER, MA		497,642		67,806		321,800		243,648		565,448		145,995	1985
PHILADELPHIA, PA		341,500		224,647		222,400		343,747		566,147		213,105	1985
RIDGEFIELD, CT		535,140		33,590		347,900		220,830		568,730		114,126	1985
EAST HARTFORD, CT		555,826		13,797		301,322		268,301		569,623		79,332	1991
HARTFORD, CT		570,898		0		371,084		199,814		570,898		33,304	2004
CENTRAL ISLIP, NY		572,244		0		357,500		214,744		572,244		89,367	1998
HEWLETT, NY		490,200		85,618		319,200		256,618		575,818		125,647	1985
NEW BEDFORD, MA		482,275		95,553		293,000		284,828		577,828		190,436	1985
PORTSMOUTH, VA		562,255		17,106		221,610		357,751		579,361		353,473	1990
LONG ISLAND CITY, NY		191,420		390,783		116,554		465,649		582,203		330,427	1981
BROOKLYN, NY		282,104		301,052		176,292		406,864		583,156		363,404	1967
STATEN ISLAND, NY		301,300		288,603		196,200		393,703		589,903		265,024	1985
CLEMENTON, NJ		562,500		27,581		366,300		223,781		590,081		112,687	1985
BRIDGEPORT, CT		526,775		63,505		342,700		247,580		590,280		142,201	1985
WILTON, CT		518,881		71,425		337,500		252,806		590,306		145,308	1985
ROCHESTER, NY		595,237		0		305,237		290,000		595,237		9,157	2008
PEABODY, MA		400,000		200,363		275,000		325,363		600,363		283,709	1986
SEWELL, NJ		551,912		48,485		355,712		244,685		600,397		130,610	1985


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total		Accumulated Depreciation


N. PROVIDENCE, RI		542,400		61,717		353,200		250,917		604,117		143,693	1985
NEW YORK, NY		0		605,891		0		605,891		605,891		443,005	1986
FITCHBURG, MA		390,276		216,589		253,679		353,186		606,865		187,140	1992
KERNERSVILLE, NC		608,441		0		250,505		357,936		608,441		35,761	2007
NORTH ANDOVER, MA		393,700		220,132		256,400		357,432		613,832		223,589	1985
FLORAL PARK, NY		616,700		0		356,400		260,300		616,700		108,328	1998
ASHAWAY, RI		618,609		0		402,096		216,513		618,609		36,088	2004
NORWALK, CT		0		619,018		401,996		217,022		619,018		24,661	1988
HALFMOON, NY		415,000		205,598		228,100		392,498		620,598		383,236	1986
HAMBURG, NJ		598,600		22,121		389,800		230,921		620,721		112,487	1985
ASHLAND, MA		606,700		17,424		395,100		229,024		624,124		106,153	1985
RANDALLSTOWN, MD		590,600		33,594		384,600		239,594		624,194		123,548	1985
WESTPORT, CT		603,260		23,070		392,500		233,830		626,330		111,073	1985
PHILADELPHIA, PA		405,800		221,269		264,300		362,769		627,069		243,263	1985
PHILADELPHIA, PA		417,800		210,406		272,100		356,106		628,206		209,874	1985
PATERSON, NJ		619,548		16,765		402,900		233,413		636,313		111,062	1985
DOVER, NJ		606,700		30,153		395,100		241,753		636,853		120,840	1985
CRANBURY, NJ		606,700		31,467		395,100		243,067		638,167		122,575	1985
KERNERSVILLE, NC		638,633		0		338,386		300,247		638,633		31,437	2007
CLINTON, MA		586,600		52,725		382,000		257,325		639,325		138,047	1985
WANTAGH, NY		640,680		0		370,200		270,480		640,680		112,697	1998
STERLING, MA		476,102		165,998		309,466		332,634		642,100		157,235	1991
PHILADELPHIA, PA		369,600		273,642		240,700		402,542		643,242		291,682	1985
PHILADELPHIA, PA		369,600		276,720		240,700		405,620		646,320		275,273	1985
EASTCHESTER, NY		614,700		34,500		400,300		248,900		649,200		126,891	1985
BALTIMORE, MD		474,100		176,067		308,700		341,467		650,167		201,170	1985
WORCESTER, MA		476,102		174,233		309,466		340,869		650,335		332,336	1991
NORTH MERRICK, NY		510,350		141,506		332,200		319,656		651,856		183,150	1985
BELMAR, NJ		630,800		22,371		410,800		242,371		653,171		117,831	1985
BROOKLYN, NY		276,831		376,706		168,423		485,114		653,537		357,052	1978
WATERTOWN, MA		357,500		296,588		321,030		333,058		654,088		213,660	1985
PORT EWEN, NY		657,147		0		176,924		480,223		657,147		47,853	2007
HASBROUCK HEIGHTS, NJ		639,648		19,648		416,000		243,296		659,296		115,788	1985
LEVITTOWN, NY		546,400		113,057		355,800		303,657		659,457		162,557	1985
LANCASTER, PA		642,000		17,993		300,000		359,993		659,993		359,993	1989
HARTFORD, CT		664,966		0		432,228		232,738		664,966		38,792	2004
ROCKVILLE CENTRE, NY		350,325		315,779		201,400		464,704		666,104		352,076	1985
FEASTERVILLE, PA		510,200		160,144		332,200		338,144		670,344		215,694	1985
NORTH ATTLEBORO, MA		662,900		16,549		431,700		247,749		679,449		116,320	1985
WEYMOUTH, MA		643,297		36,516		418,600		261,213		679,813		129,700	1985
RENSSELAER, NY		683,781		0		286,504		397,277		683,781		87,339	2004
BATAVIA, NY		684,279		0		364,279		320,000		684,279		36,267	2006
MCAFEE, NJ		670,900		15,711		436,900		249,711		686,611		116,230	1985
BROOKLYN, NY		421,800		270,436		274,700		417,536		692,236		266,711	1985
DARIEN, CT		667,180		26,061		434,300		258,941		693,241		126,796	1985
HYANNIS, MA		650,800		42,552		423,800		269,552		693,352		141,554	1985
MOUNTAINSIDE, NJ		664,100		31,620		431,700		264,020		695,720		130,274	1985
WINSTON SALEM, NC		696,397		0		251,987		444,410		696,397		48,678	2007
EAST HAMPTON, NY		659,127		39,313		427,827		270,613		698,440		137,463	1985
BARRE, MA		535,614		163,028		348,149		350,493		698,642		160,830	1991
BARRINGTON, RI		490,200		213,866		319,200		384,866		704,066		266,871	1985
DOBBS FERRY, NY		670,575		33,706		434,300		269,981		704,281		135,250	1985
NORTH BERGEN, NJ		629,527		81,006		409,527		301,006		710,533		173,873	1985
PHILADELPHIA, PA		687,000		25,017		447,400		264,617		712,017		127,431	1985
FRANKLIN TWP., NJ		683,000		30,257		444,800		268,457		713,257		133,770	1985
ALFRED STATION, NY		714,108		0		414,108		300,000		714,108		34,000	2006
NEW HAVEN, CT		538,400		176,230		350,600		364,030		714,630		258,057	1985
STAMFORD, CT		603,260		112,305		392,500		323,065		715,565		201,191	1985
BLOOMFIELD, NJ		695,000		21,021		371,400		344,621		716,021		230,898	1985
BAYSIDE, NY		470,100		246,576		306,100		410,576		716,676		248,075	1985
WILLIMANTIC, CT		716,782		0		465,908		250,874		716,782		41,813	2004


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment			Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description						Land		Building and Improvements		Total		Accumulated Depreciation


TRENTON, NJ		684,650		33,275			444,800		273,125		717,925		137,961	1985
BRONX, NY		390,200		329,357			251,100		468,457		719,557		296,590	1985
NORWALK, CT		510,760		209,820			332,200		388,380		720,580		239,435	1985
ST. GEORGES, DE		498,200		222,596			324,725		396,071		720,796		293,151	1985
SANDSTON, VA		0		721,651			101,651		620,000		721,651		93,000	2005
RIVERHEAD, NY		723,346		0			431,700		291,646		723,346		121,374	1998
AVON, CT		730,886		0			402,949		327,937		730,886		96,628	2002
BIDDEFORD, ME		723,100		8,009			340,000		391,109		731,109		325,049	1985
NEWTON, MA		691,000		42,832			450,000		283,832		733,832		141,538	1985
LONDONDERRY, NH		703,100		31,092			457,900		276,292		734,192		136,026	1985
SAG HARBOR, NY		703,600		36,012			458,200		281,412		739,612		143,094	1985
RIDGEWOOD, NJ		703,100		36,959			457,900		282,159		740,059		140,211	1985
FLEMINGTON, NJ		708,160		33,072			460,500		280,732		741,232		137,084	1985
PRINCETON, NJ		703,100		40,615			457,900		285,815		743,715		146,858	1985
HARRISBURG, PA		399,016		347,590			198,740		547,866		746,606		344,802	1989
MAYNARD, MA		735,200		12,714			478,800		269,114		747,914		122,939	1985
BROOKLYN, NY		476,816		272,765			306,100		443,481		749,581		281,823	1985
WORCESTER, MA		547,283		205,733			355,734		397,282		753,016		195,499	1991
BRIARCLIFF MANOR, NY		652,213		103,753			501,687		254,279		755,966		231,839	1976
SALEM, NH		743,200		19,847			484,000		279,047		763,047		130,478	1985
ROCKLAND, MA		578,600		185,285			376,800		387,085		763,885		234,817	1985
RANDOLPH, MA		743,200		25,069			484,000		284,269		768,269		136,189	1985
FAIRHAVEN, MA		725,500		48,828			470,900		303,428		774,328		158,477	1985
EAST PEMBROKE, NY		787,465		0			537,465		250,000		787,465		28,333	2006
READING, PA		750,000		49,125			0		799,125		799,125		789,901	1989
WOBURN, MA		507,600		294,303			507,600		294,303		801,903		140,533	1985
BALTIMORE, MD		802,414		0			0		802,414		802,414		70,212	2007
UNION CITY, NJ		799,500		3,440			520,600		282,340		802,940		125,227	1985
WATERBURY, CT		804,040		0			516,387		287,653		804,040		52,496	2004
STOUGHTON, MA		775,300		34,554			504,900		304,954		809,854		148,890	1985
ROCHESTER, NY		823,031		0			273,031		550,000		823,031		63,358	2006
WEST ORANGE, NJ		799,500		34,733			520,600		313,633		834,233		156,456	1985
ASHLAND, VA		0		839,997			839,997		0		839,997		0	2005
SUFFIELD, CT		237,401		602,635			200,878		639,158		840,036		187,636	2004
WALKERTOWN, NC		844,749		0			488,239		356,509		844,749		39,562	2007
W.READING, PA		790,432		68,726			387,641		471,517		859,158		465,075	1989
BELLINGHAM, MA		734,189		132,725			476,200		390,714		866,914		239,279	1985
ORLANDO, FL		867,515		0			401,435		466,080		867,515		175,554	2000
JONESBORO, AR		868,501		0			173,096		695,405		868,501		31,284	2007
FALL RIVER, MA		859,800		24,423			559,900		324,323		884,223		153,018	1985
ELLICOTT CITY, MD		895,049		(0	)		0		895,049		895,049		82,439	2007
SUTTON, MA		714,159		187,355			464,203		437,311		901,514		200,066	1993
LIVINGSTON, NJ		871,800		30,003			567,700		334,103		901,803		161,144	1985
MECHANICSVILLE, VA		0		902,892			272,892		630,000		902,892		94,500	2005
BROOKLYN, NY		626,700		282,677			408,100		501,277		909,377		320,294	1985
CHESAPEAKE, VA		883,685		26,247			325,508		584,424		909,932		579,208	1990
MIDDLETOWN, NY		751,200		166,411			489,200		428,411		917,611		225,350	1985
MANSFIELD, OH		921,108		0			331,599		589,509		921,108		6,862	2008
WATERTOWN, CT		924,586		0			566,986		357,600		924,586		94,466	2004
PLYMOUTH, CT		930,885		0			605,075		325,810		930,885		54,300	2004
WASHINGTON TOWNSHIP, NJ		912,000		21,261			593,900		339,361		933,261		159,158	1985
AVOCA, NY		935,543		0			634,543		301,000		935,543		34,000	2006
NEWINGTON, CT		953,512		0			619,783		333,729		953,512		55,621	2004
OCEAN CITY, NJ		843,700		113,162			549,400		407,462		956,862		240,926	1985
MECHANICSVILLE, VA		0		957,418			324,158		633,260		957,418		134,666	2005
BYRON, NY		969,117		0			669,117		300,000		969,117		34,000	2006
ROCHESTER, NH		972,200		12,775			633,100		351,875		984,975		159,658	1985
WARSAW, NY		990,259		0			690,259		300,000		990,259		34,000	2006
DURHAM, CT		993,909		0			0		993,909		993,909		414,129	2004
CHURCHVILLE, NY		1,011,381		0			601,381		410,000		1,011,381		46,467	2006
GREIGSVILLE, NY		1,017,739		0			202,873		814,866		1,017,739		38,307	2008


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment			Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description						Land		Building and Improvements		Total		Accumulated Depreciation


COLONIA, NJ		952,200		74,451			620,100		406,551		1,026,651		216,295	1985
LAKEVILLE, NY		1,027,783		0			202,857		824,926		1,027,783		39,197	2008
CHESAPEAKE, VA		1,026,115		7,149			407,026		626,238		1,033,264		624,636	1990
GLEN ALLEN, VA		0		1,036,585			411,585		625,000		1,036,585		93,750	2005
LODI, NJ		0		1,037,440			587,823		449,617		1,037,440		151,871	1988
MIDDLETOWN, CT		1,038,592		0			675,085		363,507		1,038,592		60,583	2004
WINDSOR, CT		1,042,081		0			669,804		372,277		1,042,081		155,117	2004
MECHANICSVILLE, VA		0		1,042,870			222,870		820,000		1,042,870		123,000	2005
NEW OXFORD, PA		1,044,707		13,500			18,687		1,039,520		1,058,207		791,323	1996
HONOLULU, HI		1,070,141		0			980,680		89,460		1,070,141		12,630	2007
GLEN ALLEN, VA		0		1,077,402			322,402		755,000		1,077,402		113,250	2005
WEBSTER, MA		1,012,400		67,645			659,300		420,745		1,080,045		218,323	1985
GARDNER, MA		1,008,400		73,740			656,700		425,440		1,082,140		217,211	1985
YONKERS, NY		1,020,400		61,875			664,500		417,775		1,082,275		212,485	1985
SEEKONK, MA		1,072,700		29,112			698,500		403,312		1,101,812		187,535	1985
MECHANICSVILLE, VA		0		1,124,769			504,769		620,000		1,124,769		93,000	2005
RICHMOND, VA		0		1,131,878			546,878		585,000		1,131,878		87,750	2005
WALNUT COVE, NC		1,140,945		0			513,565		627,380		1,140,945		69,314	2007
SHRUB OAK, NY		1,060,700		81,807			690,700		451,807		1,142,507		238,435	1985
WORCESTER, MA		978,880		191,413			636,272		534,021		1,170,293		217,313	1991
CRESTLINE, OH		1,201,523		0			284,761		916,762		1,201,523		11,367	2008
WEST HAVEN, CT		1,214,831		0			789,640		425,191		1,214,831		70,867	2004
CHESAPEAKE, VA		1,184,759		32,132			604,983		611,908		1,216,891		132,131	1990
FARMVILLE, VA		0		1,226,505			621,505		605,000		1,226,505		90,750	2005
BELFIELD, ND		1,232,010		0			381,909		850,101		1,232,010		129,470	2007
BRONX, NY		543,833		693,438			473,695		763,576		1,237,271		752,658	1970
NAPLES, NY		1,257,487		0			827,487		430,000		1,257,487		48,733	2006
FREDERICKSBURG, VA		0		1,279,280			469,280		810,000		1,279,280		121,500	2005
FORT LEE, NJ		1,245,500		39,408			811,100		473,808		1,284,908		227,313	1985
FREDERICKSBURG, VA		0		1,289,425			798,444		490,981		1,289,425		94,004	2005
SPOTSYLVANIA, VA		0		1,290,239			490,239		800,000		1,290,239		120,000	2005
EL CAJON, CA		1,292,114		0			779,828		512,286		1,292,114		42,472	2007
ELLINGTON, CT		1,294,889		0			841,678		453,211		1,294,889		75,533	2004
LAKE HOPATCONG, NJ		1,305,034		0			800,000		505,034		1,305,034		303,226	2000
SAVONA, NY		1,314,135		0			964,136		349,999		1,314,135		39,667	2006
FILLMORE, CA		1,354,113		0			950,061		404,052		1,354,113		37,786	2007
KANEOHE, HI		1,363,901		0			821,691		542,210		1,363,901		52,654	2007
BELLFLOWER, CA		1,369,511		0			910,252		459,259		1,369,511		43,108	2007
WINDSOR LOCKS, CT		1,433,330		0			0		1,433,330		1,433,330		597,221	2004
VERNON, CT		1,434,223		0			0		1,434,223		1,434,223		597,592	2004
POWAY, CA		1,439,021		(0	)		0		1,439,021		1,439,021		114,467	2007
PETERSBURG, VA		0		1,441,374			816,374		625,000		1,441,374		93,750	2005
PERRY, NY		1,443,847		0			1,043,847		400,000		1,443,847		45,333	2006
BROOKLAND, AR		1,467,809		0			149,218		1,318,591		1,467,809		56,442	2007
NEW HAVEN, CT		1,412,860		56,420			898,470		570,810		1,469,280		281,917	1985
MECHANICSVILLE, VA		0		1,476,043			876,043		600,000		1,476,043		90,000	2005
BRICK, NJ		1,507,684		0			1,000,000		507,684		1,507,684		247,725	2000
WAIANAE, HI		1,520,144		0			648,273		871,871		1,520,144		72,706	2007
HALEIWA, HI		1,521,648		0			1,058,124		463,524		1,521,648		53,621	2007
MERIDEN, CT		1,531,772		0			989,165		542,607		1,531,772		92,929	2004
HONOLULU, HI		1,538,997		0			1,219,217		319,780		1,538,997		28,955	2007
HOOKSETT, NH		1,561,628		0			823,915		737,712		1,561,628		115,904	2007
BRISTOL, CT		1,594,129		0			1,036,184		557,945		1,594,129		92,992	2004
HESPERIA, CA		1,643,449		0			849,352		794,097		1,643,449		68,660	2007
MECHANICSVILLE, VA		0		1,677,065			1,157,065		520,000		1,677,065		78,000	2005
KING WILLIAM, VA		0		1,687,540			1,067,540		620,000		1,687,540		93,000	2005
HOUSTON, TX		1,688,904		0			223,664		1,465,240		1,688,904		111,373	2007
FREDERICKSBURG, VA		0		1,715,914			995,914		720,000		1,715,914		108,000	2005
HONOLULU, HI		1,768,878		0			1,192,216		576,662		1,768,878		48,078	2007
ALLENSTOWN, NH		1,787,116		0			466,994		1,320,122		1,787,116		119,762	2007
LONG ISLAND CITY, NY		1,646,307		259,443			1,071,500		834,250		1,905,750		507,752	1985


	Initial Cost of Leasehold or Acquisition Investment to Company (1)		Cost Capitalized Subsequent to Initial Investment		Gross Amount at Which Carried at Close of Period								Date of Initial Leasehold or Acquisition Investment (1)

Description					Land		Building and Improvements		Total		Accumulated Depreciation


SAN DIMAS, CA		1,941,008		0		749,066		1,191,942		1,941,008		94,544	2007
SAN MARCOS, TX		1,953,653		0		250,739		1,702,914		1,953,653		133,479	2007
LA PALMA, CA		1,971,592		0		1,389,383		582,210		1,971,592		53,595	2007
KANEOHE, HI		1,977,671		0		1,473,275		504,396		1,977,671		47,249	2007
WAIANAE, HI		1,996,811		0		870,775		1,126,036		1,996,811		94,383	2007
SOUTH WINDHAM, CT		644,141		1,397,938		598,394		1,443,685		2,042,079		86,304	2004
HARKER HEIGHTS, TX		2,051,704		0		588,320		1,463,384		2,051,704		192,815	2007
FT WORTH, TX		2,114,924		0		866,062		1,248,863		2,114,924		112,417	2007
RENSSELAER, NY		1,653,500		514,444		1,076,800		1,091,144		2,167,944		766,271	1985
BENICIA, CA		2,223,362		0		1,057,519		1,165,843		2,223,362		114,287	2007
COACHELLA, CA		2,234,957		0		1,216,646		1,018,312		2,234,957		93,082	2007
BALTIMORE, MD		2,258,897		0		721,876		1,537,022		2,258,897		125,569	2007
BEDFORD, NH		2,301,297		0		1,271,171		1,030,126		2,301,297		102,923	2007
AUSTIN, TX		2,368,425		0		738,210		1,630,215		2,368,425		130,764	2007
TEMPLE, TX		2,405,953		0		1,215,488		1,190,465		2,405,953		103,791	2007
WAIPAHU, HI		2,458,592		0		945,327		1,513,264		2,458,592		121,087	2007
MONTPELIER, VA		0		2,480,686		1,725,686		755,000		2,480,686		113,250	2005
KELLER, TX		2,506,573		0		996,029		1,510,544		2,506,573		128,732	2007
EAST PROVIDENCE, RI		2,297,435		568,241		1,495,700		1,369,976		2,865,676		666,885	1985
JONESBORO, AR		2,985,267		0		330,322		2,654,945		2,985,267		192,817	2007
NEWARK, NJ		3,086,592		164,432		2,005,800		1,245,224		3,251,024		637,621	1985
AUSTIN, TX		3,510,062		0		1,594,536		1,915,526		3,510,062		155,432	2007
FREDERICKSBURG, VA		0		3,623,228		2,828,228		795,000		3,623,228		119,250	2005
WACO, TX		3,884,407		0		894,356		2,990,051		3,884,407		262,069	2007
THE COLONY, TX		4,395,696		0		337,083		4,058,613		4,395,696		300,138	2007
HONOLULU, HI		9,210,707		0		8,193,984		1,016,724		9,210,707		87,664	2007
MISCELLANEOUS INVESTMENTS		10,879,528		12,876,458		6,453,867		17,302,118		23,755,986		15,868,528	0

	$	364,207,264	$	109,360,132	$	221,540,125	$	252,027,271	$	473,567,396	$	129,322,033


(1)	Initial cost of leasehold or acquisition investment to company represents the aggregate of the cost incurred during the year in which the company purchased the property for owned properties or purchased a leasehold interest in leased properties. Cost capitalized subsequent to initial investment also includes investments made in previously leased properties prior to their acquisition.

(2)	Depreciation of real estate is computed on the straight-line method based upon the estimated useful lives of the assets, which generally range from sixteen to twenty-five years for buildings and improvements, or the term of the lease if shorter. Leasehold interests are amortized over the remaining term of the underlying lease.

(3)	The aggregate cost for federal income tax purposes was approximately $372,183,000 at December 31, 2008.

SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.


	Getty Realty Corp.
	(Registrant)

	By:	/s/ Thomas J. Stirnweis

		Thomas J. Stirnweis,
		Vice President, Treasurer and
		Chief Financial Officer
		March 2, 2009

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Annual Report on Form 10-K has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.


By:	/s/ Leo Liebowitz	By:	/s/ Thomas J. Stirnweis

Leo Liebowitz		Thomas J. Stirnweis
Chairman, Chief Executive Officer and Director		Vice President, Treasurer and Chief Financial Officer
(Principal Executive Officer)		(Principal Financial and Accounting Officer)
March 2, 2009		March 2, 2009

By:	/s/ Milton Cooper	By:	/s/ Philip E. Coviello

Milton Cooper		Philip E. Coviello
Director		Director
March 2, 2009		March 2, 2009

By:	/s/ David Driscoll	By:	/s/ Howard Safenowitz

David Driscoll		Howard Safenowitz
Director		Director
March 2, 2009		March 2, 2009

EXHIBIT INDEX

GETTY REALTY CORP.
Annual Report on Form 10-K
for the year ended December 31, 2008


EXHIBIT NO.		DESCRIPTION

	2.1	Agreement and Plan of Reorganization and Merger, dated as of December 16, 1997 (the “Merger Agreement”) by and among Getty Realty Corp., Power Test Investors Limited Partnership and CLS General Partnership Corp.	Filed as Exhibit 2.1 to Company’s Registration Statement on Form S-4, filed on January 12, 1998 (File No. 333-44065), included as Appendix A To the Joint Proxy Statement/Prospectus that is a part thereof, and incorporated herein by reference.

	3.1	Articles of Incorporation of Getty Realty Holding Corp. (“Holdings”), now known as Getty Realty Corp., filed December 23, 1997.	Filed as Exhibit 3.1 to Company’s Registration Statement on Form S-4, filed on January 12, 1998 (File No. 333-44065), included as Appendix D to the Joint Proxy Statement/Prospectus that is a part thereof, and incorporated herein by reference.

	3.2	Articles Supplementary to Articles of Incorporation of Holdings, filed January 21, 1998.	(a)

	3.3	By-Laws of Getty Realty Corp.	(a)

	3.4	Articles of Amendment of Holdings, changing its name to Getty Realty Corp., filed January 30, 1998.	(a)

	3.5	Amendment to Articles of Incorporation of Holdings, filed August 1, 2001.	(a)

	4.1	Dividend Reinvestment/Stock Purchase Plan.	Filed under the heading “Description of Plan” on pages 4 through 17 to Company’s Registration Statement on Form S-3D, filed on April 22, 2004 (File No.333-114730) and incorporated herein by reference.

	10.1*	Retirement and Profit Sharing Plan (amended and restated as of January 1, 2002), adopted by the Company on September 3, 2002.	(a)

	10.2*	1998 Stock Option Plan, effective as of January 30, 1998.	Filed as Exhibit 10.1 to Company’s Registration Statement on Form S-4, filed on January 12, 1998 (File No. 333-44065), included as Appendix H to the Joint Proxy Statement/Prospectus that is a part thereof, and incorporated herein by reference.

	10.3**	Asset Purchase Agreement among Power Test Corp. (now known as Getty Properties Corp.), Texaco Inc., Getty Oil Company and Getty Refining and Marketing Company, dated as of December 21, 1984.	(a)

	10.4	Assignment of Trademark Registrations	Filed as Exhibit 10.4 to Company’s Annual Report on Form 10-K for the fiscal year ended January 31, 2007 (File No. 001-13777) and incorporated herein by reference.


10.5*	Form of Indemnification Agreement between the Company and its directors.	(a)

10.6*	Amended and Restated Supplemental Retirement Plan for Executives of the Getty Realty Corp. and Participating Subsidiaries (adopted by the Company on December 16, 1997 and amended and restated effective January 1, 2009).	(a)

10.7*	Letter Agreement dated June 12, 2001 by and between Getty Realty Corp. and Thomas J. Stirnweis regarding compensation upon change in control.	(a)

10.8	Form of Reorganization and Distribution Agreement between Getty Petroleum Corp. (now known as Getty Properties Corp.) and Getty Petroleum Marketing Inc. dated as of February 1, 1997.	(a)

10.9	Form of Tax Sharing Agreement between Getty Petroleum Corp (now known as Getty. Properties Corp.) and Getty Petroleum Marketing Inc.	(a)

10.10	Consolidated, Amended and Restated Master Lease Agreement dated November 2, 2000 between Getty Properties Corp. and Getty Petroleum Marketing Inc.	(a)

10.11	Environmental Indemnity Agreement dated November 2, 2000 between Getty Properties Corp. and Getty Petroleum Marketing Inc.	(a)

10.12	Amended and Restated Trademark License Agreement, dated November 2, 2000, between Getty Properties Corp. and Getty Petroleum Marketing Inc.	(a)

10.13	Trademark License Agreement, dated November 2, 2000, between Getty™ Corp. and Getty Petroleum Marketing Inc.	(a)

10.14*	2004 Getty Realty Corp. Omnibus Incentive Compensation Plan.	Filed as Appendix B to the Definitive Proxy Statement of Getty Realty Corp., filed April 9, 2004 (File No. 001-13777) and incorporated herein by reference.

10.15*	Form of restricted stock unit grant award under the 2004 Getty Realty Corp. Omnibus Incentive Compensation Plan, as amended.	(a)

10.16**	Contract for Sale and Purchase between Getty Properties Corp. and various subsidiaries of Trustreet Properties, Inc. dated as of February 6, 2007.	Filed as Exhibit 10.20 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2006 (File No. 001-13777) and incorporated herein by reference.


10.17	Senior Unsecured Credit Agreement dated as of March 27, 2007 with J. P. Morgan Securities Inc., as sole bookrunner and sole lead arranger, the lenders referred to therein, and JPMorgan Chase Bank, N.A., as administrative agent for the lenders.	Filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed April 2, 2007 (File No. 001-13777) and incorporated herein by reference.

10.18*	Severance Agreement and General Release by and between Getty Realty Corp. and Andrew M. Smith effective October 31, 2007 and dated November 13, 2007.	Filed as Exhibit 10.22 to the Company’s Current Report on Form 8-K filed November 14, 2007 (File No. 001-13777) and incorporated herein by reference.

10.19*	Amendment to the 2004 Getty Realty Corp. Omnibus Incentive Compensation Plan dated December 31, 2008.	(a)

10.20*	Amendment dated December 31, 2008 to Letter Agreement dated June 12, 2001 by and between Getty Realty Corp. and Thomas J. Stirnweis regarding compensation upon change of control. (See Exhibit 10.7).	(a)

14	The Getty Realty Corp. Business Conduct Guidelines (Code of Ethics).	Filed as Exhibit 14 to Company’s Annual Report on Form 10-K for the year ended December 31, 2003 (File No. 001-13777) and incorporated herein by reference.

21	Subsidiaries of the Company.	(a)

23	Consent of Independent Registered Public Accounting Firm.	(a)

31(i).1	Rule 13a-14(a) Certification of Chief Financial Officer.	(b)

31(i).2	Rule 13a-14(a) Certification of Chief Executive Officer.	(b)

32.1	Section 1350 Certification of Chief Executive Officer.	(b)

32.2	Section 1350 Certification of Chief Financial Officer.	(b)



(a)	Filed herewith

(b)	Furnished herewith. These certifications are being furnished solely to accompany the Report pursuant to 18 U.S.C. Section. 1350, and are not being filed for purposes of Section 18 of the Exchange Act, and are not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

*	Management contract or compensatory plan or arrangement.

**	Confidential treatment has been granted for certain portions of this Exhibit pursuant to Rule 24b-2 under the Exchange Act, which portions are omitted and filed separately with the SEC.

EXHIBIT 3.2 ARTICLES SUPPLEMENTARY TO ARTICLES OF INCORPORATION OF HOLDINGS, FILED JANUARY 21, 1998.


	STATE DEPARTMENT OF ASSESSMENTS AND TAXATION APPROVED FOR RECORD 01/21/98 AT 2:17P.M.

GETTY REALTY HOLDING CORP.

ARTICLES SUPPLEMENTARY

3,000,000 SHARES

SERIES A PARTICIPATING CONVERTIBLE REDEEMABLE PREFERRED STOCK

Getty Realty Holding Corp., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:

FIRST: Under a power contained in Section 6.3 of the charter of the Corporation (the “Charter”), the Board of Directors of the Corporation (the “Board of Directors”), by unanimous written consent dated January 9, 1998, classified and designated 3,000,000 shares (the “Shares”) of Preferred Stock (as defined in the Charter) as shares of Series A Participating Convertible Redeemable Preferred Stock, $.01 par value per share (the “Series A Preferred Stock”), with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption as set forth as follows, which upon any restatement of the Charter shall be made part of Article VI, with any necessary or appropriate changes to the enumeration or lettering of sections or subsections hereof.

SERIES A PREFERRED STOCK

Section (1) Number of Shares and Designation. 3,000,000 shares of Preferred Stock shall be designated as Series A Participating Convertible Redeemable Preferred Stock (the “Series A Preferred Stock”), subject, however, to increase or decrease upon further action of the Board of Directors in the future as permitted by the Charter and applicable law.

Section (2) Definitions. For purposes of the Series A Preferred Stock, the following terms shall have the meanings indicated:

“Affiliate” of a person means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.

“Board of Directors” shall mean the Board of Directors of the Corporation or any committee authorized by such Board of Directors to perform any of its responsibilities with respect to the Series A Preferred Stock.

“Business Day” shall mean any day other than a Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York are not required to be open.

“Call Date” shall have the meaning set forth in paragraph (b) of Section 5 hereof.

“Common Stock” shall mean the Common Stock, $.0l par value per share, of the Corporation.

“Conversion Rate” shall initially mean 1.1312, subject to adjustment pursuant to paragraph (d) of Section 7 hereof.

“Cumulative Dividends” shall mean all accumulated, accrued and unpaid dividends.

“Current Market Price” of publicly traded shares of Common Stock or any other class or series of stock or other security of the Corporation or of any similar security of any other issuer for any day shall mean the last reported sales price, regular way on such day, or, if no sale takes place on such day, the average of the reported closing, bid and asked prices regular way on such day, in either case as reported on the New York Stock Exchange (“NYSE”) or, if such security is not listed or admitted for trading on the NYSE, on the principal national securities exchange on which such security is listed or admitted for trading or, if not listed or admitted for trading on any national securities exchange, on the National Market of the National Association of Securities Dealers, Inc. Automated Quotation System (“NASDAQ”) or, if such security is not quoted on such National Market, the average of the closing bid and asked prices on such day in the over-the-counter market as reported by NASDAQ or, if bid and asked prices for such security on such day shall not have been reported through NASDAQ, the average of the bid and asked prices on such day as furnished by any NYSE member firm regularly making a market in such security selected for such purpose by the Chief Executive Officer or the Board of Directors or if any class or series of securities are not publicly traded, the fair value of the shares of such class as determined reasonably and in good faith by the Board of Directors of the Corporation.

“Distribution” shall have the meaning set forth in paragraph (d) (iii) of Section 7 hereof.

“Dividend Payment Date” shall have the meaning set forth in Section 3 hereof.

“Fair Market Value” shall mean the average of the daily Current Market Prices of a share of Common Stock during five (5) consecutive Trading Days selected by the Corporation commencing not more than twenty (20) Trading Days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation The term “ex’ date”, when used with respect to any issuance or distribution, means the first day on which the share of Common Stock trades regular way, without the right to receive such issuance or distribution, on the exchange or in the

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market, as the case may be, used to determine that day’s Current Market Price.

“Issue Date” shall mean the date that the Certificate of Merger of Power Test Investors Limited Partnership and PTI Merger L.L.C. into Power Test Investors Limited Partnership is filed with and accepted by the Department of State of the State of New York.

“Junior Stock” shall mean the Common Stock and any other class or series of stock of the Corporation designated by the Board of Directors over which the shares of Series A Preferred Stock have preference or priority in the payment of dividends or in the distribution of assets on any liquidation, dissolution or winding up of the Corporation.

“MGCL” shall mean the Maryland General Corporation Law, as amended from time to time.

“Parity Stock” shall have the meaning set forth in paragraph (a) of Section 8 hereof.

“Permitted Common Stock Cash Distributions” shall mean cash dividends or cash distributions out of current or accumulated funds from operations (as determined by the Board of Directors on a basis consistent with the policies and practices adopted by the Corporation for reporting publicly its results of operations and financial condition), and cash dividends which result in a payment of an equal cash dividend to holders of the Series A Preferred Stock and Parity Stock pursuant to clause (ii) of paragraph (a) of Section 3 hereof.

“Person” shall mean any individual, firm, partnership, corporation or other entity and shall include any successor (by merger or otherwise) of such entity.

“Series A Preferred Stock” shall have the meaning set forth in Section 1 hereof.

“set apart for payment” shall be deemed to include, without any action other than the following, the recording by the Corporation in its accounting ledgers of any accounting or bookkeeping entry which indicates, pursuant to an authorization of dividends or other distribution by the Board of Directors, the allocation of funds to be so paid on any series or class of stock of the Corporation.

“Trading Day”, as to any securities, shall mean any day on which such securities are traded on the NYSE or, if such securities are not listed or admitted for trading on the NYSE, on the principal national securities exchange on which such securities are listed or admitted or, if such securities are not listed or admitted for trading on any national securities exchange, on the National Market of NASDAQ or, if such securities are not quoted on

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such National Market, in the securities market in which such securities are traded.

“Transfer Agent” means American Stock Transfer and Trust Company or such other entity as may be designated by the Board of Directors or their designee as the transfer agent for the Series A Preferred Stock.

Section (3) Dividends.

(a) The holders of Series A Preferred Stock shall be entitled to receive, when, as and if authorized and declared by the Board of Directors out of assets legally available for that purpose, cumulative dividends in cash in an amount per share of Series A Preferred Stock equal to the greater of (i) $l.775 per annum (measured by the fiscal year of the Corporation) or (ii) the cash dividends declared on the number of shares of Common Stock, or portion thereof, into which a share of Series A Preferred Stock is convertible, during any fiscal year of the Corporation or portion thereof that the Series A Preferred Stock was outstanding, on such date as may be set by the Board of Directors (a “Dividend Payment Date”) to holders of record on such date, not more than sixty nor less than ten days preceding such Dividend Payment Date, fixed for such purpose by the Board of Directors (a “Dividend Record Date”). Such dividends shall be cumulative from the Issue Date, whether or not such dividends shall be authorized or there shall be assets of the Corporation legally available for the payment of such dividends. Each such dividend shall be payable to the holders of record of the Series A Preferred Stock, as they appear on the stock records of the Corporation at the close of business on the Dividend Record Date. The amount of Cumulative Dividends on any share of Series A Preferred Stock, or fraction thereof, at any date shall be the amount of any dividends thereon calculated at the applicable rate to and including such date, whether or not earned or authorized, which have not been paid in cash.

(b) If the Series A Preferred Stock is outstanding for less than any full fiscal year of the Corporation, the holders shall be entitled to receive the greater of the amount set forth in clause (i) or (ii) of paragraph (a) of this Section 3 multiplied by a fraction the numerator of which equals the number of days during such fiscal year that such shares of Series A Preferred Stock were outstanding and the denominator of which is 360. Holders of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of cumulative dividends, as herein provided, on the Series A Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series A Preferred Stock that may be in arrears.

(c) So long as any of the shares of Series A Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares of or options, warrants or rights to subscribe for or purchase shares of Junior Stock) shall be

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authorized or paid or set apart for payment by the Corporation or other distribution of cash or other property authorized or made directly or indirectly by the Corporation with respect to any shares of Junior Stock, nor shall any shares of Junior Stock be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of Common Stock made for purposes of an employee incentive or benefit plan of the Corporation or any subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) directly or indirectly by the Corporation (except by conversion into or exchange for Junior Stock), nor shall any other cash or other property otherwise be paid or distributed to or for the benefit of any holder of shares of Junior Stock in respect thereof, directly or indirectly, by the Corporation unless in each case (i) the full Cumulative Dividends on all outstanding shares of Series A Preferred Stock and any other Parity Stock of the Corporation shall have been paid or such dividends have been authorized and set apart for payment with respect to the Series A Preferred Stock and all past dividend periods with respect to such Parity Stock and (ii) sufficient funds shall have been paid or set apart for the payment of the full dividend for the current fiscal year of the Corporation (including any required pursuant to clause (ii) of paragraph (a) of this Section 3) with respect to the Series A Preferred Stock and the current dividend period with respect to such Parity Stock.

Section (4) Liquidation Preference.

(a) In the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, before any assets of the Corporation shall be distributed, paid or set aside for the holders of Junior Stock, the Corporation shall pay to the holders of shares of Series A Preferred Stock $25.00 per share of Series A Preferred Stock plus an amount equal to all Cumulative Dividends (whether or not earned or authorized) to the date of final distribution to such holders; but such holders shall not be entitled to any further payment. Until the holders of the Series A Preferred Stock and holders of Parity Stock have been paid this liquidation preference in full, no payment will be made to any holder of Junior Stock upon the liquidation, dissolution or winding up of the Corporation. If, upon any liquidation, dissolution or winding up of the Corporation, the assets of the Corporation, or proceeds thereof, distributable among the holders of Series A Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other shares of any class or series of Parity Stock, then such assets, or the proceeds thereof, shall be distributed among the holders of Series A Preferred Stock and any such other Parity Stock ratably in the same proportion as the respective amounts that would be payable on such Series A Preferred Stock and any such other Parity Stock if all amounts payable thereon were paid in full. For the purposes of this Section 4, (i) a consolidation or merger of the Corporation with one or more corporations, (ii) a sale or transfer of all or substantially all

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of the Corporation’s assets, or (iii) a statutory share exchange shall not be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, of the Corporation.

(b) Subject to the rights of the holders of any shares of Parity Stock, upon any liquidation, dissolution or winding up of the Corporation, after payment shall have been made in full to the holders of Series A Preferred Stock and any Parity Stock, as provided in this Section 4, any other series or class or classes of Junior Stock shall, subject to the respective terms thereof, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series A Preferred Stock and any Parity Stock shall not be entitled to share therein.

(c) In determining whether a distribution (other than upon voluntary or involuntary liquidation) by dividend, redemption or other acquisition of shares of stock of the Corporation or otherwise is permitted under the MGCL, no effect shall be given to amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of shares of stock of the Corporation whose preferential rights upon dissolution are superior to those receiving the distribution.

Section (5) Redemption at the Option of the Corporation.

(a) Shares of Series A Preferred Stock shall not be redeemable by the Corporation prior to January 31, 2001. On and after January 31, 2001, the Corporation, at its option, may redeem shares of Series A Preferred Stock as set forth herein. Shares of Series A Preferred Stock may be redeemed, in whole or in part, at the option of the Corporation at any time on or after January 31, 2001 out of assets legally available therefor at a redemption price payable in cash equal to $25.00 per share of Series A Preferred Stock (plus an amount equal to all Cumulative Dividends, if any, to the Call Date, whether or not earned or authorized, as provided below), so long as the closing price of Common Stock exceeds $22.10 for a period of ten cumulative Trading Days within 90 days prior to the date on which notice of redemption is mailed to holders of Series A Preferred Stock.

(b) Shares of Series A Preferred Stock shall be redeemed by the Corporation on the date specified in the notice to holders required under paragraph (d) of this Section 5 (the “Call Date”). The Call Date shall be selected by the Corporation, shall be specified in the notice of redemption and shall be not less than 30 days nor more than 60 days after the date notice of redemption is sent by the Corporation. Upon any redemption of shares of Series A Preferred Stock pursuant to paragraph (a) of this Section 5, the Corporation shall pay in cash to the holder of such shares an amount equal to all Cumulative Dividends, if any, to the Call Date, whether or not earned or authorized. Immediately prior to authorizing any redemption of the Series A Preferred Stock, and as

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a condition precedent for such redemption, the Company, by resolution of its Board of Directors, shall authorize a mandatory dividend on the Series A Preferred Stock payable in cash on the Call Date in an amount equal to all Cumulative Dividends as of the Call Date on the Series A Preferred Stock to be redeemed, which amount shall be added to the redemption price. If the Call Date falls after a dividend payment record date and prior to the corresponding Dividend Payment Date, then each holder of Series A Preferred Stock at the close of business on such dividend payment record date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares prior to such Dividend Payment Date. Except as provided above, the Corporation shall make no payment or allowance for accumulated or accrued dividends on shares of Series A Preferred Stock called for redemption or on the shares of Common Stock issued upon such redemption.

(c) If full Cumulative Dividends on all outstanding shares of Series A Preferred Stock and any other class or series of Parity Stock of the Corporation have not been paid or authorized and set apart for payment, no shares of Series A Preferred Stock may be redeemed unless all outstanding shares of Series A Preferred Stock and Parity Stock are simultaneously redeemed.

(d) If the Corporation shall redeem shares of Series A Preferred Stock pursuant to paragraph (a) of this Section 5, notice of such redemption shall be given to each holder of record of the shares to be redeemed. Such notice shall be provided by first class mail, postage prepaid, at such holder’s address as the same appears on the stock records of the Corporation not less than 30 days nor more than 60 days prior to the Call Date. If the Corporation elects to provide such notice by publication, it shall also promptly mail notice of such redemption to the holders of the shares of Series A Preferred Stock to be redeemed. Neither the failure to mail any notice required by this paragraph (d), nor any defect therein or in the mailing thereof, to any particular holder, shall affect the sufficiency of the notice or the validity of the proceedings for redemption with respect to the other holders. Any notice which was mailed in the manner herein provided shall be conclusively presumed to have been duly given on the date mailed whether or not the holder receives the notice. Each such mailed or published notice shall state, as appropriate: (1) the Call Date; (2) the number of shares of Series A Preferred Stock to be redeemed and, if fewer than all such shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the place or places at which certificates for such shares are to be surrendered for certificates representing shares of Common Stock; (4) the then-current Conversion Rate; and (5) that dividends on the shares of Series A Preferred Stock to be redeemed shall cease to accrue on such Call Date except as otherwise provided herein. Notice having been published or mailed as aforesaid, from and after the Call Date (unless the Corporation shall fail to issue and make available the amount of cash necessary to effect such redemption, including all Cumulative Dividends to

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the Call Date, whether or not earned or authorized), (i) except as otherwise provided herein, dividends on the shares of Series A Preferred Stock so called for redemption shall cease to accumulate or accrue on the shares of Series A Preferred Stock called for redemption (except that, in the case of a Call Date after a dividend record date and prior to the related Dividend Payment Date, holders of Series A Preferred Stock on the dividend record date will be entitled on such Dividend Payment Date to receive the dividend payable on such shares), (ii) said shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Series A Preferred Stock of the Corporation shall cease (except the rights to receive the cash payable upon such redemption, without interest thereon, upon surrender and endorsement of their certificates if so required and to receive any dividends payable thereon). The Corporation’s obligation to provide cash in accordance with the preceding sentence shall be deemed fulfilled if, on or before the Call Date, the Corporation shall deposit with a bank or trust company (which may be an affiliate of the Corporation) that has an office in the Borough of Manhattan, The City of New York, and that has, or is an affiliate of a bank or trust company that has, a capital and surplus of at least $50,000,000, such amount of cash as is necessary for such redemption, in trust, with irrevocable instructions that such cash be applied to the redemption of the shares of Series A Preferred Stock so called for redemption. No interest shall accrue for the benefit of the holders of shares of Series A Preferred Stock to be redeemed on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of two years from the Call Date shall revert to the general funds of the Corporation, after which reversion the holders of shares of Series A Preferred Stock so called for redemption shall look only to the general funds of the Corporation for the payment of such cash.

As promptly as practicable after the surrender in accordance with said notice of the certificates for any such shares so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and if the notice shall so state), such certificates shall be exchanged for cash (without interest thereon) for which such shares have been redeemed in accordance with such notice. If fewer than all the outstanding shares of Series A Preferred Stock are to be redeemed, shares to be redeemed shall be selected by the Corporation from outstanding shares of Series A Preferred Stock not previously called for redemption by lot or by any other method as may be determined by the Board of Directors in its discretion to be equitable. If fewer than all the shares of Series A Preferred Stock represented by any certificate are redeemed, then a new certificate representing the unredeemed shares shall be issued without cost to the holders thereof.

Section (6) Status of Shares. All shares of Series A Preferred Stock which shall have been issued and redeemed, converted or reacquired in any manner by the Corporation shall be restored to the status of authorized, but unissued shares of Preferred Stock, without designation as to series.

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Section (7) Conversion. Holders of shares of Series A Preferred Stock shall have the right to convert all or a portion of such shares into shares of Common Stock, as follows:

(a) Subject to and upon compliance with the provisions of this Section 7, a holder of shares of Series A Preferred Stock shall have the right, at such holder’s option, at any time to convert such shares, in whole or in part, into the number of fully paid and nonassessable shares of authorized but previously unissued shares of Common Stock obtained by multiplying the number of shares of Series A Preferred Stock to be converted and the Conversion Rate (as in effect at the time and on the date provided for in the last clause of paragraph (b) of this Section 7) by surrendering such shares to be converted, such surrender to be made in the manner provided in paragraph (b) of this Section 7; provided, however, that the right to convert shares of Series A Preferred Stock called for redemption pursuant to Section 5 shall terminate at the close of business on the Call Date fixed for such redemption, unless the Corporation shall default in making payment upon such redemption under Section 5 hereof.

(b) In order to exercise the conversion right, the holder of each share of Series A Preferred Stock to be converted shall surrender the certificate representing such share, duly endorsed or assigned to the Corporation or in blank, at the office of the Transfer Agent, accompanied by written notice to the Corporation that the holder thereof elects to convert such share of Series A Preferred Stock. Unless the shares issuable on conversion are to be issued in the same name as the name in which such share of Series A Preferred Stock is registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder or such holder’s duly authorized attorney and an amount sufficient to pay any transfer or similar tax (or evidence reasonably satisfactory to the Corporation demonstrating that such taxes have been paid).

Holders of shares of Series A Preferred Stock at the close of business on a dividend payment record date shall be entitled to receive the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the conversion thereof following such dividend payment record date and prior to such Dividend Payment Date. However, shares of Series A Preferred Stock surrendered for conversion during the period between the close of business on any dividend payment record date and the opening of business on the corresponding Dividend Payment Date (except shares converted after the issuance of notice of redemption with respect to a Call Date during such period, such shares of Series A Preferred Stock being entitled to such dividend on the Dividend Payment Date) must be accompanied by payment of an amount equal to the dividend payable on such shares on such Dividend Payment Date. A holder of shares of Series A Preferred Stock on a dividend payment record date who (or whose transferee) tenders any such shares for conversion into shares of Common Stock on such

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Dividend Payment Date will receive the dividend payable by the Corporation on such shares of Series A Preferred Stock on such date, and the converting holder need not include payment of the amount of such dividend upon surrender of shares of Series A Preferred Stock for conversion. Except as provided above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on converted shares or for dividends on the shares of Common Stock issued upon such conversion.

As promptly as practicable after the surrender of certificates for shares of Series A Preferred Stock as aforesaid, the Corporation shall issue and shall deliver at such office to such holder, or send on such holder’s written order, a certificate or certificates for the number of full shares of Common Stock issuable upon the conversion of such shares of Series A Preferred Stock in accordance with provisions of this Section 7, and any fractional share of Common Stock arising upon such conversion shall be settled as provided in paragraph (c) of this Section 7.

Each conversion shall be deemed to have been effected immediately prior to the close of business on the date on which the certificates for shares of Series A Preferred Stock shall have been surrendered and such notice received by the Corporation as aforesaid, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby at such time on such date and such conversion shall be at the Conversion Rate in effect at such time on such date unless the stock transfer books of the Corporation shall be closed on that date, in which event such person or persons shall be deemed to have become such holder or holders of record at the close of business on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date on which such shares shall have been surrendered and such notice received by the Corporation.

(c) No fractional share of Common Stock or scrip representing fractions of a share of Common Stock shall be issued upon conversion of the shares of Series A Preferred Stock. Instead of any fractional interest in a share of Common Stock that would otherwise be deliverable upon the conversion of shares of Series A Preferred Stock, the Corporation shall pay to the holder of such share an amount in cash based upon the Current Market Price of the Common Stock on the Trading Day immediately preceding the date of conversion. If more than one share shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series A Preferred Stock so surrendered.

(d) The Conversion Rate shall be adjusted from time to time as follows:

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	(i) If the Corporation shall after the Issue Date (A) pay a dividend or make a distribution on its shares of Common Stock in shares of Common Stock, (B) subdivide its outstanding Common Stock into a greater number of shares, (C) combine its outstanding Common Stock into a smaller number of shares or (D) issue any shares of stock by reclassification of its Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or distribution or at the opening of business on the day following the day on which such subdivision, combination or reclassification becomes effective, as the case may be, shall be adjusted so that the holder of any share of Series A Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock (or fraction of a share of Common Stock) that such holder would have owned or have been entitled to receive after the happening of any of the events described above had such share of Series A Preferred Stock been converted immediately prior to the record date in the case of a dividend or distribution or the effective date in the case of a subdivision, combination or reclassification. An adjustment made pursuant to this paragraph (d) (i) of this Section 7 shall become effective immediately after the opening of business on the day next following the record date (except as provided in paragraph (h) below) in the case of a dividend or distribution and shall become effective immediately after the opening of business on the day next following the effective date in the case of a subdivision, combination or reclassification.

	(ii) If the Corporation shall issue after the Issue Date rights, options or warrants to all holders of Common Stock entitling them (for a period expiring within 45 days after the record date described below in this paragraph (d) (ii) of this Section 7) to subscribe for or purchase Common Stock at a price per share less than the Fair Market Value per share of the Common Stock on the record date for the determination of stockholders entitled to receive such rights or warrants, then the Conversion Rate in effect at the opening of business on the day next following such record date shall be adjusted to equal the rate determined by multiplying (A) the Conversion Rate in effect immediately prior to the opening of business on the day following the date fixed for such determination by (B) a fraction, the numerator of which shall be the sum of (X) the number of shares of Common Stock outstanding on the close of business on the date fixed for such determination and (Y) the number of additional shares of Common Stock offered for subscription or purchase pursuant to such rights or warrants, and the denominator of which shall be the sum

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	of (XX) the number of shares of Common Stock outstanding on the close of business on the date fixed for such determination and (YY) the number of shares that the aggregate proceeds to the Corporation from the exercise of such rights or warrants for Common Stock would purchase at such Fair Market Value. Such adjustment shall become effective immediately after the opening of business on the day next following such record date (except as provided in paragraph (h) below). In determining whether any rights or warrants entitle the holders of Common Stock to subscribe for or purchase Common Stock at less than such Fair Market Value, there shall be taken into account any consideration received by the Corporation upon issuance and upon exercise of such rights or warrants, the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors.

	(iii) If the Corporation shall distribute to all holders of its Common Stock any shares of stock of the Corporation (other than Common Stock) or evidence of its indebtedness or assets (including cash, but excluding Permitted Common Stock Cash Distributions) or rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants issued to all holders of Common Stock entitling them for a period expiring within 45 days after the record date referred to in paragraph (d) (ii) of this Section 7 above to subscribe for or purchase Common Stock, which rights and warrants are referred to in and treated under such paragraph (d) (ii) above) (any of the foregoing being hereinafter in this paragraph (d) (iii) called the “Distribution”), then in each such case the Conversion Rate shall be adjusted so that it shall equal the rate determined by multiplying (A) the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such Distribution by (B) a fraction, the numerator of which shall be the Fair Market Value per share of Common Stock on the record date mentioned below, and the denominator of which shall be the Fair Market Value per share of Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board resolution), of the portion of the stock or assets or evidences of indebtedness so distributed or of such rights or warrants applicable to one share of Common Stock. Such adjustment shall become effective immediately at the opening of business on the Business Day next following (except as provided in paragraph (h) below) the record date for the determination of stockholders entitled to receive such Distribution. For the purposes of this paragraph (d) (iii), the distribution of a right or warrant to

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	subscribe or purchase any of the Corporation’s securities, which is distributed not only to the holders of the Common Stock on the date fixed for the determination of stockholders entitled to such Distribution of such right or warrant, but also is distributed with shares of Common Stock delivered to a Person converting shares of Series A Preferred Stock after such determination date, shall not require an adjustment of the Conversion Rate pursuant to this paragraph (d) (iii); provided that if on the date, if any, on which a person converting shares of Series A Preferred Stock such person would no longer be entitled to receive such right or warrant with shares of Common Stock (other than as a result of the termination of all such right or warrant), a distribution of such rights or warrants shall be deemed to have occurred and the Conversion Rate shall be adjusted as provided in this paragraph (d) (iii) and such day shall be deemed to be “the date fixed for the determination of the stockholders entitled to receive such distribution” and “the record date” within the meaning of the two preceding sentences.

	(iv) No adjustment in the Conversion Rate shall be required unless such adjustment would require a cumulative increase or decrease of at least 1% in such rate; provided, however, that any adjustments that by reason of this paragraph (d) (iv) are not required to be made shall be carried forward and taken into account in any subsequent adjustment until made; and provided, further, that any adjustment shall be required and made in accordance with the provisions of this Section 7 (other than this paragraph (d) (iv)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of shares of Common Stock. Notwithstanding any other provisions of this Section 7, the Corporation shall not be required to make any adjustment of the Conversion Rate for the issuance of any shares of Common Stock pursuant to any plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and the investment of additional optional amounts in shares of Common Stock under such plan. All calculations under this Section 7 shall be made to the nearest cent (with $.005 being rounded upward) or to the nearest one-tenth of a share (with .05 of a share being rounded upward), as the case may be. Anything in this paragraph (d) of this Section 7 to the contrary notwithstanding, the Corporation shall be entitled, to the extent permitted by law, to make such reductions in the Conversion Rate, in addition to those required by this paragraph (d), as it in its discretion shall determine to be advisable in order that any stock dividends, subdivision of shares, reclassification or combination of shares, distribution of rights or warrants to purchase stock or securities, or

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	a distribution of other assets (other than cash dividends) hereafter made by the Corporation to its stockholders shall not be taxable, or if that is not possible, to diminish any taxes that are otherwise payable because of such event.

	(e) If:

	(i) the Corporation shall authorize a dividend (or any other distribution) on the Common Stock (other than cash dividends and cash distributions to the extent the same constitute Permitted Common Stock Cash Distributions); or

	(ii) the Corporation shall authorize the granting to the holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of any class or series of stock or any other rights or warrants; or

	(iii) there shall be any reclassification of the Common Stock or any consolidation or merger to which the Corporation is a party and for which approval of any stockholders of the Corporation is required, or a statutory share exchange, or an issuer or self tender offer by the Corporation for all or a substantial portion of its outstanding shares of Common Stock (or an amendment thereto changing the maximum number of shares sought or the amount or type of consideration being offered therefor) or the sale or transfer of all or substantially all of the assets of the Corporation as an entirety; or

	(iv) there shall occur the voluntary or involuntary liquidation, dissolution or winding up of the Corporation,

then the Corporation shall cause to be filed with the Transfer Agent and shall cause to be mailed to each holder of shares of Series A Preferred Stock at such holder’s address as shown on the stock records of the Corporation, as promptly as possible, but at least 15 days prior to the applicable date hereinafter specified, a notice stating (A) the record date for the payment of such dividend, distribution or rights or warrants, or, if a record date is not established, the date as of which the holders of Common Stock of record to be entitled to such dividend; distribution or rights or warrants are to be determined or (B) the date on which such reclassification, consolidation, merger, statutory share exchange, sale, transfer, liquidation, dissolution or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property, if any, deliverable upon such reclassification, consolidation, merger, statutory share exchange, sale, transfer,

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liquidation, dissolution or winding up or (C) the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of any amendment thereto). Failure to give or receive such notice or any defect therein shall not affect the legality or validity of the proceedings described in this Section 7.

(f) Whenever the Conversion Rate is adjusted as herein provided, the Corporation shall promptly file with the Transfer Agent an officer’s certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error. Promptly after delivery of such certificate, the Corporation shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date such adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to each holder of shares of Series A Preferred Stock at such holder’s last address as shown on the stock records of the Corporation.

(g) In any case in which paragraph (d) of this Section 7 provides that an adjustment shall become effective on the day next following the record date for an event, the Corporation may defer until the occurrence of such event (A) issuing to the holder of any share of Series A Preferred Stock converted after such record date and before the occurrence of such event the additional Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (b) paying to such holder any amount of cash in lieu of any fraction pursuant to paragraph (c) of this Section 7.

(h) There shall be no adjustment of the Conversion Rate in case of the issuance of any stock of the Corporation in a reorganization, acquisition or other similar transaction except as specifically set forth in this Section 7. If any action or transaction would require adjustment of the Conversion Rate pursuant to more than one paragraph of this Section 7, only one adjustment shall be made and such adjustment shall be the amount of adjustment that has the highest absolute value.

(i) If the Corporation shall take any action affecting the Common Stock, other than action described in this Section 7, that in the opinion of the Board of Directors would materially adversely affect the conversion rights of the holders of Series A Preferred Stock, the Conversion Rate for the Series A Preferred Stock may be adjusted, to the extent permitted by law, in such manner, if any, and at such time as the Board of Directors, in its sole discretion, may determine to be equitable under the circumstances.

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(j) The Corporation will pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock or other securities or property on conversion or redemption of shares of Series A Preferred Stock pursuant hereto; provided, however, that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock or other securities or property in a name other than that of the holder of the shares of Series A Preferred Stock to be converted or redeemed, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or established, to the reasonable satisfaction of the Corporation, that such tax has been paid.

Section (8) Ranking. So long as any shares of Series A Preferred stock are outstanding, the Corporation shall not issue any class or series of stock which would entitle the holders thereof to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of Series A Preferred Stock. Any class or series of stock of the Corporation shall be deemed to rank:

(a) on a parity with the Series A Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share thereof be different from those of the Series A Preferred Stock, if the holders of such class of stock or series and the Series A Preferred Stock shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution or winding up in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or priority one over the other (“Parity Stock”); and

(b) junior to the Series A Preferred Stock, as to the payment of dividends or as to the distribution of assets upon liquidation, dissolution or winding up, if such stock or series shall be Common Stock or if the holders of Series A Preferred Stock shall be entitled to receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of shares of such class or series (“Junior Stock”)

Section (9) Voting Rights.

(a) The holders of Series A Preferred Stock shall be entitled to vote together with the holders of Common Stock on any matter upon which the holders of Common Stock are entitled to vote. For the purposes of this paragraph, each share of Series A Preferred Stock shall have one vote per share multiplied by the Conversion Rate in effect at the time of the vote.

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(b) So long as any shares of Series A Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by the Charter of the Corporation or required by the MGCL, the affirmative vote of at least two-thirds of the votes entitled to be cast by the holders of the Series A Preferred Stock given in person or by proxy, at any meeting, called for the purpose, or the affirmative vote of all such holders delivered by unanimous written consent, shall be necessary for effecting or validating any amendment, alteration or repeal of any of the provisions of the Charter of the Corporation (including the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of the Series A Preferred Stock) that materially adversely affects the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of the holders of the Series A Preferred Stock; provided, however, that the amendment of the provisions of the Charter so as to authorize or create, or to increase the authorized amount of, any Parity Stock or Junior Stock shall not be deemed to materially adversely affect the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of the holders of Series A Preferred Stock, and provided further, that if any such amendment, alteration or repeal would materially adversely affect any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of the Series A Preferred Stock that are not enjoyed by some or all of the Series A Preferred Stock or other series which otherwise would be entitled to vote in accordance herewith, the affirmative vote of at least a majority of the votes entitled to be cast by the holders of all series similarly affected given in person or by proxy at a meeting duly called for the purpose, or the affirmative vote of all such holders delivered by unanimous written consent, shall be required in lieu of the affirmative vote of at least two-thirds of the votes entitled to be cast by the holders of the shares of Series A Preferred Stock, or the affirmative vote of all such holders by unanimous written consent, which otherwise would be entitled to vote in accordance herewith.

For purposes of the foregoing provisions of this paragraph (b), each share of Series A Preferred Stock shall have one vote per share, except that when any other series of preferred stock shall have the right to vote with the Series A Preferred Stock as a single class on any matter, then the Series A Preferred Stock and such other series shall have with respect to such matters one vote per $25.00 of stated liquidation preference, and fractional votes shall be ignored.

(c) Nothing contained in paragraph (b) of this Section 9 shall require a vote of the holders of the Series A Preferred Stock (i) in connection with any merger or consolidation

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in which the Corporation is the surviving entity if, immediately after the merger or consolidation, there are outstanding no shares and no securities convertible into shares of any class ranking as to distribution rights or liquidation preference senior to the Series A Preferred Stock or (ii) in connection with any merger or consolidation in which the Corporation is not the surviving entity if, as result of the merger or consolidation, the holders of Series A Preferred Stock receive shares of stock or beneficial interest or other equity securities with preferences, rights and privileges not materially inferior to the preferences, rights and privileges of the Series A Preferred Stock.

Section (10) Severability of Provisions. If any preference, conversion or other right, voting power, restriction, limitation as to dividends or other distributions, qualification or term or condition of redemption of the Series A Preferred Stock set forth herein is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Stock set forth herein which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect, and no preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Series A Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein.

SECOND: The Shares have been classified and designated by the Board of Directors under the authority contained in the Charter.

THIRD: These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.

FOURTH: The undersigned President of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

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IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its name and on its behalf by its President and attested to by its Secretary on this 20th day of January, 1998.


ATTEST:	GETTY REALTY HOLDING CORP.


/S/ Randi Young Filip	By:	/s/ Leo Liebowitz

Randi Young Filip		Leo Liebowitz
Secretary		President

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EXHIBIT 3.3 BY-LAWS OF GETTY REALTY CORP.

BYLAWS

GETTY REALTY CORP.


	Adopted January 9, 1998
	Amended February 28, 2002

SELECTED TABLE OF CONTENTS


Article I - Offices	1

Article II - Meetings of Stockholders	1

Section 10 - Voting of Stock by Certain Holders (Control Share Acquisition Statute Opt-out)	3

Section 12 - Nominations and Proposals by Stockholders (Advance Notice Provisions)	4

Article III - Directors	7

Article IV - Committees	10

Article V - Officers	11

Article VI - Contracts, Loans, Checks and Deposits	14

Article VII - Stock	14

Article VIII - Accounting Year; Appointment of Auditors	17

Article IX - Distributions	17

Article X - Investment Policy	18

Article XI - Seal	18

Article XII - Indemnification and Advance of Expenses	18

Article XIII - Waiver of Notice	19

Article XIV - Amendment of Bylaws	19

GETTY REALTY CORP.

BYLAWS

ARTICLE I

OFFICES

Section 1. PRINCIPAL OFFICE. The principal office of the Corporation shall be located at such place or places as the Board of Directors may designate.

Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices at such places as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. PLACE. All meetings of stockholders shall be held at the principal office of the Corporation or at such other place within the United States as shall be stated in the notice of the meeting.

Section 2. ANNUAL MEETING. An annual meeting of the stockholders for the election of directors and the transaction of any business within the powers of the Corporation shall be held on a date and at the time set by the Board of Directors during the month of May in each year.

Section 3. SPECIAL MEETINGS. The president, the chairman of the board, chief executive officer or Board of Directors may call special meetings of the stockholders. Special meetings of stockholders shall also be called by the secretary of the Corporation upon the written request of the holders of shares entitled to cast not less than a majority of all the votes entitled to be cast at such meeting. Such request shall state the purpose of such meeting and the matters proposed to be acted on at such meeting. The secretary shall inform such stockholders of the reasonably estimated cost of preparing and mailing notice of the meeting and, upon payment to the Corporation by such stockholders of such costs, the secretary shall give notice to each stockholder entitled to notice of the meeting.

Section 4. NOTICE. Not less than ten nor more than 90 days before each meeting of stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and to each stockholder not entitled to vote who is entitled to notice of the meeting written or printed notice stating the time and place of the meeting and, in the case of a special meeting or as otherwise may be required by any statute, the purpose for which the meeting is called, either by mail or by presenting it to such stockholder personally or by leaving it at his residence or usual place of business. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the stockholder at his post office address as it appears on the records of the Corporation, with postage thereon prepaid.

Section 5. SCOPE OF NOTICE. Any business of the Corporation may be transacted at an annual meeting of stockholders without being specifically designated in the notice, except such business as is required by any statute to be stated in such notice. No business shall be transacted at a special meeting of stockholders except as specifically designated in the notice.

Section 6. ORGANIZATION. At every meeting of stockholders, the chairman of the board, if there be one, shall conduct the meeting or, in the case of vacancy in office or absence of the chairman of the board, one of the following officers present shall conduct the meeting in the order stated: the vice chairman of the board, if there be one, the president, the vice presidents in their order of rank and seniority, or a chairman chosen by the stockholders entitled to cast a majority of the votes which all stockholders present in person or by proxy are entitled to cast, shall act as chairman of the meeting. The secretary, or, in his absence, an assistant secretary, or in the absence of both the secretary and assistant secretaries, a person appointed by the chairman shall act as secretary of the meeting. The order of business and all other matters of procedure at every meeting of the stockholders shall be determined by the chairman of the meeting. The chairman of any meeting of stockholders may prescribe such rules, regulations and procedures and take such action as, in the discretion of such chairman, are appropriate for the proper conduct of the meeting, including (a) maintaining order and security at the meeting; (b) limiting attendance or participation at the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting may determine; (c) restricting admission to the meeting after the time fixed for the commencement thereof; and (d) limiting the time allotted to questions or comments by

participants. Unless otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

Section 7. QUORUM. At any meeting of stockholders, the presence in person or by proxy of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting shall constitute a quorum; but this section shall not affect any requirement under any statute or the charter of the Corporation for the vote necessary for the adoption of any measure. If, however, such quorum shall not be present at any meeting of the stockholders, the stockholders entitled to vote at such meeting, present in person or by proxy, shall have the power to adjourn the meeting from time to time to a date not more than 120 days after the original record date without notice other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.

Section 8. VOTING. A plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to elect a director. Each share may be voted for as many individuals as there are directors to be elected and for whose election the share is entitled to be voted. A majority of the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to approve any other matter which may properly come before the meeting, unless more than a majority of the votes cast is required by statute or by the charter of the Corporation. Unless otherwise provided in the charter, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders.

Section 9. PROXIES. A stockholder may cast the votes entitled to be cast by the shares of the stock owned of record by him either in person or by proxy executed in writing by the stockholder or by his duly authorized agent. Such proxy shall be filed with the secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.

Section 10. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by the president or a vice president, a general partner or trustee thereof, as the case may be, or a proxy appointed by any of the foregoing

individuals, unless some other person who has been appointed to vote such stock pursuant to a bylaw or a resolution of the governing body of such corporation or other entity or agreement of the partners of a partnership presents a certified copy of such bylaw, resolution or agreement, in which case such person may vote such stock. Any director or other fiduciary may vote stock registered in his name as such fiduciary, either in person or by proxy.

Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding shares at any given time.

The Board of Directors may adopt by resolution a procedure by which a stockholder may certify in writing to the Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other than the stockholder. The resolution shall set forth the class of stockholders who may make the certification, the purpose for which the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect to a record date or closing of the stock transfer books, the time after the record date or closing of the stock transfer books within which the certification must be received by the Corporation; and any other provisions with respect to the procedure which the Board of Directors considers necessary or desirable. On receipt of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, the stockholder of record of the specified stock in place of the stockholder who makes the certification.

Notwithstanding any other provision of the charter of the Corporation or these Bylaws, Sections 3-701 through 3-709 of the Maryland General Corporation Law (the “MGCL”) (or any successor statute) shall not apply to any acquisition by any person of shares of stock of the Corporation. This section may be repealed in the manner set forth in Article XIV of these Bylaws, in whole or in part, at any time, whether before or after an acquisition of control shares (as defined in Section 3-701 of the MGCL) and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.

Section 11. INSPECTORS. At any meeting of stockholders, the chairman of the meeting may appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares represented at the meeting based upon their determination of the validity and effect of proxies, count all votes, report the results and perform such other acts as are proper to conduct the election and voting with impartiality and fairness to all the stockholders.

Each report of an inspector shall be in writing and signed by such inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof.

Section 12. NOMINATIONS AND PROPOSALS BY STOCKHOLDERS

(a) Annual Meetings of Stockholders. (1) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (i) pursuant to the Corporation’s notice of meeting, (ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the Corporation who was a stockholder of record both at the time of giving of notice provided for in this Section 12(a) and at the time of the annual meeting, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 12(a).

(2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 12, the stockholder must have given timely notice thereof in writing to the secretary of the Corporation and such other business must otherwise be a proper matter for action by stockholders. To be timely, a stockholder’s notice shall be delivered to the secretary at the principal executive offices of the Corporation not later than the close of business on the 60th day nor earlier than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary date or if the Corporation has not previously held an annual meeting, notice by the stockholder to be timely must be so delivered not earlier than the close of business on

the 90th day prior to such annual meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of a postponement or adjournment of an annual meeting to a later date commence a new time period for the giving of a stockholder’s notice as described above. Such stockholder’s notice shall set forth (i) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (ii) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and of the beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (x) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner and (y) the number of shares of each class of stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner.

(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 12 to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least 70 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 12(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been

brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected (i) pursuant to the Corporation’s notice of meeting, (ii) by or at the direction of the Board of Directors or (iii) provided that the Board of Directors has determined that directors shall be elected at such special meeting, by any stockholder of the Corporation who is a stockholder of record both at the time of giving of notice provided for in this Section 12(b) and at the time of the special meeting, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 12(b). In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be) for election to such position as specified in the Corporation’s notice of meeting, if the stockholder’s notice containing the information required by paragraph (a)(2) of this Section 12 shall be delivered to the secretary at the principal executive offices of the Corporation not earlier than the close of business on the 90th day prior to such special meeting and not later than the close of business on the later of the 60th day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of a postponement or adjournment of a special meeting to a later date commence a new time period for the giving of a stockholder’s notice as described above.

(c) General. (1) Only such persons who are nominated in accordance with the procedures set forth in this Section 12 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 12. The chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 12 and, if any proposed nomination or business is not in compliance with this Section 12, to declare that such nomination or proposal shall be disregarded.

(2) For purposes of this Section 12, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

(3) Notwithstanding the foregoing provisions of this Section 12, a stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 12. Nothing in this Section 12 shall be deemed to affect any rights of stockholders to request inclusion of proposals in, or the rights of the Corporation to omit proposals from, the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

Section 13. VOTING BY BALLOT. Voting on any question or in any election may be viva voce unless the presiding officer shall order or any stockholder shall demand that voting be by ballot.

ARTICLE III

DIRECTORS

Section 1. GENERAL POWERS. The business and affairs of the Corporation shall be managed under the direction of its Board of Directors.

Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any special meeting called for that purpose, a majority of the entire Board of Directors may establish, increase or decrease the number of directors, provided that the number thereof

shall never be less than the minimum number required by the Maryland General Corporation Law, nor more than 15, and further provided that the tenure of office of a director shall not be affected by any decrease in the number of directors.

Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of Directors shall be held immediately after and at the same place as the annual meeting of stockholders, no notice other than this Bylaw being necessary. The Board of Directors may provide, by resolution, the time and place, either within or without the State of Maryland, for the holding of regular meetings of the Board of Directors without other notice than such resolution.

Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by or at the request of the chairman of the board, president or by a majority of the directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix any place, either within or without the State of Maryland, as the place for holding any special meeting of the Board of Directors called by them.

Section 5. NOTICE. Notice of any special meeting of the Board of Directors shall be delivered personally or by telephone, facsimile transmission, United States mail or courier to each director at his business or residence address. Notice by personal delivery, by telephone or a facsimile transmission shall be given at least two days prior to the meeting. Notice by mail shall be given at least five days prior to the meeting and shall be deemed to be given when deposited in the United States mail properly addressed, with postage thereon prepaid. Telephone notice shall be deemed to be given when the director is personally given such notice in a telephone call to which he is a party. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Corporation by the director and receipt of a completed answer-back indicating receipt. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the Board of Directors need be stated in the notice, unless specifically required by statute or these Bylaws.

Section 6. QUORUM. A majority of the directors shall constitute a quorum for transaction of business at any meeting of the Board of Directors, provided that, if less than a majority of such directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further

notice.

The directors present at a meeting which has been duly called and convened may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum.

Section 7. VOTING. The action of the majority of the directors present at a meeting at which a quorum is present shall be the action of the Board of Directors, unless the concurrence of a greater proportion is required for such action by applicable statute or by the charter of the Corporation.

Section 8. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a conference telephone or similar communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.

Section 9. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed by each director and such written consent is filed with the minutes of proceedings of the Board of Directors.

Section 10. VACANCIES. If for any reason any or all the directors cease to be directors, such event shall not terminate the Corporation or affect these Bylaws or the powers of the remaining directors hereunder (even if fewer than three directors remain). Any vacancy on the Board of Directors for any cause other than an increase in the number of directors shall be filled by a majority of the remaining directors, although such majority is less than a quorum. Any vacancy in the number of directors created by an increase in the number of directors may be filled by a majority vote of the entire Board of Directors. Any individual so elected as director shall hold office until the next annual meeting of stockholders and until his successor is elected and qualifies.

Section 11. COMPENSATION. Directors shall not receive any stated salary for their services as directors but, by resolution of the Board of Directors, may receive fixed sums per year and/or per meeting of the Board of Directors or any committees thereof and/or per visit to real property or other facilities owned or leased by the Corporation and for any service or activity they performed or engaged in as directors. Directors may be reimbursed for expenses of

attendance, if any, at each annual, regular or special meeting of the Board of Directors or of any committee thereof and for their expenses, if any, in connection with each property visit and any other service or activity they performed or engaged in as directors; but nothing herein contained shall be construed to preclude any directors from serving the Corporation in any other capacity and receiving compensation therefor.

Section 12. LOSS OF DEPOSITS. No director shall be liable for any loss which may occur by reason of the failure of the bank, trust company, savings and loan association, or other institution with whom moneys or stock have been deposited.

Section 13. SURETY BONDS. Unless required by law, no director shall be obligated to give any bond or surety or other security for the performance of any of his duties.

Section 14. RELIANCE. Each director, officer, employee and agent of the Corporation shall, in the performance of his duties with respect to the Corporation, be fully justified and protected with regard to any act or failure to act in reliance in good faith upon the books of account or other records of the Corporation, upon an opinion of counsel or upon reports made to the Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other experts or consultants selected by the Board of Directors or officers of the Corporation, regardless of whether such counsel or expert may also be a director.

Section 15. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The directors shall have no responsibility to devote their full time to the affairs of the Corporation. Any director or officer of the Corporation, in his personal capacity or in a capacity as an affiliate, employee, or agent of any other person, or otherwise, may have business interests and engage in business activities similar to or in addition to or in competition with those of or relating to the Corporation.

ARTICLE IV

COMMITTEES

Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint from among its members an Audit Committee, a Nominating Committee and a Compensation and Benefits Committee and other committees, composed of one or more directors, to serve at the

pleasure of the Board of Directors.

Section 2. POWERS. The Board of Directors may delegate to committees appointed under Section 1 of this Article any of the powers of the Board of Directors, except as prohibited by law.

Section 3. MEETINGS. Notice of committee meetings shall be given in the same manner as notice for special meetings of the Board of Directors. A majority of the members of the committee shall constitute a quorum for the transaction of business at any meeting of the committee. The act of a majority of the committee members present at a meeting shall be the act of such committee. The Board of Directors may designate a chairman of any committee, and such chairman or any two members of any committee may fix the time and place of its meeting unless the Board shall otherwise provide. In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint another director to act in the place of such absent member. Each committee shall keep minutes of its proceedings.

Section 4. TELEPHONE MEETINGS. Members of a committee of the Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.

Section 5. INFORMAL ACTION BY COMMITTEES. Any action required or permitted to be taken at any meeting of a committee of the Board of Directors may be taken without a meeting, if a consent in writing to such action is signed by each member of the committee and such written consent is filed with the minutes of proceedings of such committee.

Section 6. VACANCIES. Subject to the provisions hereof, the Board of Directors shall have the power at any time to change the membership of any committee, to fill all vacancies, to designate alternate members to replace any absent or disqualified member or to dissolve any such committee.

ARTICLE V

OFFICERS

Section 1. GENERAL PROVISIONS. The officers of the

Corporation shall include a president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of the board, one or more vice presidents, a chief operating officer, a chief financial officer, one or more assistant secretaries and one or more assistant treasurers. In addition, the Board of Directors may from time to time appoint such other officers with such powers and duties as they shall deem necessary or desirable. The officers of the Corporation shall be elected annually by the Board of Directors at the first meeting of the Board of Directors held after each annual meeting of stockholders, except that the chief executive officer may appoint one or more vice presidents, assistant secretaries and assistant treasurers. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shall hold office until his successor is elected and qualifies or until his death, resignation or removal in the manner hereinafter provided. Any two or more offices except president and vice president may be held by the same person. In its discretion, the Board of Directors may leave unfilled any office except that of president, treasurer and secretary. Election of an officer or agent shall not of itself create contract rights between the Corporation and such officer or agent.

Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be removed by the Board of Directors if in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any officer of the Corporation may resign at any time by giving written notice of his resignation to the Board of Directors, the chairman of the board, the president or the secretary. Any resignation shall take effect at any time subsequent to the time specified therein or, if the time when it shall become effective is not specified therein, immediately upon its receipt. The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in the resignation. Such resignation shall be without prejudice to the contract rights, if any, of the Corporation.

Section 3. VACANCIES. A vacancy in any office may be filled by the Board of Directors for the balance of the term.

Section 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a chief executive officer. In the absence of such designation, the chairman of the board shall be the chief executive officer of the Corporation. The chief executive officer shall have general responsibility for implementation of the policies of the

Corporation, as determined by the Board of Directors, and for the management of the business and affairs of the Corporation.

Section 5. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief operating officer. The chief operating officer shall have the responsibilities and duties as set forth by the Board of Directors or the chief executive officer.

Section 6. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief financial officer. The chief financial officer shall have the responsibilities and duties as set forth by the Board of Directors or the chief executive officer.

Section 7. CHAIRMAN OF THE BOARD. The Board of Directors may designate a chairman of the board. The chairman of the board shall preside over the meetings of the Board of Directors and of the stockholders at which he shall be present. The chairman of the board shall perform such other duties as may be assigned to him or them by the Board of Directors.

Section 8. PRESIDENT. The president or chief executive officer, as the case may be, shall in general supervise and control all of the business and affairs of the Corporation. In the absence of a designation of a chief operating officer by the Board of Directors, the president shall be the chief operating officer. He may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the Board of Directors from time to time.

Section 9. VICE PRESIDENTS. In the absence of the president or in the event of a vacancy in such office, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated at the time of their election or, in the absence of any designation, then in the order of their election) shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to time may be assigned to him by the president or by the Board of Directors. The Board of Directors may designate one or more vice presidents as executive vice president, as senior vice president or as vice president for particular areas of

responsibility.

Section 10. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of the stockholders, the Board of Directors and committees of the Board of Directors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) have general charge of the share transfer books of the Corporation; and (f) in general perform such other duties as from time to time may be assigned to him by the chief executive officer, the president or by the Board of Directors.

Section 11. TREASURER. The treasurer shall have the custody of the funds and securities of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. In the absence of a designation of a chief financial officer by the Board of Directors, the treasurer shall be the chief financial officer of the Corporation.

The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the president and Board of Directors, whenever it may so require, an account of all his transactions as treasurer and of the financial condition of the Corporation.

If required by the Board of Directors, the treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, moneys and other property of whatever kind in his possession or under his control belonging to the Corporation.

Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or treasurer, respectively, or by the president or the Board of

Directors. The assistant treasurers shall, if required by the Board of Directors, give bonds for the faithful performance of their duties in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors.

Section 13. SALARIES. The salaries and other compensation of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary or other compensation by reason of the fact that he is also a director.

ARTICLE VI

CONTRACTS, LOANS, CHECKS AND DEPOSITS

Section 1. CONTRACTS. The Board of Directors may authorize any officer or agent to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific instances. Any agreement, deed, mortgage, lease or other document executed by one or more of the officers or by an authorized person shall be valid and binding upon the Board of Directors and upon the Corporation when authorized or ratified by action of the Board of Directors.

Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or agent of the Corporation in such manner as shall from time to time be determined by the Board of Directors.

Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board of Directors may designate.

ARTICLE VII

STOCK

Section 1. GENERAL. Unless the Board of Directors authorizes the issue of some or all of the shares of any of its classes or series without certificates, the Corporation shall comply with Sections 2 through 4 of this Article VII. If the Board of Directors authorizes the issue of some or all of the shares of any of

its classes or series without certificates it need not comply with such Sections with respect to any such shares but must comply with any requirements of the MGCL and the Commercial Law Article of the Annotated Code of Maryland regarding the issuance of shares without certificates.

Section 2. CERTIFICATES. Each stockholder shall be entitled to a certificate or certificates which shall represent and certify the number of shares of each class of stock held by him in the Corporation. Each certificate shall be signed by the chief executive officer, the chairman of the board, the president or a vice president and countersigned by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the seal, if any, of the Corporation. The signatures may be either manual or facsimile. Certificates shall be consecutively numbered; and if the Corporation shall, from time to time, issue several classes of stock, each class may have its own number series. A certificate is valid and may be issued whether or not an officer who signed it is still an officer when it is issued. Each certificate representing shares which are restricted as to their transferability or voting powers, which are preferred or limited as to their dividends or as to their allocable portion of the assets upon liquidation or which are redeemable at the option of the Corporation, shall have a statement of such restriction, limitation, preference or redemption provision, or a summary thereof, plainly stated on the certificate. If the Corporation has authority to issue stock of more than one class, the certificate shall contain on the face or back a full statement or summary of the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of each class of stock and, if the Corporation is authorized to issue any preferred or special class in series, the differences in the relative rights and preferences between the shares of each series to the extent they have been set and the authority of the Board of Directors to set the relative rights and preferences of subsequent series. In lieu of such statement or summary, the certificate may state that the Corporation will furnish a full statement of such information to any stockholder upon request and without charge. If any class of stock is restricted by the Corporation as to transferability, the certificate shall contain a full statement of the restriction or state that the Corporation will furnish information about the restrictions to the stockholder on request and without charge.

Section 3. TRANSFERS. Upon surrender to the Corporation or

the transfer agent of the Corporation of a stock certificate duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

The Corporation shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.

Notwithstanding the foregoing, transfers of shares of any class of stock will be subject in all respects to the charter of the Corporation and all of the terms and conditions contained therein.

Section 4. REPLACEMENT CERTIFICATE. Any officer designated by the Board of Directors may direct a new certificate to be issued in place of any certificate previously issued by the Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing the issuance of a new certificate, an officer designated by the Board of Directors may, in his discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or the owner’s legal representative to advertise the same in such manner as he shall require and/or to give bond, with sufficient surety, to the Corporation to indemnify it against any loss or claim which may arise as a result of the issuance of a new certificate.

Section 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of Directors may set, in advance, a record date for the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or determining stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of stockholders, not less than ten days, before the date on which the meeting or particular action requiring such determination of stockholders of record is to be held or taken.

In lieu of fixing a record date, the Board of Directors may

provide that the stock transfer books shall be closed for a stated period but not longer than 20 days. If the stock transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days before the date of such meeting.

If no record date is fixed and the stock transfer books are not closed for the determination of stockholders, (a) the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.

When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof, except when (i) the determination has been made through the closing of the transfer books and the stated period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after the record date fixed for the original meeting, in either of which case a new record date shall be determined as set forth herein.

Section 6. STOCK LEDGER. The Corporation shall maintain at its principal office or at the office of its counsel, accountants or transfer agent, an original or duplicate share ledger containing the name and address of each stockholder and the number of shares of each class held by such stockholder.

Section 7. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may issue fractional stock or provide for the issuance of scrip, all on such terms and under such conditions as they may determine. Notwithstanding any other provision of the charter or these Bylaws, the Board of Directors may issue units consisting of different securities of the Corporation. Any security issued in a unit shall have the same characteristics as any identical securities issued by the Corporation, except that the Board of Directors may provide that for a specified period securities of the Corporation issued in such unit may be transferred on the books of the Corporation only in such unit.

ARTICLE VIII

ACCOUNTING YEAR; APPOINTMENT OF AUDITORS

The Board of Directors shall have the power, from time to time, to (i) fix the fiscal year of the Corporation by a duly adopted resolution and (ii) appoint, or to authorize officers of the corporation to appoint, certified public accountants to prepare audited financial statements of the Corporation.

ARTICLE IX

DISTRIBUTIONS

Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the Corporation may be authorized and declared by the Board of Directors, subject to the provisions of law and the charter of the Corporation. Dividends and other distributions may be paid in cash, property or stock of the Corporation or its subsidiaries, subject to the provisions of law and the charter.

Section 2. CONTINGENCIES. Before payment of any dividends or other distributions, there may be set aside out of any assets of the Corporation available for dividends or other distributions such sum or sums as the Board of Directors may from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends or other distributions, for repairing or maintaining any property of the Corporation or for such other purpose as the Board of Directors shall determine to be in the best interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

ARTICLE X

INVESTMENT POLICY

Subject to the provisions of the charter of the Corporation, the Board of Directors may from time to time adopt, amend, revise or terminate any policy or policies with respect to investments by the Corporation as it shall deem appropriate in its sole discretion.

ARTICLE XI

SEAL

Section 1. SEAL. The Board of Directors may authorize the adoption of a seal by the Corporation. The seal shall contain the name of the Corporation and the year of its incorporation and the words “Maryland.” The Board of Directors may authorize one or more duplicate seals and provide for the custody thereof.

Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word “(SEAL)” adjacent to the signature of the person authorized to execute the document on behalf of the Corporation.

ARTICLE XII

INDEMNIFICATION AND ADVANCE OF EXPENSES

To the maximum extent permitted by Maryland law in effect from time to time, the Corporation shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, shall pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (a) any individual who is a present or former director or officer of the Corporation and who is made a party to the proceeding by reason of his service in that capacity or (b) any individual who, while a director of the Corporation and at the request of the Corporation, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made a party to the proceeding by reason of his service in that capacity. The Corporation may, with the approval of its Board of Directors, provide such indemnification and advance for expenses to a person who served a predecessor of the Corporation in any of the capacities described in (a) or (b) above and to any employee or agent of the Corporation or a predecessor of the Corporation.

Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the Bylaws or charter of the Corporation inconsistent with this Article, shall apply to or affect in any respect the applicability of the preceding paragraph with respect to any act or failure to act which occurred prior to

such amendment, repeal or adoption.

ARTICLE XIII

WAIVER OF NOTICE

Whenever any notice is required to be given pursuant to the charter of the Corporation or these Bylaws or pursuant to applicable law, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose of any meeting need be set forth in the waiver of notice, unless specifically required by statute. The attendance of any person at any meeting shall constitute a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.

ARTICLE XIV

AMENDMENT OF BYLAWS

The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision of these Bylaws and to make new Bylaws.

EXHIBIT 3.4 ARTICLES OF AMENDMENT OF HOLDINGS, CHANGING ITS NAME TO GETTY REALTY CORP., FILED JANUARY 30, 1998.


	DEPARTMENT OF ASSESSMENTS AND TAXATION APPROVED FOR RECORD 1.30.98 at 2.30p.m.

GETTY REALTY HOLDING CORP.

ARTICLES OF AMENDMENT

THIS IS TO CERTIFY THAT:

FIRST: The charter of Getty Realty Holding Corp., a Maryland corporation (the “Corporation”), is hereby amended by deleting existing Article II in its entirety and adding a new article to read as follows:

“ARTICLE II

NAME

The name of the corporation (the “Corporation”) is:

Getty Realty Corp.”

SECOND: The amendment to the charter of the Corporation as set forth above has been duly advised by the Board of Directors and approved by the stockholders of the Corporation as required by law.

THIRD: The undersigned President acknowledges these Articles of Amendment to be the corporate act of the Corporation and as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

IN WITNESS WHEREOF, the Corporation has caused these Articles to be signed in its name and on its behalf by its President and attested to by its Secretary on this 29th day of January, 1998.


ATTEST:	GETTY REALTY HOLDING CORP.
/s/ Randi Young Filip	By:	/s/ Leo Liebowitz
			(SEAL)
Randi Young Filip		Leo Liebowitz
Secretary		President

EXHIBIT 3.5 AMENDMENT TO ARTICLES OF INCORPORATION OF HOLDINGS, FILED AUGUST 1, 2001.

GETTY REALTY CORP.

ARTICLES OF AMENDMENT

THIS IS TO CERTIFY THAT:

FIRST: The charter of Getty Realty Corp., a Maryland corporation (the “Corporation”), is hereby amended by adding new Sections 6.6, 6.7, 6.8 and 6.9 to Article VI and new Articles VII and VIII to read as follows:

Section 6.6 Restrictions on Common Stock.

Section 6.6.1 Common Stock Ownership Limitations.

(a) Prior to the Restriction Termination Date:

(i) except as provided in Section 6.6.7, no Person, other than a Conversion Holder, shall Acquire or Beneficially or Constructively Own any shares of Common Stock if, as the result of such Acquisition or Beneficial or Constructive Ownership, such Person shall (a) Beneficially Own shares of Common Stock in excess of the Common Stock Ownership Limit or (b) Constructively Own in excess of 9.9% (by value or number of shares, whichever is more restrictive) of the outstanding Common Stock, provided, however, a Conversion Holder shall be permitted to Acquire or Beneficially Own or Constructively Own shares of Common Stock in excess of the limitation provided herein to the extent that such excess Beneficial or Constructive Ownership was caused by the Conversion of (or the right to convert) Preferred Stock into Common Stock;

(ii) except as provided in Sections 6.6.7 and 6.8.7, no Person, including but not limited to a Conversion Holder, shall (a) Acquire or Beneficially Own shares of Preferred Stock or Common Stock in excess of the Aggregate Stock Ownership Limit or (b) Acquire or Constructively Own in excess of 9.9% (in value) of the aggregate of the outstanding shares of Capital Stock; and

(iii) no Person shall Acquire or Beneficially or Constructively Own shares of Capital Stock to the extent that such Acquisition or Beneficial or Constructive Ownership of Capital Stock would result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code, or otherwise failing to qualify as a REIT (including, but not limited to, an Acquisition or Beneficial or Constructive Ownership that would result in the Corporation owning (actually or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code).

(b) If, prior to the Restriction Termination Date, any Transfer or Acquisition of shares of Common Stock (other than a Transfer or Acquisition to which Section 6.6.1(c) applies) (whether or not such Transfer or Acquisition is the result of a transaction entered into through the facilities of the NYSE or any other national securities exchange or

automated inter-dealer quotation system) occurs which, if effective, would result in any Person Acquiring shares of Common Stock in violation of Section 6.6.1(a), then (i) that number of shares of the Common Stock being Transferred or Acquired that otherwise would cause such Person to violate Section 6.6.1(a) (rounded up to the nearest whole share) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 6.7, effective as of the close of business on the Business Day prior to the date of such Transfer or Acquisition, and such Person shall acquire no rights in such shares or (ii) if the transfer to the Trust described in clause (i) of this sentence would not be effective for any reason to prevent any Person from Acquiring or Transferring Common Stock in violation of Section 6.6.1(a), the Transfer or Acquisition of that number of shares of Common Stock that otherwise would cause any Person to violate Section 6.6.1(a) shall be void ab initio, and the intended transferee shall acquire no rights in such shares of Common Stock.

(c) If, prior to the Restriction Termination Date, a change in the relationship between two or more Persons (“Common Stock Affected Persons”) results in any such Common Stock Affected Persons Beneficially or Constructively Owning shares of Common Stock in violation of Section 6.6.1(a) because of the application of Section 318(a) of the Code (as modified by Section 856(d)(5) of the Code) or Section 544 of the Code (as modified by Section 856(h)(1)(B) of the Code) (a “Common Stock Constructive Ownership Event”), then that number of shares of Common Stock Beneficially or Constructively Owned by the Common Stock Affected Persons (rounded up to the nearest whole share) that otherwise would violate Section 6.6.1(a) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 6.7, effective as of the close of business on the Business Day prior to such Common Stock Constructive Ownership Event, and such Common Stock Affected Person or Persons shall have no rights in such shares.

(d) Notwithstanding any other provisions contained herein, prior to the Restriction Termination Date, any Transfer or Acquisition of shares of Common Stock (whether or not such Transfer or Acquisition is the result of a transaction entered into through the facilities of the NYSE or any other national securities exchange or automated inter-dealer quotation system) that, if effective, would result in the Capital Stock being beneficially owned by less than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio, and the intended transferee shall acquire no rights in such shares of Common Stock.

(e) If, prior to the Restriction Termination Date, any Person Beneficially or Constructively Owns any shares of Common Stock in violation of Section 6.6.1(a) (other than as a result of a Transfer or Acquisition to which Section 6.6.1(b) or Section 6.6.1(c) applies), then (i) that number of shares of Common Stock owned by such Person that cause such Person to violate Section 6.6.1(a) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 6.7, effective as of the close of business on the first Business Day of the first taxable year that the Corporation qualifies as a REIT (the “First REIT Taxable Year”), and such Person shall have no rights in such shares as of the first Business Day of the First REIT Taxable Year or (ii) if the transfer to the Trust described in clause (i) of this sentence would not be effective for any reason to prevent any Person from Beneficially or Constructively Owning Common Stock in violation of Section 6.6.1(a), the ownership of that number of shares of Common Stock, as of the date hereof, that otherwise would cause any Person to violate Section 6.6.1(a) shall be void ab initio, and such Person shall

have no rights in such shares of Common Stock as of the first Business Day of the First REIT Taxable Year.

Section 6.6.2 Remedies for Breach. If the Board of Directors of the Corporation or any duly authorized committee thereof shall at any time determine in good faith that a Transfer or other event has taken place that results in a violation of Section 6.6.1 or that a Person intends to Acquire or has attempted to Acquire Beneficial or Constructive Ownership of any shares of Common Stock in violation of Section 6.6.1 (whether or not such violation is intended), the Board of Directors or a committee thereof shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including, but not limited to, causing the Corporation to redeem shares, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer; provided, however, that any Transfers or attempted Transfers or, in the case of an event other than a Transfer, Beneficial or Constructive Ownership in violation of Section 6.6.1 shall automatically result in the transfer to the Trust described above, and, where applicable, such Transfer (or other event) shall be void ab initio as provided above irrespective of any action (or non-action) by the Board of Directors or a committee thereof.

Section 6.6.3 Notice of Restricted Transfer. Any Person who Acquires or attempts or intends to Acquire shares of Common Stock in violation of Section 6.6.1 or any Person who is a transferee in a Transfer or is otherwise affected by an event other than a Transfer that results in a violation of Section 6.6.1 shall immediately give written notice to the Corporation of such Acquisition, Transfer or other event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Acquisition, Transfer or attempted, intended or purported Acquisition, Transfer or other event on the Corporation’s status as a REIT.

Section 6.6.4 Owners Required To Provide Information. Prior to the Restriction Termination Date:

(a) every owner of more than five percent (5%) (or such lower percentage as required by the Code or the Treasury Regulations promulgated thereunder) of the outstanding shares of Common Stock shall, within 30 days after December 31 of each year, give written notice to the Corporation stating the name and address of such owner, the number of shares of Common Stock and other shares of the Common Stock Beneficially or Constructively Owned, and a description of the manner in which such shares are held. Each such owner shall provide to the Corporation such additional information as the Corporation may request in order to determine the effect, if any, of such Beneficial or Constructive Ownership on the Corporation’s status as a REIT and to ensure compliance with the Common Stock Ownership Limit; and

(b) each Person who is a Beneficial or Constructive Owner of Common Stock and each Person (including the stockholder of record) who is holding Common Stock for a Beneficial or Constructive Owner shall provide to the Corporation such information as the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT and to comply with requirements of any taxing authority or governmental authority to determine such compliance.

Section 6.6.5 Remedies Not Limited. Nothing contained in this Section 6.6 shall limit the authority of the Board of Directors of the Corporation to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders in preserving the Corporation’s status as a REIT.

Section 6.6.6 Ambiguity. In the case of an ambiguity in the application of any of the provisions of this Section 6.6, Section 6.7, or any definition contained in Article VIII, the Board of Directors of the Corporation shall have the power to determine the application of the provisions of this Section 6.6 or Section 6.7 with respect to any situation based on the facts known to it. In the event Section 6.6 or 6.7 requires an action by the Board of Directors of the Corporation, and the Charter fails to provide specific guidance with respect to such action, the Board of Directors of the Corporation shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of Sections 6.6 or 6.7 or Article VIII. Absent a decision to the contrary by the Board of Directors (which the Board may make in its sole and absolute discretion), the shares to be affected by the remedies set forth in Section 6.6.1(b), (c) and (e) shall be as follows: (1) if a Person would have (but for the remedies set forth in Section 6.6.1(b), (c) and (e) as applicable) Acquired shares of Common Stock in violation of Section 6.6.1(a), such remedies (as applicable) shall apply first to the shares which, but for such remedies, would have been Acquired and actually owned by such Person, second to shares which, but for such remedies, would have been Acquired by such Person and which would have been Beneficially Owned or Constructively Owned (but not actually owned) by such Person, pro rata among the Persons who actually own such shares based upon the relative value of the shares held by each such Person; and (2) if a Person is in violation of Section 6.6.1(a) as a result of an event other than an Acquisition of shares of Common Stock by such Person, the remedies set forth in Section 6.6.1(b), (c) or (e) (as applicable) shall apply first to shares which are actually owned by such Person and second to shares which are Beneficially or Constructively Owned (but not actually owned) by such Person, pro rata among the Persons who actually own such shares based upon the relative value of the shares held by each such Person.

Section 6.6.7 Exceptions.

(a) Subject to Section 6.6.1(a)(iii), the Board of Directors of the Corporation, in its sole discretion, may exempt a Person from the limitations set forth in Section 6.6.1(a)(i) or (ii), as the case may be, if: (A) the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain that no individual’s Beneficial or Constructive Ownership of such shares of Common Stock will result in the Corporation failing to satisfy the requirement of Section 856(a)(6) of the Code (taking into consideration Section 856(h)(2) of the Code) or otherwise failing to qualify as a REIT; (B) such Person does not and represents that it will not own, actually or Constructively, an interest in a tenant of the Corporation (or a tenant of an entity owned or controlled by the Corporation) that would cause the Corporation to own, actually or Constructively, more than a 9.9% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Board of Directors obtains such representations and undertakings from such Persons as are reasonably necessary to ascertain this fact; and (C) such Person agrees that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in Section 6.6.1 through 6.6.6) will result in such Common Stock being automatically transferred to a Trust in accordance with Section 6.6.1. Solely for purposes of clause (B) above, a tenant from whom the

Corporation (or an entity owned or controlled by the Corporation) derives (and is expected to continue to derive) a sufficiently small amount of revenue such that, in the opinion of the Board of Directors of the Corporation, rent from such tenant would not adversely affect the Corporation’s ability to qualify as a REIT, shall not be treated as a tenant of the Corporation.

(b) Prior to granting any exception pursuant to Section 6.6.7(a), the Board of Directors of the Corporation may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT. Notwithstanding the receipt of any ruling or opinion, the Board of Directors may impose such conditions or restrictions as it deems appropriate in connection with granting such exception.

(c) Subject to Section 6.6.1(a)(iii), an underwriter which participates in a public offering or a private placement of Capital Stock (or securities convertible into or exchangeable for Capital Stock) may Acquire or Beneficially Own or Constructively Own shares of Capital Stock (or securities convertible into or exchangeable for Capital Stock) in excess of the limitations set forth in Sections 6.6.1(a)(i) and (ii), but only to the extent necessary to facilitate such public offering or private placement.

Section 6.6.8 Legend. Each certificate for shares of Common Stock shall bear substantially the following legend:

Constructively Owns or attempts to Beneficially or Constructively Own shares of Common Stock which causes or will cause a Person to Beneficially or Constructively Own shares of Common Stock in excess of the above limitations must immediately notify the Corporation. If any of the restrictions on transfer or ownership are violated, the shares of Common Stock represented hereby will be automatically transferred to a Trustee of a Trust for the benefit of one or more Charitable Beneficiaries. In addition, the Corporation may redeem shares upon the terms and conditions specified by the Board of Directors in its sole discretion if the Board of Directors determines that ownership or a Transfer or other event may violate the restrictions described above. Furthermore, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described above may be void ab initio. All capitalized terms in this legend have the meanings defined in the charter of the Corporation, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Common Stock on request and without charge.”

Section 6.7 Transfers of Common Stock in Trust.

Section 6.7.1 Ownership in Trust. Upon any purported Transfer, Acquisition, or other event described in Section 6.6.1(b) or (c) that may result in a transfer of shares of Common Stock to a Trust, such shares of Common Stock shall be deemed to have been transferred to the Trustee in his capacity as trustee of a Trust for the exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the Trustee shall be deemed to be effective as of the close of business on the Business Day prior to the purported Transfer, Acquisition, or other event that results in a transfer to the Trust pursuant to Section 6.6.1. The Trustee shall be appointed by the Corporation and shall be a Person who is not an Affiliate of the Corporation, any Purported Beneficial Transferee, or any Purported Record Transferee. Each Charitable Beneficiary shall be designated by the Corporation as provided in Section 6.7.6.

Section 6.7.2 Status of Shares Held by the Trustee. Shares of Common Stock held by the Trustee shall be issued and outstanding shares of Capital Stock of the Corporation. The Purported Beneficial Transferee or Purported Record Transferee shall have no rights in the shares held by the Trustee. The Purported Beneficial Transferee or Purported Record Transferee shall not benefit economically from ownership of any shares held in trust by the Trustee, shall have no rights to dividends and shall not possess any rights to vote or other rights attributable to the shares held in the Trust.

Section 6.7.3 Dividend and Voting Rights. The Trustee shall have all voting rights and rights to dividends with respect to shares of Common Stock held in the Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend or distribution paid prior to the discovery by the Corporation that the shares of Common Stock have been transferred to the Trustee shall be paid to the Trustee upon demand, and any dividend or distribution declared but unpaid shall be paid when due to the Trustee with respect to such shares of Common Stock. Any dividends or distributions so paid over to the Trustee shall be held in trust for the Charitable Beneficiary. The Purported Record Transferee shall have no voting

rights with respect to shares held in the Trust and, subject to applicable law, any vote cast by a Purported Record Transferee prior to the discovery by the Corporation that the shares of Common Stock have been transferred to the Trustee will be rescinded as void and shall be recast in accordance with the desires of the Trustee acting for the benefit of the Charitable Beneficiary.

Section 6.7.4 Sale of Shares by Trustee. Within 20 days of receiving notice from the Corporation that shares of Common Stock have been transferred to the Trust, the Trustee of the Trust shall sell the shares held in the Trust to one or more persons, designated by the Trustee, whose ownership of the shares will not violate the ownership limitations set forth in Section 6.6.1(a). Upon such sale, the interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Purported Record Transferee and to the Charitable Beneficiary as provided in this Section 6.7.4. The Purported Record Transferee shall receive the lesser of (1) the price paid by the Purported Record Transferee for the shares or, if the Purported Record Transferee did not give value for the shares (through a gift, devise or other transaction), the Market Price of the shares on the day of the event causing the shares to be held in the Trust and (2) the price per share received by the Trustee from the sale or other disposition of the shares held in the Trust. Any net sales proceeds in excess of the amount payable to the Purported Record Transferee shall be immediately paid to the Charitable Beneficiary. If, prior to the discovery by the Corporation that shares of Common Stock have been transferred to the Trustee, such shares are sold by a Purported Record Transferee then (i) such shares shall be deemed to have been sold on behalf of the Trust and (ii) to the extent that the Purported Record Transferee received an amount for such shares that exceeds the amount that such Purported Record Transferee was entitled to receive pursuant to this Section 6.7.4, such excess shall be paid to the Trustee upon demand.

Section 6.7.5 Purchase Right in Stock Transferred to the Trustee. Shares of Common Stock transferred to the Trustee shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that resulted in such transfer to the Trust (or, in the case of a devise or gift, the Market Price at the time of such devise or gift) and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer until the Trustee has sold the shares held in the Trust pursuant to Section 6.7.4. Upon such a sale to the Corporation, the interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Purported Record Transferee.

Section 6.7.6 Designation of Charitable Beneficiaries. By written notice to the Trustee, the Corporation shall designate one or more nonprofit organizations to be the Charitable Beneficiary of the interest in the Trust such that (i) the shares of Common Stock held in the Trust would not violate the restrictions set forth in Section 6.6.1(a) in the hands of such Charitable Beneficiary and (ii) each Charitable Beneficiary is an organization described in Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the Code.

Section 6.8 Restrictions on Preferred Stock.

Section 6.8.1 Preferred Stock Ownership Limitations.

(a) Prior to the Restriction Termination Date:

(i) except as provided in Section 6.8.7, no person shall Acquire or Beneficially or Constructively Own any shares of Preferred Stock if, as the result of such Acquisition or Beneficial or Constructive Ownership, such Person shall (a) Beneficially Own shares of Preferred Stock in excess of the Preferred Stock Ownership Limit or (b) Constructively Own in excess of 9.9% (by value or number of shares, whichever is more restrictive) of any class or series of outstanding Preferred Stock of the Corporation;

(ii) except as provided in Sections 6.6.7 and 6.8.7, no Person shall (a) Acquire or Beneficially Own shares of Preferred Stock or Common Stock in excess of the Aggregate Stock Ownership Limit or (b) Acquire or Constructively Own in excess of 9.9% (in value) of the aggregate outstanding shares of Capital Stock; and

(b) If, prior to the Restriction Termination Date, any Transfer or Acquisition of shares of Preferred Stock (other than a Transfer or Acquisition to which Section 6.8.1(c) applies) (whether or not such Transfer or Acquisition is the result of a transaction entered into through the facilities of the NYSE or any other national securities exchange or automated inter-dealer quotation system) occurs which, if effective, would result in any Person Acquiring shares of Preferred Stock in violation of Section 6.8.1(a), then (i) that number of shares of the Preferred Stock of that series or class being Transferred or Acquired that otherwise would cause such Person to violate Section 6.8.1(a) (rounded up to the nearest whole share) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 6.9, effective as of the close of business on the Business Day prior to the date of such Transfer or Acquisition, and such Person shall acquire no rights in such shares; or (ii) if the transfer to the Trust described in clause (i) of this sentence would not be effective for any reason to prevent any Person from Acquiring or Transferring Preferred Stock in violation of Section 6.8.1(a), the Transfer or Acquisition of that number of shares of Preferred Stock that otherwise would cause any Person to violate Section 6.8.1(a) shall be void ab initio, and the intended transferee shall acquire no rights in such shares of Preferred Stock.

(c) If, prior to the Restriction Termination Date, a change in the relationship between two or more Persons (“Preferred Stock Affected Persons”) results in any of

such Preferred Stock Affected Persons Beneficially or Constructively Owning shares of Preferred Stock in violation of Section 6.8.1(a) because of the application of Section 318(a) of the Code (as modified by Section 856(d)(5) of the Code) or Section 544 of the Code (as modified by Section 856(h)(1)(B) of the Code) (a “Preferred Stock Constructive Ownership Event”), then that number of shares of Preferred Stock Beneficially or Constructively Owned by the Preferred Stock Affected Persons (rounded up to the nearest whole share) that otherwise would violate Section 6.8.1(a) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 6.9, effective as of the close of business on the Business Day prior to such Preferred Stock Constructive Ownership Event, and such Preferred Stock Affected Person or Persons shall have no rights in such shares.

(d) Notwithstanding any other provisions contained herein, prior to the Restriction Termination Date, any Transfer or Acquisition of shares of Preferred Stock (whether or not such Transfer or Acquisition is the result of a transaction entered into through the facilities of the NYSE or any other national securities exchange or automated inter-dealer quotation system) that, if effective, would result in the Capital Stock being beneficially owned by less than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio, and the intended transferee shall acquire no rights in such shares of Preferred Stock.

(e) If, prior to the Restriction Termination Date, any Person Beneficially or Constructively Owns any shares of Preferred Stock in violation of Section 6.8.1(a) (other than as a result of a Transfer or Acquisition to which Section 6.8.1(b) or Section 6.8.1(c) applies), then (i) that number of shares of Preferred Stock of that series or class owned by such Person that cause such Person to violate Section 6.8.1(a) shall be automatically transferred to a Trust for the benefit of a Charitable Beneficiary, as described in Section 6.9, effective as of the close of business on the First REIT Taxable Year, and such Person shall have no rights in such shares as of the first Business Day of the First REIT Taxable Year or (ii) if the transfer to the Trust described in clause (i) of this sentence would not be effective for any reason to prevent any Person from Beneficially or Constructively Owning Preferred Stock in violation of Section 6.8.1(a), the ownership of that number of shares of Preferred Stock, as of the date hereof, that otherwise would cause any Person to violate Section 6.8.1(a) shall be void ab initio, and such Person shall have no rights in such shares of Preferred Stock as of the first Business Day of the First REIT Taxable Year.

Section 6.8.2 Remedies for Breach. If the Board of Directors of the Corporation or any duly authorized committee thereof shall at any time determine in good faith that a Transfer or other event has taken place that results in a violation of Section 6.8.1 or that a Person intends to Acquire or has attempted to Acquire Beneficial or Constructive Ownership of any shares of Preferred Stock in violation of Section 6.8.1 (whether or not such violation is intended), the Board of Directors or a committee thereof shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including, but not limited to, causing the Corporation to redeem shares, refusing to give effect to such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer; provided, however, that any Transfers or attempted Transfers or, in the case of an event other than a Transfer, Beneficial or Constructive Ownership, in violation of Section 6.8.1 shall automatically result in the transfer to the Trust described above and, where applicable, such Transfer (or other event) shall be void

ab initio as provided above irrespective of any action (or non-action) by the Board of Directors or a committee thereof.

Section 6.8.3 Notice of Restricted Transfer. Any Person who Acquires or attempts or intends to Acquire shares of Preferred Stock in violation of Section 6.8.1 or any Person who is a transferee in a Transfer or is otherwise affected by an event other than a Transfer that results in a violation of Section 6.8.1 shall immediately give written notice to the Corporation of such Acquisition, Transfer or other event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such Acquisition, Transfer or attempted, intended or purported Acquisition, Transfer or other event on the Corporation’s status as a REIT.

Section 6.8.4 Owners Required To Provide Information. Prior to the Restriction Termination Date:

(a) every owner of more than five percent (5%) (or such lower percentage as required by the Code or the Treasury Regulations promulgated thereunder) of the number or value, whichever is more restrictive, of the outstanding shares of Preferred Stock, within 30 days after December 31 of each year, shall give written notice to the Corporation stating the name and address of such owner, the number of shares of Preferred Stock and other shares of the Capital Stock Beneficially Owned, and a description of the manner in which such shares are held. Each such owner shall provide to the Corporation such additional information as the Corporation may request in order to determine the effect, if any, of such Beneficial Ownership on the Corporation’s status as a REIT and to ensure compliance with the Preferred Stock Ownership Limit; and

(b) each Person who is a Beneficial or Constructive Owner of Preferred Stock and each Person (including the stockholder of record) who is holding Preferred Stock for a Beneficial or Constructive Owner shall provide to the Corporation such information as the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT and to comply with requirements of any taxing authority or governmental authority or to determine such compliance.

Section 6.8.5 Remedies Not Limited. Nothing contained in this Section 6.8 shall limit the authority of the Board of Directors of the Corporation to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders in preserving the Corporation’s status as a REIT.

Section 6.8.6 Ambiguity. In the case of an ambiguity in the application of any of the provisions of this Section 6.8, Section 6.9, or any definition contained in Article VIII, the Board of Directors of the Corporation shall have the power to determine the application of the provisions of this Section 6.8 or Section 6.9 with respect to any situation based on the facts known to it. In the event Section 6.8 or 6.9 requires an action by the Board of Directors and this Charter fails to provide specific guidance with respect to such action, the Board of Directors shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of Sections 6.8 or 6.9 or Article VIII. Absent a decision to the contrary by the Board of Directors (which the Board may make in its sole and absolute discretion), the shares to

be affected by the remedies set forth in Section 6.8.1(b), (c) and (e) shall be as follows: (1) if a Person would have (but for the remedies set forth in Section 6.8.1(b), (c) and (e) as applicable) Acquired shares of Preferred Stock in violation of Section 6.8.1(a), such remedies (as applicable) shall apply first to the shares which, but for such remedies, would have been Acquired and actually owned by such Person, second to shares which, but for such remedies, would have been Acquired by such Person and which would have been Beneficially Owned or Constructively Owned (but not actually owned) by such Person, pro rata among the Persons who actually own such shares based upon the relative value of the shares held by each such Person; and (2) if a Person is in violation of Section 6.8.1(a) as a result of an event other than an Acquisition of shares of Preferred Stock by such Person, the remedies set forth in Section 6.8.1(b), (c) or (e) (as applicable) shall apply first to shares which are actually owned by such Person and second to shares which are Beneficially or Constructively Owned (but not actually owned) by such Person, pro rata among the Persons who actually own such shares based upon the relative value of the shares held by each such Person.

Section 6.8.7 Exceptions.

(a) Subject to Section 6.8.1(a)(iii), the Board of Directors of the Corporation, in its sole discretion, may exempt a Person from the limitations set forth in Sections 6.8.1(a)(i) or (ii), as the case may be, if: (A) the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain that no individual’s Beneficial or Constructive Ownership of such shares of Preferred Stock will result in the Corporation failing to satisfy the requirement of Section 856(a)(6) of the Code (taking into consideration Section 856(h)(2) of the Code) or otherwise failing to qualify as a REIT; (B) such Person does not and represents that it will not own, actually or Constructively, an interest in a tenant of the Corporation (or a tenant of any entity owned or controlled by the Corporation) that would cause the Corporation to own, actually or Constructively, more than a 9.9% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain this fact; and (C) such Person agrees that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in Section 6.8.1 through 6.8.6) will result in such shares of Preferred Stock being automatically transferred to a Trust in accordance with Section 6.8.1. Solely for purposes of clause (B) above, a tenant from whom the Corporation (or an entity owned or controlled by the Corporation) derives (and is expected to continue to derive) a sufficiently small amount of revenue such that, in the opinion of the Board of Directors of the Corporation, rent from such tenant would not adversely affect the Corporation’s ability to qualify as a REIT, shall not be treated as a tenant of the Corporation.

(b) Prior to granting any exception pursuant to Section 6.8.7(a), the Board of Directors of the Corporation may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT. Notwithstanding the receipt of any ruling or opinion, the Board of Directors may impose such conditions or restrictions as it deems appropriate in connection with granting such exception.

(c) Subject to Section 6.8.1(a)(iii), an underwriter which participates in a public offering or a private placement of Capital Stock (or securities convertible into or exchangeable for Capital Stock) may Acquire or Beneficially Own or Constructively Own shares of Capital Stock or securities convertible into or exchangeable for Capital Stock) in excess of the limitations set forth in Sections 6.8.1(a)(i) and (ii), but only to the extent necessary to facilitate such public offering or private placement.

Section 6.8.8 Legend. Each certificate for shares of Preferred Stock shall bear substantially the following legend:

“The shares represented by this certificate are subject to restrictions on Beneficial and Constructive Ownership and Transfer for the purpose of the Corporation’s maintenance of its status as a Real Estate Investment Trust under the Internal Revenue Code of 1986, as amended (the “Code”). Subject to certain further restrictions and except as expressly provided in the Corporation’s Charter, (i) no Person may Beneficially Acquire shares of the Corporation’s Preferred Stock in excess of 5.0% of the number or value, whichever is more restrictive, of the outstanding shares of any class or series of Preferred Stock of the Corporation or Constructively Acquire in excess of 9.9% of the number or value, whichever is more restrictive, of the outstanding shares of any class or series of Preferred Stock of the Corporation; (ii) no Person (other than a Conversion Holder with respect to such holder’s conversion rights) may Beneficially Own shares of the Corporation’s Common Stock in excess of 5.0% of the number or value, whichever is more restrictive, of the outstanding shares of Common Stock of the Corporation or Constructively Own in excess of 9.9% of the number or value, whichever is more restrictive, of the outstanding shares of Common Stock of the Corporation; (iii) no Person may Beneficially Own shares of Capital Stock of the Corporation which has an aggregate value in excess of 5.0% of the value of the total outstanding shares of Capital Stock of the Corporation or Constructively Own shares of Capital Stock of the Corporation which have an aggregate value in excess of 9.9% of the value of the total outstanding shares of Capital Stock of the Corporation; (iv) no Person may Beneficially or Constructively Own Preferred Stock or Common Stock that would result in the Corporation being “closely held” under Section 856(h) of the Code or otherwise cause the Corporation to fail to qualify as a REIT; and (v) no Person may Transfer or Acquire shares of Preferred Stock if such Transfer or Acquisition would result in the Capital Stock of the Corporation being owned by fewer than 100 Persons. Any Person who Beneficially or Constructively Owns or attempts to Beneficially or Constructively Own shares of Preferred Stock or Common Stock which causes or will cause a Person to Beneficially or Constructively Own shares of Preferred Stock or Common Stock in excess of the above limitations must immediately notify the Corporation. If any of the restrictions on transfer or ownership are violated, the shares of Preferred Stock represented hereby will be automatically transferred to a Trustee of a Trust for the benefit of one or more Charitable Beneficiaries.

In addition, the Corporation may redeem shares upon the terms and conditions specified by the Board of Directors in its sole discretion if the Board of Directors determines that ownership or a Transfer or other event may violate the restrictions described above. Furthermore, upon the occurrence of certain events, attempted Transfers in violation of the restrictions described above may be void ab initio. All capitalized terms in this legend have the meanings defined in the charter of the Corporation, as the same may be amended from time to time, a copy of which, including the restrictions on transfer and ownership, will be furnished to each holder of Preferred Stock on request and without charge.”

Section 6.9 Transfer of Preferred Stock in Trust.

Section 6.9.1 Ownership in Trust. Upon any purported Transfer, Acquisition, or other event described in 6.8.1(b) or (c) that may result in a transfer of shares of Preferred Stock to a Trust, such shares of Preferred Stock shall be deemed to have been transferred to the Trustee in his capacity as trustee of a Trust for the exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the Trustee shall be deemed to be effective as of the close of business on the Business Day prior to the purported Transfer, Acquisition, or other event that results in the transfer to the Trust pursuant to Section 6.8.1. The Trustee shall be appointed by the Corporation and shall be a Person who is not an Affiliate of the Corporation, any Purported Beneficial Transferee, or any Purported Record Transferee. Each Charitable Beneficiary shall be designated by the Corporation as provided in Section 6.9.6.

Section 6.9.2 Status of Shares Held by the Trustee. Shares of Preferred Stock held by the Trustee shall be issued and outstanding shares of Capital Stock. The Purported Beneficial Transferee or Purported Record Transferee shall have no rights in the shares held by the Trustee. The Purported Beneficial Transferee or Purported Record Transferee shall not benefit economically from ownership of any shares held in trust by the Trustee, shall have no rights to dividends and shall not possess any rights to vote or other rights attributable to the shares held in the Trust.

Section 6.9.3 Dividend and Voting Rights. The Trustee shall have all voting rights and rights to dividends with respect to shares of Preferred Stock held in the Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend or distribution paid prior to the discovery by the Corporation that the shares of Preferred Stock have been transferred to the Trustee shall be paid with respect to such shares of Preferred Stock to the Trustee upon demand, and any dividend or distribution declared but unpaid shall be paid when due to the Trustee. Any dividends or distributions so paid over to the Trustee shall be held in trust for the Charitable Beneficiary. The Purported Record Transferee shall have no voting rights with respect to shares held in the Trust and, subject to applicable law, any vote cast by a Purported Record Transferee prior to the discovery by the Corporation that the shares of Preferred Stock have been transferred to the Trustee will be rescinded as void and shall be recast in accordance with the desires of the Trustee acting for the benefit of the Charitable Beneficiary.

Section 6.9.4 Sale of Shares by Trustee. Within 20 days of receiving notice from the Corporation that shares of Preferred Stock have been transferred to the Trust, the

Trustee of the Trust shall sell the shares held in the Trust to one or more persons, designated by the Trustee, whose ownership of the shares will not violate the ownership limitations set forth in Section 6.8.1(a). Upon such sale, the interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Purported Record Transferee and to the Charitable Beneficiary as provided in this Section 6.9.4. The Purported Record Transferee shall receive the lesser of (1) the price paid by the Purported Record Transferee for the shares or, if the Purported Record Transferee did not give value for the shares (through a gift, devise or other transaction), the Market Price of the shares on the day of the event causing the shares to be held in the Trust and (2) the price per share received by the Trustee from the sale or other disposition of the shares held in the Trust. Any net sales proceeds in excess of the amount payable to the Purported Record Transferee shall be immediately paid to the Charitable Beneficiary. If, prior to the discovery by the Corporation that shares of Preferred Stock have been transferred to the Trustee, such shares are sold by a Purported Record Transferee then (i) such shares shall be deemed to have been sold on behalf of the Trust and (ii) to the extent that the Purported Record Transferee received an amount for such shares that exceeds the amount that such Purported Record Transferee was entitled to receive pursuant to this Section 6.9.4, such excess shall be paid to the Trustee upon demand.

Section 6.9.5 Purchase Right in Stock Transferred to the Trustee. Shares of Preferred Stock transferred to the Trustee shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that resulted in such transfer to the Trust (or, in the case of a devise or gift, the Market Price at the time of such devise or gift) and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer until the Trustee has sold the shares held in the Trust pursuant to Section 6.9.4. Upon such a sale to the Corporation, the interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall distribute the net proceeds of the sale to the Purported Record Transferee.

Section 6.9.6 Designation of Charitable Beneficiaries. By written notice to the Trustee, the Corporation shall designate one or more nonprofit organizations to be the Charitable Beneficiary of the interest in the Trust such that (i) the shares of Preferred Stock held in the Trust would not violate the restrictions set forth in Section 6.8.1(c) in the hands of such Charitable Beneficiary and (ii) each Charitable Beneficiary is an organization described in Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the Code.

ARTICLE VII

GENERAL REIT PROVISIONS

Section 7.1 Termination of REIT Status. The Board of Directors of the Corporation shall take no action to terminate the Corporation’s status as a REIT until such time as (i) the Board of Directors adopts a resolution recommending that the Corporation terminate its status as a REIT, (ii) the Board of Directors presents the resolution for consideration at an annual or special meeting of the stockholders and (iii) such resolution is approved by the vote of holders of a majority of the shares entitled to be cast on the matter.

Section 7.2 Exchange or Market Transactions. Nothing in Article VI or this Article VII shall preclude the settlement of any transaction entered into through the facilities of any national securities exchange or automated inter-dealer quotation system. The fact that the settlement of any transaction is permitted shall not negate the effect of any other provision of Article VI or this Article VII and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in Article VI and this Article VII.

Section 7.3 Severability. If any provision of Article VI or this Article VII or any application of any such provision is determined to be invalid by any federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provision shall be affected only to the extent necessary to comply with the determination of such court.

ARTICLE VIII

CERTAIN DEFINITIONS

Unless the context otherwise requires, the terms defined in this Article VIII shall have, for all purposes of this Charter, the meanings herein specified (with terms defined in the singular having comparable meanings when used in the plural).

Acquire. The term “Acquire” shall mean the acquisition of Beneficial Ownership or Constructive Ownership of shares of Capital Stock by any means including, without limitation, a Transfer, the exercise of or right to exercise any rights under any option, warrant, convertible security, pledge or other security interest or similar right to acquire shares, but shall not include the acquisition of any such rights unless, as a result, the acquiror would be considered a Beneficial Owner or Constructive Owner, as defined below. The term “Acquisition” shall have the correlative meaning.

Affiliate. The term “Affiliate” shall mean any Person in control of, under control of, or under common control with, another Person. For purposes of the foregoing, “control”, with respect to any Person, means the possession, directly or indirectly through one or more intermediaries, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise.

Aggregate Stock Ownership Limit. The term “Aggregate Stock Ownership Limit” shall mean not more than 5.0% (in value) of the aggregate of the outstanding shares of Capital Stock. The number and value of shares of the outstanding shares of Capital Stock shall be determined by the Board of Directors of the Corporation in good faith, which determination shall be conclusive for all purposes hereof.

Beneficial Ownership. The term “Beneficial Ownership” shall mean ownership of Capital Stock by a Person who is or would be an actual owner of such shares of Capital Stock or who is or would be treated as a constructive owner of such shares through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code (except where expressly provided otherwise). The terms “Beneficial Owner,” “Beneficially Owns” and “Beneficially Owned” shall have the correlative meanings.

Business Day. The term “Business Day” shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.

Capital Stock. The term “Capital Stock” shall mean all classes or series of stock of the Corporation, including, without limitation, Common Stock and Preferred Stock.

Charitable Beneficiary. The term “Charitable Beneficiary” shall mean one or more beneficiaries of the Trust as determined pursuant to Section 6.7.6 or Section 6.9.6 each of which shall be an organization described in Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the Code.

Code. The term “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

Common Stock Affected Persons. The term “Common Stock Affected Persons” shall have the meaning set forth in Section 6.6.1(c) herein.

Common Stock Ownership Limit. The term “Common Stock Ownership Limit” shall mean not more than 5.0% (in value or in number of shares, whichever is more restrictive) of the aggregate of the outstanding shares of Common Stock of the Corporation. The number and value of outstanding shares of Common Stock of the Corporation shall be determined by the Board of Directors of the Corporation in good faith, which determination shall be conclusive for all purposes.

Common Stock Constructive Ownership Event. The term “Common Stock Constructive Ownership Event” shall have the meaning set forth in Section 6.6.1(c).

Constructive Ownership. The term “Constructive Ownership” shall mean ownership of Capital Stock by a Person who is or would be an actual owner of Capital Stock or who is or would be treated as a constructive owner of such shares through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms “Constructive Owner,” “Constructively Owns” and “Constructively Owned” shall have the correlative meanings.

Conversion. The term “Conversion” shall mean a conversion of shares of Preferred Stock into shares of Common Stock, as provided in any applicable provisions hereof or any articles supplementary governing any class or series of the outstanding Preferred Stock.

Conversion Holder. The term “Conversion Holder” shall mean any Person who is the Beneficial or Constructive Owner of shares of Common Stock in excess of the Common Stock Ownership Limit by reason of the Conversion of (or the right to convert) shares of Preferred Stock into shares of Common Stock.

Market Price. The term “Market Price” on any date shall mean, with respect to any class or series of outstanding shares of Capital Stock, the Closing Price for such Capital Stock on such date. The “Closing Price” on any date shall mean the last sale price for such Capital Stock, regular way, or, in case no such sale takes place on such day, the average of the

closing bid and asked prices, regular way, for such Capital Stock in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the NYSE or, if such Capital Stock is not listed or admitted to trading on the NYSE, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Capital Stock is listed or admitted to trading or, if such Capital Stock is not listed or admitted to trading on any national securities exchange, the last quoted price, or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or, if such system is no longer in use, the principal other automated quotation system that may then be in use or, if such Capital Stock is not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such Capital Stock selected by the Board of Directors of the Corporation.

NYSE. The term “NYSE” shall mean the New York Stock Exchange.

Person. The term “Person” shall mean an individual, corporation, partnership, estate, trust (including a trust qualified under Sections 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity.

Preferred Stock Affected Persons. The term “Preferred Stock Affected Persons” shall have the meaning set forth in Section 6.8.1(c) herein.

Preferred Stock Constructive Ownership Event. The term “Preferred Stock Constructive Ownership Event” shall have the meaning set forth in Section 6.8.1(c).

Preferred Stock Ownership Limit. The term “Preferred Stock Ownership Limit” shall mean not more than 5.0% (in value or in number of shares, whichever is more restrictive) of any class or series of the outstanding Preferred Stock of the Corporation. Notwithstanding the foregoing, if the Corporation issues additional series of Preferred Stock, the Board of Directors of the Corporation may increase or decrease the Preferred Stock Ownership Limit for any such additional series of Preferred Stock when issued, provided such action does not jeopardize the Corporation’s status as a REIT. The number and value of outstanding shares of any class or series of the outstanding Preferred Stock of the Corporation shall be determined by the Board of Directors of the Corporation in good faith, which determination shall be conclusive for all purposes.

Purported Beneficial Transferee. The term “Purported Beneficial Transferee” shall mean, with respect to any purported Transfer or Acquisition which results in a transfer to a Trust, as provided in Section 6.7 or Section 6.9, the purported beneficial transferee for whom the Purported Record Transferee would have acquired shares of Capital Stock if such Transfer or Acquisition had not violated the provisions of Sections 6.6.1 or 6.8.1. The Purported Beneficial Transferee and the Purported Record Transferee may be the same Person.

Purported Record Transferee. The term “Purported Record Transferee” shall mean, with respect to any purported Transfer or Acquisition which results in a transfer to a Trust, as provided in Section 6.7 or Section 6.9, the Person who would have been the record holder of the Capital Stock if such Transfer or Acquisition had not violated the provisions of Sections 6.6.1 or 6.8.1. The Purported Beneficial Transferee and the Purported Record Transferee may be the same Person.

REIT. The term “REIT” shall mean a real estate investment trust within the meaning of Section 856 of the Code.

Restriction Termination Date. The term “Restriction Termination Date” shall mean the first day on which the Corporation determines pursuant to Section 7.1 hereof that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT or that compliance with the restrictions and limitations on Beneficial Ownership, Constructive Ownership and Transfers and Acquisitions of shares of Capital Stock set forth herein is no longer required in order for the Corporation to qualify as a REIT.

Transfer. The term “Transfer” shall mean any sale, transfer, gift, assignment, devise or other disposition of Capital Stock or the right to vote or receive dividends on Capital Stock, including without limitation, (i) the granting of any option or entering into any agreement for the sale transfer or other disposition of Capital Stock or the right to vote or receive dividends on Capital Stock or (ii) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Capital Stock, in each case whether voluntary or involuntary, whether of record or Beneficially or Constructively Owned (including without limitation Transfers of interests in other entities which result in changes in Beneficial or Constructive Ownership of Capital Stock), and whether by operation of law or otherwise. The terms “Transferring” and “Transferred” shall have the correlative meanings.

Trust. The term “Trust” shall mean each of the trusts provided for in Sections 6.7.1 and 6.9.1.

Trustee. The term “Trustee” shall mean the Person unaffiliated with the Corporation, or the Purported Beneficial Transferee, or the Purported Record Transferee, that is appointed by the Corporation to serve as trustee of the Trust.

SECOND: The Corporation hereby further amends its charter as currently in effect by renumbering Article VII as Article IX and Article VIII as Article X.

THIRD: The amendment to the charter of the Corporation as set forth above has been duly advised by the Board of Directors and approved by the stockholders of the Corporation as required by law.

FOURTH: The undersigned President acknowledges these Articles of Amendment to be the corporate act of the Corporation and as to all matters or facts required to be verified under oath, the undersigned President acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

Dated: August 1, 2001

/s/ Randi Young Filip

Secretary

/s/ Leo Liebowitz

President

GETTY REALTY CORP.

CORPORATE

SEAL

MARYLAND

EXHIBIT 10.1 RETIREMENT AND PROFIT SHARING PLAN (AMENDED AND RESTATED AS OF JANUARY 1, 2002), ADOPTED BY THE COMPANY ON SEPTEMBER 3, 2002.

MARKLEY ACTUARIAL SERVICES, INC.
DEFINED CONTRIBUTION PROTOTYPE PLAN AND TRUST

DEFINED CONTRIBUTION PLAN

TABLE OF CONTENTS

ARTICLE I
DEFINITIONS

ARTICLE II
ADMINISTRATION


2.1	POWERS AND RESPONSIBILITIES OF THE EMPLOYER	12
2.2	DESIGNATION OF ADMINISTRATIVE AUTHORITY	13
2.3	ALLOCATION AND DELEGATION OF RESPONSIBILITIES	13
2.4	POWERS AND DUTIES OF THE ADMINISTRATOR	13
2.5	RECORDS AND REPORTS	14
2.6	APPOINTMENT OF ADVISERS	14
2.7	INFORMATION FROM EMPLOYER	14
2.8	PAYMENT OF EXPENSES	14
2.9	MAJORITY ACTIONS	14
2.10	CLAIMS PROCEDURE	15
2.11	CLAIMS REVIEW PROCEDURE	15

ARTICLE III ELIGIBILITY

3.1	CONDITIONS OF ELIGIBILITY	15
3.2	EFFECTIVE DATE OF PARTICIPATION	15
3.3	DETERMINATION OF ELIGIBILITY	16
3.4	TERMINATION OF ELIGIBILITY	16
3.5	REHIRED EMPLOYEES AND BREAKS IN SERVICE	16
3.6	ELECTION NOT TO PARTICIPATE	17
3.7	CONTROL OF ENTITIES BY OWNER-EMPLOYEE	17

ARTICLE IV CONTRIBUTION AND ALLOCATION

4.1	FORMULA FOR DETERMINING EMPLOYER’S CONTRIBUTION	17
4.2	TIME OF PAYMENT OF EMPLOYER’S CONTRIBUTION	17
4.3	ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS	17
4.4	MAXIMUM ANNUAL ADDITIONS	22
4.5	ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS	25
4.6	ROLLOVERS	26
4.7	PLAN TO PLAN TRANSFERS

	FROM QUALIFIED PLANS	27
4.8	VOLUNTARY EMPLOYEE CONTRIBUTIONS	27
4.9	QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTIONS	28
4.10	DIRECTED INVESTMENT ACCOUNT	28
4.11	INTEGRATION IN MORE THAN ONE PLAN	30
4.12	QUALIFIED MILITARY SERVICE	30

DEFINED CONTRIBUTION PLAN


ARTICLE V VALUATIONS

5.1	VALUATION OF THE TRUST FUND	30
5.2	METHOD OF VALUATION	30

ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS

6.1	DETERMINATION OF BENEFITS UPON RETIREMENT	30
6.2	DETERMINATION OF BENEFITS UPON DEATH	30
6.3	DETERMINATION OF BENEFITS IN EVENT OF DISABILITY	31
6.4	DETERMINATION OF BENEFITS UPON TERMINATION	32
6.5	DISTRIBUTION OF BENEFITS	33
6.6	DISTRIBUTION OF BENEFITS UPON DEATH	37
6.7	TIME OF DISTRIBUTION	40
6.8	DISTRIBUTION FOR MINOR OR INCOMPETENT BENEFICIARY	40
6.9	LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN	40
6.10	IN-SERVICE DISTRIBUTION	40
6.11	ADVANCE DISTRIBUTION FOR HARDSHIP	41
6.12	SPECIAL RULE FOR CERTAIN PROFIT SHARING PLANS	41
6.13	QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION	42
6.14	DIRECT ROLLOVERS	42
6.15	TRANSFER OF ASSETS FROM A MONEY PURCHASE PLAN	42
6.16	ELECTIVE TRANSFERS OF BENEFITS TO OTHER PLANS	43

ARTICLE VII TRUSTEE AND CUSTODIAN

7.1	BASIC RESPONSIBILITIES OF THE TRUSTEE	43
7.2	INVESTMENT POWERS AND DUTIES OF DISCRETIONARY TRUSTEE	44
7.3	INVESTMENT POWERS AND DUTIES OF NONDISCRETIONARY TRUSTEE	46
7.4	POWERS AND DUTIES OF CUSTODIAN	47
7.5	LIFE INSURANCE	48
7.6	LOANS TO PARTICIPANTS	48
7.7	MAJORITY ACTIONS	49
7.8	TRUSTEE’S COMPENSATION AND EXPENSES AND TAXES	49
7.9	ANNUAL REPORT OF THE TRUSTEE	50
7.10	AUDIT	50
7.11	RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE	50
7.12	TRANSFER OF INTEREST	51
7.13	TRUSTEE INDEMNIFICATION	51
7.14	EMPLOYER SECURITIES AND REAL PROPERTY	51

ARTICLE VIII AMENDMENT, TERMINATION AND MERGERS

8.1	AMENDMENT	51

DEFINED CONTRIBUTION PLAN


8.2	TERMINATION	52
8.3	MERGER, CONSOLIDATION OR TRANSFER OF ASSETS	52


ARTICLE IX TOP HEAVY PROVISIONS

9.1	TOP HEAVY PLAN REQUIREMENTS	52
9.2	DETERMINATION OF TOP HEAVY STATUS	53

ARTICLE X MISCELLANEOUS

10.1	EMPLOYER ADOPTIONS	54
10.2	PARTICIPANT’S RIGHTS	54
10.3	ALIENATION	54
10.4	CONSTRUCTION OF PLAN	55
10.5	GENDER AND NUMBER	55
10.6	LEGAL ACTION	55
10.7	PROHIBITION AGAINST DIVERSION OF FUNDS	55
10.8	EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE	55
10.9	INSURER’S PROTECTIVE CLAUSE	55
10.10	RECEIPT AND RELEASE FOR PAYMENTS	56
10.11	ACTION BY THE EMPLOYER	56
10.12	NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY	56
10.13	HEADINGS	56
10.14	APPROVAL BY INTERNAL REVENUE SERVICE	56
10.15	UNIFORMITY	56
10.16	PAYMENT OF BENEFITS	56

ARTICLE XI PARTICIPATING EMPLOYERS

11.1	ELECTION TO BECOME A PARTICIPATING EMPLOYER	57
11.2	REQUIREMENTS OF PARTICIPATING EMPLOYERS	57
11.3	DESIGNATION OF AGENT	57
11.4	EMPLOYEE TRANSFERS	57
11.5	PARTICIPATING EMPLOYER’S CONTRIBUTION AND FORFEITURES	57
11.6	AMENDMENT	57
11.7	DISCONTINUANCE OF PARTICIPATION	57
11.8	ADMINISTRATOR’S AUTHORITY	58
11.9	PARTICIPATING EMPLOYER CONTRIBUTION FOR AFFILIATE	58

ARTICLE XII CASH OR DEFERRED PROVISIONS

12.1	FORMULA FOR DETERMINING EMPLOYER’S CONTRIBUTION	58
12.2	PARTICIPANT’S SALARY REDUCTION ELECTION	59
12.3	ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS	61

iii

DEFINED CONTRIBUTION PLAN


12.4	ACTUAL DEFERRAL PERCENTAGE TESTS	62
12.5	ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS	64
12.6	ACTUAL CONTRIBUTION PERCENTAGE TESTS	66
12.7	ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS	68
12.8	SAFE HARBOR PROVISIONS	71
12.9	ADVANCE DISTRIBUTION FOR HARDSHIP	72

ARTICLE XIII SIMPLE 401(K) PROVISIONS

13.1	SIMPLE 401(k) PROVISIONS	73
13.2	DEFINITIONS	74
13.3	CONTRIBUTIONS	74
13.4	ELECTION AND NOTICE REQUIREMENTS	74
13.5	VESTING REQUIREMENTS	75
13.6	TOP-HEAVY RULES	75
13.7	NONDISCRIMINATION TESTS	75

DEFINED CONTRIBUTION PLAN

ARTICLE I
DEFINITIONS

As used in this Plan, the following words and phrases shall have the meanings set forth herein unless a different meaning is clearly required by the context:

1.1 “ACP” means the “Actual Contribution Percentage” determined pursuant to Section 12.6(e).

1.2 “ACT” means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

1.3 “ADP” means the “Actual Deferral Percentage” determined pursuant to Section 12.4(e).

1.4 “ADMINISTRATOR” means the Employer unless another person or entity has been designated by the Employer pursuant to Section 2.2 to administer the Plan on behalf of the Employer.

1.5 “ADOPTION AGREEMENT” means the separate agreement which is executed by the Employer and sets forth the elective provisions of this Plan and Trust as specified by the Employer.

1.6 “AFFILIATED EMPLOYER” means any corporation which is a member of a controlled group of corporations (as defined in Code Section 414(b)) which includes the Employer; any trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)) with the Employer; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes the Employer; and any other entity required to be aggregated with the Employer pursuant to Regulations under Code Section 414(o).

1.7 “ANNIVERSARY DATE” means the last day of the Plan Year.

1.8 “ANNUITY STARTING DATE” means, with respect to any Participant, the first day of the first period for which an amount is paid as an annuity, or, in the case of a benefit not payable in the form of an annuity, the first day on which all events have occurred which entitles the Participant to such benefit.

1.9 “BENEFICIARY” means the person (or entity) to whom all or a portion of a deceased Participant’s interest in the Plan is payable, subject to the restrictions of Sections 6.2 and 6.6.

1.10 “CODE” means the Internal Revenue Code of 1986, as amended.

1.11 “COMPENSATION” with respect to any Participant means one of the following as elected in the Adoption Agreement:


	(a) Information required to be reported under Code Sections 6041, 6051 and 6052 (Wages, tips and other compensation as reported on Form W-2). Compensation means wages, within the meaning of Code Section 3401(a), and all other payments of compensation to an Employee by the Employer (in the course of the Employer’s trade or business) for which the Employer is required to furnish the Employee a written statement under Code Sections 6041(d), 6051(a)(3) and 6052. Compensation must be determined without regard to any rules under Code Section 3401(a) that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)).

	(b) Code Section 3401(a) Wages. Compensation means an Employee’s wages within the meaning of Code Section 3401(a) for the purposes of income tax withholding at the source but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Code Section 3401(a)(2)).

	(c) 415 Safe-Harbor Compensation. Compensation means wages, salaries, and fees for professional services and other amounts received (without regard to whether or not an amount is paid in cash) for personal services actually rendered in the course of employment with the Employer maintaining the Plan to the extent that the amounts are includible in gross income (including, but not limited to, commissions paid salespersons, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits, and reimbursements, or other expense allowances under a nonaccountable plan (as described in Regulation 1.62-2(c))), and excluding the following:


	(1) Employer contributions to a plan of deferred compensation which are not includible in the Employee’s gross income for the taxable year in which contributed, or Employer contributions under a simplified employee pension plan to the extent such contributions are excludable from the Employee’s gross income, or any distributions from a plan of deferred compensation;

DEFINED CONTRIBUTION PLAN


	(2) Amounts realized from the exercise of a nonqualified stock option, or when restricted stock (or property) held by the Employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture;

	(3) Amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and

	(4) Other amounts which receive special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in Code Section 403(b) (whether or not the contributions are actually excludable from the gross income of the Employee).

However, Compensation for any Self-Employed Individual shall be equal to Earned Income. Compensation shall include only that Compensation which is actually paid to the Participant during the determination period. Except as otherwise provided in this Plan, the determination period shall be the period elected by the Employer in the Adoption Agreement. If the Employer makes no election, the determination period shall be the Plan Year.

Notwithstanding the above, if elected in the Adoption Agreement, Compensation shall include all of the following types of elective contributions and all of the following types of deferred compensation:


	(a) Elective contributions that are made by the Employer on behalf of a Participant that are not includible in gross income under Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b), and for Plan Years beginning on or after January 1, 2001 (or as of a date, no earlier than January 1, 1998, as specified in an addendum to the Adoption Agreement), 132(f)(4);

	(b) Compensation deferred under an eligible deferred compensation plan within the meaning of Code Section 457(b); and

	(c) Employee contributions (under governmental plans) described in Code Section 414(h)(2) that are picked up by the employing unit and thus are treated as Employer contributions.

For Plan Years beginning on or after January 1, 1989, and before January 1, 1994, the annual Compensation of each Participant taken into account for determining all benefits provided under the Plan for any Plan Year shall not exceed $200,000. This limitation shall be adjusted by the Secretary at the same time and in the same manner as under Code Section 415(d), except that the dollar increase in effect on January 1 of any calendar year is effective for Plan Years beginning in such calendar year and the first adjustment to the $200,000 limitation is effective on January 1, 1990.

For Plan Years beginning on or after January 1, 1994, Compensation in excess of $150,000 (or such other amount provided in the Code) shall be disregarded for all purposes other than for purposes of salary deferral elections. Such amount shall be adjusted by the Commissioner for increases in the cost-of-living in accordance with Code Section 401(a)(17)(B). The cost-of-living adjustment in effect for a calendar year applies to any determination period beginning in such calendar year. If a determination period consists of fewer than twelve (12) months, the $150,000 annual Compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is twelve (12).

If Compensation for any prior determination period is taken into account in determining a Participant’s allocations for the current Plan Year, the Compensation for such prior determination period is subject to the applicable annual Compensation limit in effect for that prior period. For this purpose, in determining allocations in Plan Years beginning on or after January 1, 1989, the annual compensation limit in effect for determination periods beginning before that date is $200,000. In addition, in determining allocations in Plan Years beginning on or after January 1, 1994, the annual Compensation limit in effect for determination periods beginning before that date is $150,000.

Notwithstanding the foregoing, except as otherwise elected in a non-standardized Adoption Agreement, the family member aggregation rules of Code Sections 401(a)(17) and 414(q)(6) as in effect prior to the enactment of the Small Business Job Protection Act of 1996 shall not apply to this Plan effective with respect to Plan Years beginning after December 31, 1996.

If, in the Adoption Agreement, the Employer elects to exclude a class of Employees from the Plan, then Compensation for any Employee who becomes eligible or ceases to be eligible to participate during a determination period shall only include Compensation while the Employee is an Eligible Employee.

If, in connection with the adoption of any amendment, the definition of Compensation has been modified, then, except as otherwise provided herein, for Plan Years prior to the Plan Year which includes the adoption date of such amendment, Compensation means compensation determined pursuant to the terms of the Plan then in effect.

DEFINED CONTRIBUTION PLAN

1.12 “CONTRACT” OR “POLICY” means any life insurance policy, retirement income policy, or annuity contract (group or individual) issued by the Insurer. In the event of any conflict between the terms of this Plan and the terms of any contract purchased hereunder, the Plan provisions shall control.

1.13 “DESIGNATED INVESTMENT ALTERNATIVE” means a specific investment identified by name by the Employer (or such other Fiduciary who has been given the authority to select investment options) as an available investment under the Plan to which Plan assets may be invested by the Trustee pursuant to the investment direction of a Participant.

1.14 “DIRECTED INVESTMENT OPTION” means a Designated Investment Alternative and any other investment permitted by the Plan and the Participant Direction Procedures to which Plan assets may be invested pursuant to the investment direction of a Participant.

1.15 “EARLY RETIREMENT DATE” means the date specified in the Adoption Agreement on which a Participant or Former Participant has satisfied the requirements specified in the Adoption Agreement (Early Retirement Age). If elected in the Adoption Agreement, a Participant shall become fully Vested upon satisfying such requirements if the Participant is still employed at the Early Retirement Age.

A Former Participant who separates from service after satisfying any service requirement but before satisfying the age requirement for Early Retirement Age and who thereafter reaches the age requirement contained herein shall be entitled to receive benefits under this Plan (other than any accelerated vesting and allocations of Employer Contributions) as though the requirements for Early Retirement Age had been satisfied.

1.16 “EARNED INCOME” means the net earnings from self-employment in the trade or business with respect to which the Plan is established, for which the personal services of the individual are a material income-producing factor. Net earnings will be determined without regard to items not included in gross income and the deductions allocable to such items. Net earnings are reduced by contributions made by the Employer to a qualified plan to the extent deductible under Code Section 404. In addition, net earnings shall be determined with regard to the deduction allowed to the taxpayer by Code Section 164(f), for taxable years beginning after December 31, 1989.

1.17 “ELECTIVE DEFERRALS” means the Employer’s contributions to the Plan that are made pursuant to a Participant’s deferral election pursuant to Section 12.2, excluding any such amounts distributed as “excess annual additions” pursuant to Section 4.5. Elective Deferrals shall be subject to the requirements of Sections 12.2(b) and 12.2(c) and shall, except as otherwise provided herein, be required to satisfy the nondiscrimination requirements of Regulation 1.401(k)-1(b)(2), the provisions of which are specifically incorporated herein by reference.

1.18 “ELIGIBLE EMPLOYEE” means any Eligible Employee as elected in the Adoption Agreement and as provided herein. With respect to a non-standardized Adoption Agreement, an individual shall not be an “Eligible Employee” if such individual is not reported on the payroll records of the Employer as a common law employee. In particular, it is expressly intended that individuals not treated as common law employees by the Employer on its payroll records are not “Eligible Employees” and are excluded from Plan participation even if a court or administrative agency determines that such individuals are common law employees and not independent contractors. Furthermore, with respect to a non-standardized Adoption Agreement, Employees of an Affiliated Employer will not be treated as “Eligible Employees” prior to the date the Affiliated Employer adopts the Plan as a Participating Employer.

Except as otherwise provided in this paragraph, if the Employer does not elect in the Adoption Agreement to include Employees who became Employees as the result of a “Code Section 410(b)(6)(C) transaction,” then such Employees will only be “Eligible Employees” after the expiration of the transition period beginning on the date of the transaction and ending on the last day of the first Plan Year beginning after the date of the transaction. A “Code Section 410(b)(6)(C) transaction” is an asset or stock acquisition, merger, or similar transaction involving a change in the Employer of the Employees of a trade or business that is subject to the special rules set forth in Code Section 410(b)(6)(C). However, regardless of any election made in the Adoption Agreement, if a separate entity becomes an Affiliate Employer as the result of a “Code Section 410(b)(6)(C) transaction,” then Employees of such separate entity will not be treated as “Eligible Employees” prior to the date the entity adopts the Plan as a Participating Employer or, with respect to a standardized Adoption Agreement, if earlier, the expiration of the transition period set forth above.

If, in the Adoption Agreement, the Employer elects to exclude union employees, then Employees whose employment is governed by a collective bargaining agreement between the Employer and “employee representatives” under which retirement benefits were the subject of good faith bargaining and if two percent (2%) or less of the Employees covered pursuant to that agreement are professionals as defined in Regulation 1.410(b)-9, shall not be eligible to participate in this Plan. For this purpose, the term “employee representatives” does not include any organization more than half of whose members are employees who are owners, officers, or executives of the Employer.

If, in the Adoption Agreement, the Employer elects to exclude non-resident aliens, then Employees who are non-resident aliens (within the meaning of Code Section 7701(b)(1)(B)) who received no earned income (within the meaning of

DEFINED CONTRIBUTION PLAN

Code Section 911(d)(2)) from the Employer which constitutes income from sources within the United States (within the meaning of Code Section 861(a)(3)) shall not be eligible to participate in this Plan.

1.19 “EMPLOYEE” means any person who is employed by the Employer. The term “Employee” shall also include any person who is an employee of an Affiliated Employer and any Leased Employee deemed to be an Employee as provided in Code Section 414(n) or (o).

1.20 “EMPLOYER” means the entity specified in the Adoption Agreement, any successor which shall maintain this Plan and any predecessor which has maintained this Plan. In addition, unless the context means otherwise, the term “Employer” shall include any Participating Employer (as defined in Section 11.1) which shall adopt this Plan.

1.21 “EXCESS AGGREGATE CONTRIBUTIONS” means, with respect to any Plan Year, the excess of:


	(a) The aggregate “Contribution Percentage Amounts” (as defined in Section 12.6) actually made on behalf of Highly Compensated Participants for such Plan Year and taken into account in computing the numerator of the ACP, over

	(b) The maximum “Contribution Percentage Amounts” permitted by the ACP test in Section 12.6 (determined by reducing contributions made on behalf of Highly Compensated Participants in order of their “Contribution Percentages” beginning with the highest of such percentages).

Such determination shall be made after first taking into account corrections of any Excess Deferrals pursuant to Section 12.2 and then taking into account adjustments of any Excess Contributions pursuant to Section 12.5.

1.22 “EXCESS COMPENSATION” means, with respect to a Plan that is integrated with Social Security (permitted disparity), a Participant’s Compensation which is in excess of the integration level elected in the Adoption Agreement.

However, if Compensation is based on less than a twelve (12) month determination period, Excess Compensation shall be determined by reducing the integration level by a fraction, the numerator of which is the number of full months in the short period and the denominator of which is twelve (12).

1.23 “EXCESS CONTRIBUTIONS” means, with respect to any Plan Year, the excess of:


	(a) The aggregate amount of Employer contributions actually made on behalf of Highly Compensated Participants for such Plan Year and taken into account in computing the numerator of the ADP, over

	(b) The maximum amount of such contributions permitted by the ADP test in Section 12.4 (determined by hypothetically reducing contributions made on behalf of Highly Compensated Participants in order of the actual deferral ratios, beginning with the highest of such ratios).

In determining the amount of Excess Contributions to be distributed and/or recharacterized with respect to an affected Highly Compensated Participant as determined herein, such amount shall be reduced by any Excess Deferrals previously distributed to such affected Highly Compensated Participant for the Participant’s taxable year ending with or within such Plan Year.

1.24 “EXCESS DEFERRALS” means, with respect to any taxable year of a Participant, those elective deferrals (within the meaning of Code Section 402(g)) that are includible in the Participant’s gross income under Code Section 402(g) to the extent such Participant’s elective deferrals for the taxable year exceed the dollar limitation under such Code Section. Excess Deferrals shall be treated as an “Annual Addition” pursuant to Section 4.4 when contributed to the Plan unless distributed to the affected Participant not later than the first April 15th following the close of the Participant’s taxable year in which the Excess Deferral was made. Additionally, for purposes of Sections 4.3(f) and 9.2, Excess Deferrals shall continue to be treated as Employer contributions even if distributed pursuant to Section 12.2(e). However, Excess Deferrals of Non-Highly Compensated Participants are not taken into account for purposes of Section 12.4.

1.25 “FIDUCIARY” means any person who (a) exercises any discretionary authority or discretionary control respecting management of the Plan or exercises any authority or control respecting management or disposition of its assets, (b) renders investment advice for a fee or other compensation, direct or indirect, with respect to any monies or other property of the Plan or has any authority or responsibility to do so, or (c) has any discretionary authority or discretionary responsibility in the administration of the Plan.

1.26 “FISCAL YEAR” means the Employer’s accounting year.

DEFINED CONTRIBUTION PLAN

1.27 “FORFEITURE” means, with respect to a Former Participant who has severed employment, that portion of the Participant’s Account that is not Vested. Unless otherwise elected in the Adoption Agreement, Forfeitures occur pursuant to (a) below.

(a) A Forfeiture will occur on the earlier of:


		(1) The last day of the Plan Year in which a Former Participant who has severed employment with the Employer incurs five (5) consecutive 1-Year Breaks in Service, or

		(2) The distribution of the entire Vested portion of the Participant’s Account of a Former Participant who has severed employment with the Employer. For purposes of this provision, if the Former Participant has a Vested benefit of zero, then such Former Participant shall be deemed to have received a distribution of such Vested benefit as of the year in which the severance of employment occurs.

	(b) If elected in the Adoption Agreement, a Forfeiture will occur as of the last day of the Plan Year in which the Former Participant incurs five (5) 1-Year Breaks in Service.

Regardless of the preceding provisions, if a Former Participant is eligible to share in the allocation of Employer contributions or Forfeitures in the year in which the Forfeiture would otherwise occur, then the Forfeiture will not occur until the end of the first Plan Year for which the Former Participant is not eligible to share in the allocation of Employer contributions or Forfeitures. Furthermore, the term “Forfeiture” shall also include amounts deemed to be Forfeitures pursuant to any other provision of this Plan.

1.28 “FORMER PARTICIPANT” means a person who has been a Participant, but who has ceased to be a Participant for any reason.

1.29 “414(s) COMPENSATION” means any definition of compensation that satisfies the nondiscrimination requirements of Code Section 414(s) and the Regulations thereunder. The period for determining 414(s) Compensation must be either the Plan Year or the calendar year ending with or within the Plan Year. An Employer may further limit the period taken into account to that part of the Plan Year or calendar year in which an Employee was a Participant in the component of the Plan being tested. The period used to determine 414(s) Compensation must be applied uniformly to all Participants for the Plan Year.

1.30 “415 COMPENSATION” means, with respect to any Participant, such Participant’s (a) Wages, tips and other compensation on Form W-2, (b) Section 3401(a) wages or (c) 415 safe-harbor compensation as elected in the Adoption Agreement for purposes of Compensation. 415 Compensation shall be based on the full Limitation Year regardless of when participation in the Plan commences. Furthermore, regardless of any election made in the Adoption Agreement, with respect to Limitation Years beginning after December 31, 1997, 415 Compensation shall include any elective deferral (as defined in Code Section 402(g)(3)) and any amount which is contributed or deferred by the Employer at the election of the Participant and which is not includible in the gross income of the Participant by reason of Code Section 125, 457, and, for Limitation Years beginning on or after January 1, 2001 (or as of a date, no earlier than January 1, 1998, as specified in an addendum to the Adoption Agreement), 132(f)(4). For Limitation Years beginning prior to January 1, 1998, 415 Compensation shall exclude such amounts.

Except as otherwise provided herein, if, in connection with the adoption of any amendment, the definition of 415 Compensation has been modified, then for Plan Years prior to the Plan Year which includes the adoption date of such amendment, 415 Compensation means compensation determined pursuant to the terms of the Plan then in effect.

1.31 “HIGHLY COMPENSATED EMPLOYEE” means, effective for Plan Years beginning after December 31, 1996, an Employee described in Code Section 414(q) and the Regulations thereunder, and generally means any Employee who:


	(a) was a “five percent (5%) owner” as defined in Section 1.37(c) at any time during the “determination year” or the “look-back year”; or

	(b) for the “look-back year” had 415 Compensation from the Employer in excess of $80,000 and, if elected in the Adoption Agreement, was in the Top-Paid Group for the “look-back year.” The $80,000 amount is adjusted at the same time and in the same manner as under Code Section 415(d), except that the base period is the calendar quarter ending September 30, 1996.

The “determination year” means the Plan Year for which testing is being performed and the “look-back year” means the immediately preceding twelve (12) month period. However, if the calendar year data election is made in the Adoption Agreement, for purposes of (b) above, the “look-back year” shall be the calendar year beginning within the twelve (12) month period immediately preceding the “determination year.” Notwithstanding the preceding sentence, if the calendar year data election is effective with respect to a Plan Year beginning in 1997, then for such Plan Year the “look-back year” shall be the calendar year ending with or within the Plan Year for which testing is being performed, and the “determination year” shall be the period of time, if any, which extends beyond the “look-back year” and ends on the last day of the Plan Year for which testing is being performed.

DEFINED CONTRIBUTION PLAN

A highly compensated former employee is based on the rules applicable to determining highly compensated employee status as in effect for that “determination year,” in accordance with Regulation 1.414(q)-1T, A-4 and IRS Notice 97-45 (or any superseding guidance).

In determining whether an employee is a Highly Compensated Employee for a Plan Year beginning in 1997, the amendments to Code Section 414(q) stated above are treated as having been in effect for years beginning in 1996.

For purposes of this Section, for Plan Years beginning prior to January 1, 1998, the determination of 415 Compensation shall be made by including amounts that would otherwise be excluded from a Participant’s gross income by reason of the application of Code Sections 125, 402(e)(3), 402(h)(1)(B) and, for Plan Years beginning on or after January 1, 2001 (or as of a date, no earlier than January 1, 1998, as specified in an addendum to the Adoption Agreement), 132(f)(4), and, in the case of Employer contributions made pursuant to a salary reduction agreement, Code Section 403(b).

In determining who is a Highly Compensated Employee, Employees who are non-resident aliens and who received no earned income (within the meaning of Code Section 911(d)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. Additionally, all Affiliated Employers shall be taken into account as a single employer and Leased Employees within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased Employees are covered by a plan described in Code Section 414(n)(5) and are not covered in any qualified plan maintained by the Employer. The exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer’s retirement plans.

1.32 “HIGHLY COMPENSATED PARTICIPANT” means any Highly Compensated Employee who is eligible to participate in the component of the Plan being tested.

1.33 “HOUR OF SERVICE” means (1) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer for the performance of duties during the applicable computation period (these hours will be credited to the Employee for the computation period in which the duties are performed); (2) each hour for which an Employee is directly or indirectly compensated or entitled to compensation by the Employer (irrespective of whether the employment relationship has terminated) for reasons other than performance of duties (such as vacation, holidays, sickness, incapacity (including disability), jury duty, lay-off, military duty or leave of absence) during the applicable computation period (these hours will be calculated and credited pursuant to Department of Labor regulation 2530.200b-2 which is incorporated herein by reference); (3) each hour for which back pay is awarded or agreed to by the Employer without regard to mitigation of damages (these hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made). The same Hours of Service shall not be credited both under (1) or (2), as the case may be, and under (3).

Notwithstanding (2) above, (i) no more than 501 Hours of Service are required to be credited to an Employee on account of any single continuous period during which the Employee performs no duties (whether or not such period occurs in a single computation period); (ii) an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable workers’ compensation, or unemployment compensation or disability insurance laws; and (iii) Hours of Service are not required to be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee. Furthermore, for purposes of (2) above, a payment shall be deemed to be made by or due from the Employer regardless of whether such payment is made by or due from the Employer directly, or indirectly through, among others, a trust fund, or insurer, to which the Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer, or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the aggregate.

Hours of Service will be credited for employment with all Affiliated Employers and for any individual considered to be a Leased Employee pursuant to Code Section 414(n) or 414(o) and the Regulations thereunder. Furthermore, the provisions of Department of Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.

Hours of Service will be determined on the basis of the method elected in the Adoption Agreement.

1.34 “INSURER” means any legal reserve insurance company which has issued or shall issue one or more Contracts or Policies under the Plan.

1.35 “INVESTMENT MANAGER” means a Fiduciary as described in Act Section 3(38).

1.36 “JOINT AND SURVIVOR ANNUITY” means an annuity for the life of a Participant with a survivor annuity for the life of the Participant’s spouse which is not less than fifty percent (50%), nor more than one-hundred percent (100%) of the amount of the annuity payable during the joint lives of the Participant and the Participant’s spouse which can be purchased with the Participant’s Vested interest in the Plan reduced by any outstanding loan balances pursuant to Section 7.6.

DEFINED CONTRIBUTION PLAN

1.37 “KEY EMPLOYEE” means an Employee as defined in Code Section 416(i) and the Regulations thereunder. Generally, any Employee or former Employee (as well as each of such Employee’s or former Employee’s Beneficiaries) is considered a Key Employee if, the individual at any time during the Plan Year that contains the “Determination Date” (as defined in Section 9.2(c)) or any of the preceding four (4) Plan Years, has been included in one of the following categories:


	(a) an officer of the Employer (as that term is defined within the meaning of the Regulations under Code Section 416) having annual 415 Compensation greater than fifty percent (50%) of the amount in effect under Code Section 415(b)(1)(A) for any such Plan Year;

	(b) one of the ten Employees having annual 415 Compensation from the Employer for a Plan Year greater than the dollar limitation in effect under Code Section 415(c)(1)(A) for the calendar year in which such Plan Year ends and owning (or considered as owning within the meaning of Code Section 318) both more than one-half percent (1/2%) interest and the largest interests in the Employer;

	(c) a “five percent (5%) owner” of the Employer. “Five percent (5%) owner” means any person who owns (or is considered as owning within the meaning of Code Section 318) more than five percent (5%) of the value of the outstanding stock of the Employer or stock possessing more than five percent (5%) of the total combined voting power of all stock of the Employer or, in the case of an unincorporated business, any person who owns more than five percent (5%) of the capital or profits interest in the Employer; and

	(d) a “one percent (1%) owner” of the Employer having annual 415 Compensation from the Employer of more than $150,000. “One percent (1%) owner” means any person who owns (or is considered as owning within the meaning of Code Section 318) more than one percent (1%) of the value of the outstanding stock of the Employer or stock possessing more than one percent (1%) of the total combined voting power of all stock of the Employer or, in the case of an unincorporated business, any person who owns more than one percent (1%) of the capital or profits interest in the Employer.

In determining percentage ownership hereunder, employers that would otherwise be aggregated under Code Sections 414(b), (c), (m) and (o) shall be treated as separate employers. In determining whether an individual has 415 Compensation of more than $150,000, 415 Compensation from each employer required to be aggregated under Code Sections 414(b), (c), (m) and (o) shall be taken into account. Furthermore, for purposes of this Section, for Plan Years beginning prior to January 1, 1998, the determination of 415 Compensation shall be made by including amounts that would otherwise be excluded from a Participant’s gross income by reason of the application of Code Sections 125, 402(e)(3), 402(h)(1)(B) and, for Plan Years beginning on or after January 1, 2001 (or as of a date, no earlier than January 1, 1998, as specified in an addendum to the Adoption Agreement), 132(f)(4), and, in the case of Employer contributions made pursuant to a salary reduction agreement, Code Section 403(b).

1.38 “LATE RETIREMENT DATE” means the date of, or the first day of the month or the Anniversary Date coinciding with or next following, whichever corresponds to the election in the Adoption Agreement for the Normal Retirement Date, a Participant’s actual retirement after having reached the Normal Retirement Date.

1.39 “LEASED EMPLOYEE” means, effective with respect to Plan Years beginning on or after January 1, 1997, any person (other than an Employee of the recipient Employer) who, pursuant to an agreement between the recipient Employer and any other person or entity (“leasing organization”), has performed services for the recipient (or for the recipient and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are performed under primary direction or control by the recipient Employer. Contributions or benefits provided a Leased Employee by the leasing organization which are attributable to services performed for the recipient Employer shall be treated as provided by the recipient Employer. Furthermore, Compensation for a Leased Employee shall only include Compensation from the leasing organization that is attributable to services performed for the recipient Employer.

A Leased Employee shall not be considered an employee of the recipient Employer if: (a) such employee is covered by a money purchase pension plan providing: (1) a nonintegrated employer contribution rate of at least ten percent (10%) of compensation, as defined in Code Section 415(c)(3), but for Plan Years beginning prior to January 1, 1998, including amounts contributed pursuant to a salary reduction agreement which are excludable from the employee’s gross income under Code Sections 125, 402(e)(3), 402(h)(1)(B), 403(b), or for Plan Years beginning on or after January 1, 2001 (or as of a date, no earlier than January 1, 1998, as specified in an addendum to the Adoption Agreement), 132(f)(4), (2) immediate participation, and (3) full and immediate vesting; and (b) leased employees do not constitute more than twenty percent (20%) of the recipient Employer’s nonhighly compensated workforce.

1.40 “LIMITATION YEAR” means the determination period used to determine Compensation. However, the Employer may elect a different Limitation Year in the Adoption Agreement or by adopting a written resolution to such effect. All qualified plans maintained by the Employer must use the same Limitation Year. Furthermore, unless there is a change to a new Limitation Year, the Limitation Year will be a twelve (12) consecutive month period. In the case of an initial Limitation Year, the Limitation Year will be the twelve (12) consecutive month period ending on the last day of the period specified in the Adoption

DEFINED CONTRIBUTION PLAN

Agreement (or written resolution). If the Limitation Year is amended to a different twelve (12) consecutive month period, the new “Limitation Year” must begin on a date within the “Limitation Year” in which the amendment is made.

1.41 “NET PROFIT” means, with respect to any Fiscal Year, the Employer’s net income or profit for such Fiscal Year determined upon the basis of the Employer’s books of account in accordance with generally accepted accounting principles, without any reduction for taxes based upon income, or for contributions made by the Employer to this Plan and any other qualified plan.

1.42 “NON-ELECTIVE CONTRIBUTION” means the Employer’s contributions to the Plan other than Elective Deferrals, any Qualified Non-Elective Contributions and any Qualified Matching Contributions. Employer matching contributions which are not Qualified Matching Contributions shall be considered a Non-Elective Contribution for purposes of the Plan.

1.43 “NON-HIGHLY COMPENSATED PARTICIPANT” means any Participant who is not a Highly Compensated Employee. However, if pursuant to Sections 12.4 or 12.6 the prior year testing method is used to calculate the ADP or the ACP, a Non-Highly Compensated Participant shall be determined using the definition of Highly Compensated Employee in effect for the preceding Plan Year.

1.44 “NON-KEY EMPLOYEE” means any Employee or former Employee (and such Employee’s or former Employee’s Beneficiaries) who is not, and has never been, a Key Employee.

1.45 “NORMAL RETIREMENT AGE” means the age elected in the Adoption Agreement at which time a Participant’s Account shall be nonforfeitable (if the Participant is employed by the Employer on or after that date).

1.46 “NORMAL RETIREMENT DATE” means the date elected in the Adoption Agreement.

1.47 “1-YEAR BREAK IN SERVICE” means, if the Hour of Service Method is elected in the Adoption Agreement, the applicable computation period during which an Employee or former Employee has not completed more than 500 Hours of Service. Further, solely for the purpose of determining whether an Employee has incurred a 1-Year Break in Service, Hours of Service shall be recognized for “authorized leaves of absence” and “maternity and paternity leaves of absence.” For this purpose, Hours of Service shall be credited for the computation period in which the absence from work begins, only if credit therefore is necessary to prevent the Employee from incurring a 1-Year Break in Service, or, in any other case, in the immediately following computation period. The Hours of Service credited for a “maternity or paternity leave of absence” shall be those which would normally have been credited but for such absence, or, in any case in which the Administrator is unable to determine such hours normally credited, eight (8) Hours of Service per day. The total Hours of Service required to be credited for a “maternity or paternity leave of absence” shall not exceed the number of Hours of Service needed to prevent the Employee from incurring a 1-Year Break in Service.

“Authorized leave of absence” means an unpaid, temporary cessation from active employment with the Employer pursuant to an established nondiscriminatory policy, whether occasioned by illness, military service, or any other reason.

A “maternity or paternity leave of absence” means an absence from work for any period by reason of the Employee’s pregnancy, birth of the Employee’s child, placement of a child with the Employee in connection with the adoption of such child, or any absence for the purpose of caring for such child for a period immediately following such birth or placement.

If the Elapsed Time Method is elected in the Adoption Agreement, a “1-Year Break in Service” means a twelve (12) consecutive month period beginning on the severance from service date or any anniversary thereof and ending on the next succeeding anniversary of such date; provided, however, that the Employee or former Employee does not perform an Hour of Service for the Employer during such twelve (12) consecutive month period.

1.48 “OWNER-EMPLOYEE” means a sole proprietor who owns the entire interest in the Employer or a partner (or member in the case of a limited liability company treated as a partnership or sole proprietorship for federal income tax purposes) who owns more than ten percent (10%) of either the capital interest or the profits interest in the Employer and who receives income for personal services from the Employer.

1.49 “PARTICIPANT” means any Eligible Employee who has satisfied the requirements of Section 3.2 and has not for any reason become ineligible to participate further in the Plan.

1.50 “PARTICIPANT DIRECTED ACCOUNT” means that portion of a Participant’s interest in the Plan with respect to which the Participant has directed the investment in accordance with the Participant Direction Procedures.

1.51 “PARTICIPANT DIRECTION PROCEDURES” means such instructions, guidelines or policies, the terms of which are incorporated herein, as shall be established pursuant to Section 4.10 and observed by the Administrator and applied and provided to Participants who have Participant Directed Accounts.

DEFINED CONTRIBUTION PLAN

1.52 “PARTICIPANT’S ACCOUNT” means the account established and maintained by the Administrator for each Participant with respect to such Participant’s total interest under the Plan resulting from (a) the Employer’s contributions in the case of a Profit Sharing Plan or Money Purchase Plan, and (b) the Employer’s Non-Elective Contributions in the case of a 401(k) Profit Sharing Plan. Separate accountings shall be maintained with respect to that portion of a Participant’s Account attributable to Employer matching contributions and to Employer discretionary contributions made pursuant to Section 12.1(a)(3).

1.53 “PARTICIPANT’S COMBINED ACCOUNT” means the total aggregate amount of a Participant’s interest under the Plan resulting from Employer contributions (including Elective Deferrals).

1.54 “PARTICIPANT’S ELECTIVE DEFERRAL ACCOUNT” means the account established and maintained by the Administrator for each Participant with respect to such Participant’s total interest in the Plan resulting from Elective Deferrals. Amounts in the Participant’s Elective Deferral Account are nonforfeitable when made and are subject to the distribution restrictions of Section 12.2(c).

1.55 “PARTICIPANT’S ROLLOVER ACCOUNT” means the account established and maintained by the Administrator for each Participant with respect to such Participant’s interest in the Plan resulting from amounts transferred from another qualified plan or “conduit” Individual Retirement Account in accordance with Section 4.6.

1.56 “PARTICIPANT’S TRANSFER ACCOUNT” means the account established and maintained by the Administrator for each Participant with respect to the total interest in the Plan resulting from amounts transferred to this Plan from a direct plan-to-plan transfer in accordance with Section 4.7.

1.57 “PERIOD OF SERVICE” means the aggregate of all periods commencing with an Employee’s first day of employment or reemployment with the Employer or an Affiliated Employer and ending on the first day of a Period of Severance. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee will also receive partial credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days.

Periods of Service with any Affiliated Employer shall be recognized. Furthermore, Periods of Service with any predecessor employer that maintained this Plan shall be recognized. Periods of Service with any other predecessor employer shall be recognized as elected in the Adoption Agreement.

In determining Periods of Service for purposes of vesting under the Plan, Periods of Service will be excluded as elected in the Adoption Agreement and as specified in Section 3.5.

In the event the method of crediting service is amended from the Hour of Service Method to the Elapsed Time Method, an Employee will receive credit for a Period of Service consisting of:


	(a) A number of years equal to the number of Years of Service credited to the Employee before the computation period during which the amendment occurs; and

	(b) The greater of (1) the Periods of Service that would be credited to the Employee under the Elapsed Time Method for service during the entire computation period in which the transfer occurs or (2) the service taken into account under the Hour of Service Method as of the date of the amendment.

In addition, the Employee will receive credit for service subsequent to the amendment commencing on the day after the last day of the computation period in which the transfer occurs.

1.58 “PERIOD OF SEVERANCE” means a continuous period of time during which an Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service.

In the case of an individual who is absent from work for “maternity or paternity” reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first day of such absence shall not constitute a one year Period of Severance. For purposes of this paragraph, an absence from work for “maternity or paternity” reasons means an absence (a) by reason of the pregnancy of the individual, (b) by reason of the birth of a child of the individual, (c) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (d) for purposes of caring for such child for a period beginning immediately following such birth or placement.

1.59 “PLAN” means this instrument (hereinafter referred to as Markley Actuarial Services, Inc. Defined Contribution Prototype Plan and Trust Basic Plan Document #01) and the Adoption Agreement as adopted by the Employer, including all amendments thereto and any addendum which is specifically permitted pursuant to the terms of the Plan.

1.60 “PLAN YEAR” means the Plan’s accounting year as specified in the Adoption Agreement. Unless there is a Short Plan Year, the Plan Year will be a twelve-consecutive month period.

DEFINED CONTRIBUTION PLAN

1.61 “PRE-RETIREMENT SURVIVOR ANNUITY” means an immediate annuity for the life of a Participant’s spouse, the payments under which must be equal to the benefit which can be provided with the percentage, as specified in the Adoption Agreement, of the Participant’s Vested interest in the Plan as of the date of death. If no election is made in the Adoption Agreement, the percentage shall be equal to fifty percent (50%). Furthermore, if less than one hundred percent (100%) of the Participant’s Vested interest in the Plan is used to provide the Pre-Retirement Survivor Annuity, a proportionate share of each of the Participant’s accounts shall be used to provide the Pre-Retirement Survivor Annuity.

1.62 “QUALIFIED MATCHING CONTRIBUTION” means any Employer matching contributions that are made pursuant to Sections 12.1(a)(2) if elected in the Adoption Agreement, 12.5 and 12.7.

1.63 “QUALIFIED MATCHING CONTRIBUTION ACCOUNT” means the account established hereunder to which Qualified Matching Contributions are allocated. Amounts in the Qualified Matching Contribution Account are nonforfeitable when made and are subject to the distribution restrictions of Section 12.2(c).

1.64 “QUALIFIED NON-ELECTIVE CONTRIBUTION” means the Employer’s contributions to the Plan that are made pursuant to Sections 12.1(a)(4) if elected in the Adoption Agreement, 12.5 and 12.7.

1.65 “QUALIFIED NON-ELECTIVE CONTRIBUTION ACCOUNT” means the account established hereunder to which Qualified Non-Elective Contributions are allocated. Amounts in the Qualified Non-Elective Contribution Account are nonforfeitable when made and are subject to the distribution restrictions of Section 12.2(c).

1.66 “QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTION ACCOUNT” means the account established hereunder to which a Participant’s tax deductible qualified voluntary employee contributions made pursuant to Section 4.9 are allocated.

1.67 “REGULATION” means the Income Tax Regulations as promulgated by the Secretary of the Treasury or a delegate of the Secretary of the Treasury, and as amended from time to time.

1.68 “RETIRED PARTICIPANT” means a person who has been a Participant, but who has become entitled to retirement benefits under the Plan.

1.69 “RETIREMENT DATE” means the date as of which a Participant retires for reasons other than Total and Permanent Disability, regardless of whether such retirement occurs on a Participant’s Normal Retirement Date, Early Retirement Date or Late Retirement Date (see Section 6.1).

1.70 “SELF-EMPLOYED INDIVIDUAL” means an individual who has Earned Income for the taxable year from the trade or business for which the Plan is established, and, also, an individual who would have had Earned Income but for the fact that the trade or business had no net profits for the taxable year. A Self-Employed Individual shall be treated as an Employee.

1.71 “SHAREHOLDER-EMPLOYEE” means a Participant who owns (or is deemed to own pursuant to Code Section 318(a)(1)) more than five percent (5%) of the Employer’s outstanding capital stock during any year in which the Employer elected to be taxed as a Small Business Corporation (S Corporation) under the applicable Code sections relating to Small Business Corporations.

1.72 “SHORT PLAN YEAR” means, if specified in the Adoption Agreement, a Plan Year of less than a twelve (12) month period. If there is a Short Plan Year, the following rules shall apply in the administration of this Plan. In determining whether an Employee has completed a Year of Service (or Period of Service if the Elapsed Time Method is used) for benefit accrual purposes in the Short Plan Year, the number of the Hours of Service (or months of service if the Elapsed Time Method is used) required shall be proportionately reduced based on the number of days (or months) in the Short Plan Year. The determination of whether an Employee has completed a Year of Service (or Period of Service) for vesting and eligibility purposes shall be made in accordance with Department of Labor regulation 2530.203-2(c). In addition, if this Plan is integrated with Social Security, then the integration level shall be proportionately reduced based on the number of months in the Short Plan Year.

1.73 “SUPER TOP HEAVY PLAN” means a plan which would be a Top Heavy Plan if sixty percent (60%) is replaced with ninety percent (90%) in Section 9.2(a). However, effective as of the first Plan Year beginning after December 31, 1999, no Plan shall be considered a Super Top Heavy Plan.

1.74 “TAXABLE WAGE BASE” means, with respect to any Plan Year, the contribution and benefit base under Section 230 of the Social Security Act at the beginning of such Plan Year.

1.75 “TERMINATED PARTICIPANT” means a person who has been a Participant, but whose employment has been terminated other than by death, Total and Permanent Disability or retirement.

1.76 “TOP HEAVY PLAN” means a plan described in Section 9.2(a).

DEFINED CONTRIBUTION PLAN

1.77 “TOP HEAVY PLAN YEAR” means a Plan Year commencing after December 31, 1983, during which the Plan is a Top Heavy Plan.

1.78 “TOP-PAID GROUP” shall be determined pursuant to Code Section 414(q) and the Regulations thereunder and generally means the top twenty percent (20%) of Employees who performed services for the Employer during the applicable year, ranked according to the amount of 415 Compensation received from the Employer during such year. All Affiliated Employers shall be taken into account as a single employer, and Leased Employees shall be treated as Employees if required pursuant to Code Section 414(n) or (o). Employees who are non-resident aliens who received no earned income (within the meaning of Code Section 911(d)(2)) from the Employer constituting United States source income within the meaning of Code Section 861(a)(3) shall not be treated as Employees. Furthermore, for the purpose of determining the number of active Employees in any year, the following additional Employees may also be excluded, however, such Employees shall still be considered for the purpose of identifying the particular Employees in the Top-Paid Group:


	(a) Employees with less than six (6) months of service;

	(b) Employees who normally work less than 17 1/2 hours per week;

	(c) Employees who normally work less than six (6) months during a year; and

	(d) Employees who have not yet attained age twenty-one (21).

In addition, if ninety percent (90%) or more of the Employees of the Employer are covered under agreements the Secretary of Labor finds to be collective bargaining agreements between Employee representatives and the Employer, and the Plan covers only Employees who are not covered under such agreements, then Employees covered by such agreements shall be excluded from both the total number of active Employees as well as from the identification of particular Employees in the Top- Paid Group.

The foregoing exclusions set forth in this Section shall be applied on a uniform and consistent basis for all purposes for which the Code Section 414(q) definition is applicable. Furthermore, in applying such exclusions, the Employer may substitute any lesser service, hours or age.

1.79 “TOTAL AND PERMANENT DISABILITY” means the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months. The disability of a Participant shall be determined by a licensed physician chosen by the Administrator. However, if the condition constitutes total disability under the federal Social Security Acts, the Administrator may rely upon such determination that the Participant is Totally and Permanently Disabled for the purposes of this Plan. The determination shall be applied uniformly to all Participants.

1.80 “TRUSTEE” means the person or entity named in the Adoption Agreement, or any successors thereto.

If the sponsor of this prototype is a bank, savings and loan, trust company, credit union or similar institution, a person or entity other than the prototype sponsor (or its affiliates or subsidiaries) may not serve as Trustee without the written consent of the sponsor.

1.81 “TRUST FUND” means the assets of the Plan and Trust as the same shall exist from time to time.

1.82 “VALUATION DATE” means the date or dates specified in the Adoption Agreement. Regardless of any election to the contrary, the Valuation Date shall include the Anniversary Date and may include any other date or dates deemed necessary or appropriate by the Administrator for the valuation of Participants’ Accounts during the Plan Year, which may include any day that the Trustee, any transfer agent appointed by the Trustee or the Employer, or any stock exchange used by such agent, are open for business.

1.83 “VESTED” means the nonforfeitable portion of any account maintained on behalf of a Participant.

1.84 “VOLUNTARY CONTRIBUTION ACCOUNT” means the account established and maintained by the Administrator for each Participant with respect to such Participant’s total interest in the Plan resulting from the Participant’s after-tax voluntary Employee contributions made pursuant to Section 4.7.

Amounts recharacterized as after-tax voluntary Employee contributions pursuant to Section 12.5 shall remain subject to the limitations of Section 12.2. Therefore, a separate accounting shall be maintained with respect to that portion of the Voluntary Contribution Account attributable to after-tax voluntary Employee contributions made pursuant to Section 4.8.

1.85 “YEAR OF SERVICE” means the computation period of twelve (12) consecutive months, herein set forth, and during which an Employee has completed at least 1,000 Hours of Service (unless a lower number of Hours of Service is specified in the Adoption Agreement).

DEFINED CONTRIBUTION PLAN

For purposes of eligibility for participation, the initial computation period shall begin with the date on which the Employee first performs an Hour of Service (employment commencement date). The initial computation period beginning after a 1-Year Break in Service shall be measured from the date on which an Employee again performs an Hour of Service. Unless otherwise elected in the Adoption Agreement, the succeeding computation periods shall begin on the anniversary of the Employee’s employment commencement date. However, unless otherwise elected in the Adoption Agreement, if one (1) Year of Service or less is required as a condition of eligibility, then the computation period after the initial computation period shall shift to the current Plan Year which includes the anniversary of the date on which the Employee first performed an Hour of Service, and subsequent computation periods shall be the Plan Year. If there is a shift to the Plan Year, an Employee who is credited with the number of Hours of Service to be credited with a Year of Service in both the initial eligibility computation period and the first Plan Year which commences prior to the first anniversary of the Employee’s initial eligibility computation period will be credited with two (2) Years of Service for purposes of eligibility to participate.

If two (2) Years of Service are required as a condition of eligibility, a Participant will only have completed two (2) Years of Service for eligibility purposes upon completing two (2) consecutive Years of Service without an intervening 1-Year Break-in-Service.

For vesting purposes, and all other purposes not specifically addressed in this Section, the computation period shall be the period elected in the Adoption Agreement. If no election is made in the Adoption Agreement, the computation period shall be the Plan Year.

In determining Years of Service for purposes of vesting under the Plan, Years of Service will be excluded as elected in the Adoption Agreement and as specified in Section 3.5.

Years of Service and 1-Year Breaks in Service for eligibility purposes will be measured on the same eligibility computation period. Years of Service and 1-Year Breaks in Service for vesting purposes will be measured on the same vesting computation period.

Years of Service with any Affiliated Employer shall be recognized. Furthermore, Years of Service with any predecessor employer that maintained this Plan shall be recognized. Years of Service with any other predecessor employer shall be recognized as elected in the Adoption Agreement.

In the event the method of crediting service is amended from the Elapsed Time Method to the Hour of Service Method, an Employee will receive credit for Years of Service equal to:


	(a) The number of Years of Service equal to the number of 1-year Periods of Service credited to the Employee as of the date of the amendment; and

	(b) In the computation period which includes the date of the amendment, a number of Hours of Service (using the Hours of Service equivalency method elected in the Adoption Agreement) to any fractional part of a year credited to the Employee under this Section as of the date of the amendment.

ARTICLE II
ADMINISTRATION

2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER


	(a) In addition to the general powers and responsibilities otherwise provided for in this Plan, the Employer shall be empowered to appoint and remove the Trustee and the Administrator from time to time as it deems necessary for the proper administration of the Plan to ensure that the Plan is being operated for the exclusive benefit of the Participants and their Beneficiaries in accordance with the terms of the Plan, the Code, and the Act. The Employer may appoint counsel, specialists, advisers, agents (including any nonfiduciary agent) and other persons as the Employer deems necessary or desirable in connection with the exercise of its fiduciary duties under this Plan. The Employer may compensate such agents or advisers from the assets of the Plan as fiduciary expenses (but not including any business (settlor) expenses of the Employer), to the extent not paid by the Employer.

	(b) The Employer shall establish a “funding policy and method,” i.e., it shall determine whether the Plan has a short run need for liquidity (e.g., to pay benefits) or whether liquidity is a long run goal and investment growth (and stability of same) is a more current need, or shall appoint a qualified person to do so. If the Trustee has discretionary authority, the Employer or its delegate shall communicate such needs and goals to the Trustee, who shall coordinate such Plan needs with its investment policy. The communication of such a “funding policy and method” shall not, however, constitute a directive to the Trustee as to the investment of the Trust Funds. Such “funding policy and method” shall be consistent with the objectives of this Plan and with the requirements of Title I of the Act.

DEFINED CONTRIBUTION PLAN


	(c) The Employer may appoint, at its option, an Investment Manager, investment adviser, or other agent to provide direction to the Trustee with respect to any or all of the Plan assets. Such appointment shall be given by the Employer in writing in a form acceptable to the Trustee and shall specifically identify the Plan assets with respect to which the Investment Manager or other agent shall have the authority to direct the investment.

	(d) The Employer shall periodically review the performance of any Fiduciary or other person to whom duties have been delegated or allocated by it under the provisions of this Plan or pursuant to procedures established hereunder. This requirement may be satisfied by formal periodic review by the Employer or by a qualified person specifically designated by the Employer, through day-to-day conduct and evaluation, or through other appropriate ways.

2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY

The Employer may appoint one or more Administrators. If the Employer does not appoint an Administrator, the Employer will be the Administrator. Any person, including, but not limited to, the Employees of the Employer, shall be eligible to serve as an Administrator. Any person so appointed shall signify acceptance by filing written acceptance with the Employer. An Administrator may resign by delivering a written resignation to the Employer or be removed by the Employer by delivery of written notice of removal, to take effect at a date specified therein, or upon delivery to the Administrator if no date is specified. Upon the resignation or removal of an Administrator, the Employer may designate in writing a successor to this position.

2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES

If more than one person is appointed as Administrator, the responsibilities of each Administrator may be specified by the Employer and accepted in writing by each Administrator. In the event that no such delegation is made by the Employer, the Administrators may allocate the responsibilities among themselves, in which event the Administrators shall notify the Employer and the Trustee in writing of such action and specify the responsibilities of each Administrator. The Trustee thereafter shall accept and rely upon any documents executed by the appropriate Administrator until such time as the Employer or the Administrators file with the Trustee a written revocation of such designation.

2.4 POWERS AND DUTIES OF THE ADMINISTRATOR

The primary responsibility of the Administrator is to administer the Plan for the exclusive benefit of the Participants and their Beneficiaries, subject to the specific terms of the Plan. The Administrator shall administer the Plan in accordance with its terms and shall have the power and discretion to construe the terms of the Plan and determine all questions arising in connection with the administration, interpretation, and application of the Plan. Benefits under this Plan will be paid only if the Administrator decides in its discretion that the applicant is entitled to them. Any such determination by the Administrator shall be conclusive and binding upon all persons. The Administrator may establish procedures, correct any defect, supply any information, or reconcile any inconsistency in such manner and to such extent as shall be deemed necessary or advisable to carry out the purpose of the Plan; provided, however, that any procedure, discretionary act, interpretation or construction shall be done in a nondiscriminatory manner based upon uniform principles consistently applied and shall be consistent with the intent that the Plan continue to be deemed a qualified plan under the terms of Code Section 401(a), and shall comply with the terms of the Act and all regulations issued pursuant thereto. The Administrator shall have all powers necessary or appropriate to accomplish its duties under this Plan.

The Administrator shall be charged with the duties of the general administration of the Plan and the powers necessary to carry out such duties as set forth under the terms of the Plan, including, but not limited to, the following:


	(a) the discretion to determine all questions relating to the eligibility of an Employee to participate or remain a Participant hereunder and to receive benefits under the Plan;

	(b) the authority to review and settle all claims against the Plan, including claims where the settlement amount cannot be calculated or is not calculated in accordance with the Plan’s benefit formula. This authority specifically permits the Administrator to settle, in compromise fashion, disputed claims for benefits and any other disputed claims made against the Plan;

	(c) to compute, certify, and direct the Trustee with respect to the amount and the kind of benefits to which any Participant shall be entitled hereunder;

	(d) to authorize and direct the Trustee with respect to all discretionary or otherwise directed disbursements from the Trust Fund;

	(e) to maintain all necessary records for the administration of the Plan;

DEFINED CONTRIBUTION PLAN


	(f) to interpret the provisions of the Plan and to make and publish such rules for regulation of the Plan that are consistent with the terms hereof;

	(g) to determine the size and type of any Contract to be purchased from any Insurer, and to designate the Insurer from which such Contract shall be purchased;

	(h) to compute and certify to the Employer and to the Trustee from time to time the sums of money necessary or desirable to be contributed to the Plan;

	(i) to consult with the Employer and the Trustee regarding the short and long-term liquidity needs of the Plan in order that the Trustee can exercise any investment discretion (if the Trustee has such discretion), in a manner designed to accomplish specific objectives;

	(j) to prepare and implement a procedure for notifying Participants and Beneficiaries of their rights to elect Joint and Survivor Annuities and Pre-Retirement Survivor Annuities if required by the Plan, Code and Regulations thereunder;

	(k) to assist Participants regarding their rights, benefits, or elections available under the Plan;

	(l) to act as the named Fiduciary responsible for communicating with Participants as needed to maintain Plan compliance with Act Section 404(c) (if the Employer intends to comply with Act Section 404(c)) including, but not limited to, the receipt and transmission of Participants’ directions as to the investment of their accounts under the Plan and the formation of policies, rules, and procedures pursuant to which Participants may give investment instructions with respect to the investment of their accounts; and

	(m) to determine the validity of, and take appropriate action with respect to, any qualified domestic relations order received by it.

2.5 RECORDS AND REPORTS

The Administrator shall keep a record of all actions taken and shall keep all other books of account, records, and other data that may be necessary for proper administration of the Plan and shall be responsible for supplying all information and reports to the Internal Revenue Service, Department of Labor, Participants, Beneficiaries and others as required by law.

2.6 APPOINTMENT OF ADVISERS

The Administrator may appoint counsel, specialists, advisers, agents (including nonfiduciary agents) and other persons as the Administrator deems necessary or desirable in connection with the administration of this Plan, including but not limited to agents and advisers to assist with the administration and management of the Plan, and thereby to provide, among such other duties as the Administrator may appoint, assistance with maintaining Plan records and the providing of investment information to the Plan’s investment fiduciaries and, if applicable, to Plan Participants.

2.7 INFORMATION FROM EMPLOYER

The Employer shall supply full and timely information to the Administrator on all pertinent facts as the Administrator may require in order to perform its functions hereunder and the Administrator shall advise the Trustee of such of the foregoing facts as may be pertinent to the Trustee’s duties under the Plan. The Administrator may rely upon such information as is supplied by the Employer and shall have no duty or responsibility to verify such information.

2.8 PAYMENT OF EXPENSES

All expenses of administration may be paid out of the Trust Fund unless paid by the Employer. Such expenses shall include any expenses incident to the functioning of the Administrator, or any person or persons retained or appointed by any Named Fiduciary incident to the exercise of their duties under the Plan, including, but not limited to, fees of accountants, counsel, Investment Managers, agents (including nonfiduciary agents) appointed for the purpose of assisting the Administrator or Trustee in carrying out the instructions of Participants as to the directed investment of their accounts (if permitted) and other specialists and their agents, the costs of any bonds required pursuant to Act Section 412, and other costs of administering the Plan. Until paid, the expenses shall constitute a liability of the Trust Fund.

2.9 MAJORITY ACTIONS

Except where there has been an allocation and delegation of administrative authority pursuant to Section 2.3, if there is more than one Administrator, then they shall act by a majority of their number, but may authorize one or more of them to sign all papers on their behalf.

DEFINED CONTRIBUTION PLAN

2.10 CLAIMS PROCEDURE

Claims for benefits under the Plan may be filed in writing with the Administrator. Written notice of the disposition of a claim shall be furnished to the claimant within ninety (90) days after the application is filed, or such period as is required by applicable law or Department of Labor regulation. In the event the claim is denied, the reasons for the denial shall be specifically set forth in the notice in language calculated to be understood by the claimant, pertinent provisions of the Plan shall be cited, and, where appropriate, an explanation as to how the claimant can perfect the claim will be provided. In addition, the claimant shall be furnished with an explanation of the Plan’s claims review procedure.

2.11 CLAIMS REVIEW PROCEDURE

Any Employee, former Employee, or Beneficiary of either, who has been denied a benefit by a decision of the Administrator pursuant to Section 2.10 shall be entitled to request the Administrator to give further consideration to the claim by filing with the Administrator a written request for a hearing. Such request, together with a written statement of the reasons why the claimant believes such claim should be allowed, shall be filed with the Administrator no later than sixty (60) days after receipt of the written notification provided for in Section 2.10. The Administrator shall then conduct a hearing within the next sixty (60) days, at which the claimant may be represented by an attorney or any other representative of such claimant’s choosing and expense and at which the claimant shall have an opportunity to submit written and oral evidence and arguments in support of the claim. At the hearing (or prior thereto upon five (5) business days written notice to the Administrator) the claimant or the claimant’s representative shall have an opportunity to review all documents in the possession of the Administrator which are pertinent to the claim at issue and its disallowance. Either the claimant or the Administrator may cause a court reporter to attend the hearing and record the proceedings. In such event, a complete written transcript of the proceedings shall be furnished to both parties by the court reporter. The full expense of any such court reporter and such transcripts shall be borne by the party causing the court reporter to attend the hearing. A final decision as to the allowance of the claim shall be made by the Administrator within sixty (60) days of receipt of the appeal (unless there has been an extension of sixty (60) days due to special circumstances, provided the delay and the special circumstances occasioning it are communicated to the claimant within the sixty (60) day period). Such communication shall be written in a manner calculated to be understood by the claimant and shall include specific reasons for the decision and specific references to the pertinent Plan provisions on which the decision is based. Notwithstanding the preceding, to the extent any of the time periods specified in this Section are amended by law or Department of Labor regulation, then the time frames specified herein shall automatically be changed in accordance with such law or regulation.

If the Administrator, pursuant to the claims review procedure, makes a final written determination denying a Participant’s or Beneficiary’s benefit claim, then in order to preserve the claim, the Participant or Beneficiary must file an action with respect to the denied claim not later than one hundred eighty (180) days following the date of the Administrator’s final determination.

ARTICLE III
ELIGIBILITY

3.1 CONDITIONS OF ELIGIBILITY

Any Eligible Employee shall be eligible to participate hereunder on the date such Employee has satisfied the conditions of eligibility elected in the Adoption Agreement.

3.2 EFFECTIVE DATE OF PARTICIPATION

An Eligible Employee who has satisfied the conditions of eligibility pursuant to Section 3.1 shall become a Participant effective as of the date elected in the Adoption Agreement. If said Employee is not employed on such date, but is reemployed before a 1-Year Break in Service has occurred, then such Employee shall become a Participant on the date of reemployment or, if later, the date that the Employee would have otherwise entered the Plan had the Employee not terminated employment.

Unless specifically provided otherwise in the Adoption Agreement, an Eligible Employee who satisfies the Plan’s eligibility requirement conditions by reason of recognition of service with a predecessor employer will become a Participant as of the day the Plan credits service with a predecessor employer or, if later, the date the Employee would have otherwise entered the Plan had the service with the predecessor employer been service with the Employer.

If an Employee, who has satisfied the Plan’s eligibility requirements and would otherwise have become a Participant, shall go from a classification of a noneligible Employee to an Eligible Employee, such Employee shall become a Participant on the date such Employee becomes an Eligible Employee or, if later, the date that the Employee would have otherwise entered the Plan had the Employee always been an Eligible Employee.

If an Employee, who has satisfied the Plan’s eligibility requirements and would otherwise become a Participant, shall go from a classification of an Eligible Employee to a noneligible class of Employees, such Employee shall become a Participant in the Plan on the date such Employee again becomes an Eligible Employee, or, if later, the date that the

DEFINED CONTRIBUTION PLAN

Employee would have otherwise entered the Plan had the Employee always been an Eligible Employee. However, if such Employee incurs a 1-Year Break in Service, eligibility will be determined under the Break in Service rules set forth in Section 3.5.

3.3 DETERMINATION OF ELIGIBILITY

The Administrator shall determine the eligibility of each Employee for participation in the Plan based upon information furnished by the Employer. Such determination shall be conclusive and binding upon all persons, as long as the same is made pursuant to the Plan and the Act. Such determination shall be subject to review pursuant to Section 2.11.

3.4 TERMINATION OF ELIGIBILITY

In the event a Participant shall go from a classification of an Eligible Employee to an ineligible Employee, such Former Participant shall continue to vest in the Plan for each Year of Service (or Period of Service, if the Elapsed Time Method is used) completed while an ineligible Employee, until such time as the Participant’s Account is forfeited or distributed pursuant to the terms of the Plan. Additionally, the Former Participant’s interest in the Plan shall continue to share in the earnings of the Trust Fund in the same manner as Participants.

3.5 REHIRED EMPLOYEES AND BREAKS IN SERVICE


	(a) If any Participant becomes a Former Participant due to severance from employment with the Employer and is reemployed by the Employer before a 1-Year Break in Service occurs, the Former Participant shall become a Participant as of the reemployment date.

	(b) If any Participant becomes a Former Participant due to severance from employment with the Employer and is reemployed after a 1-Year Break in Service has occurred, Years of Service (or Periods of Service if the Elapsed Time Method is being used) shall include Years of Service (or Periods of Service if the Elapsed Time Method is being used) prior to the 1-Year Break in Service subject to the following rules:


	(1) In the case of a Former Participant who under the Plan does not have a nonforfeitable right to any interest in the Plan resulting from Employer contributions, Years of Service (or Periods of Service) before a period of 1-Year Breaks in Service will not be taken into account if the number of consecutive 1-Year Breaks in Service equals or exceeds the greater of (A) five (5) or (B) the aggregate number of pre-break Years of Service (or Periods of Service). Such aggregate number of Years of Service (or Periods of Service) will not include any Years of Service (or Periods of Service) disregarded under the preceding sentence by reason of prior 1-Year Breaks in Service;

	(2) A Former Participant who has not had Years of Service (or Periods of Service) before a 1-Year Break in Service disregarded pursuant to (1) above, shall participate in the Plan as of the date of reemployment, or if later, as of the date the Former Participant would otherwise enter the Plan pursuant to Sections 3.1 and 3.2 taking into account all service not disregarded.


	(c) After a Former Participant who has severed employment with the Employer incurs five (5) consecutive 1-Year Breaks in Service, the Vested portion of such Former Participant’s Account attributable to pre-break service shall not be increased as a result of post-break service. In such case, separate accounts will be maintained as follows:


	(1) one account for nonforfeitable benefits attributable to pre-break service; and

	(2) one account representing the Participant’s Employer-derived account balance in the Plan attributable to post-break service.

(d) If any Participant becomes a Former Participant due to severance of employment with the Employer and is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service, and such Former Participant had received a distribution of the entire Vested interest prior to reemployment, then the forfeited account shall be reinstated only if the Former Participant repays the full amount which had been distributed. Such repayment must be made before the earlier of five (5) years after the first date on which the Participant is subsequently reemployed by the Employer or the close of the first period of five (5) consecutive 1-Year Breaks in Service commencing after the distribution. If a distribution occurs for any reason other than a severance of employment, the time for repayment may not end earlier than five (5) years after the date of distribution. In the event the Former Participant does repay the full amount distributed, the undistributed forfeited portion of the Participant’s Account must be restored in full, unadjusted by any gains or losses occurring subsequent to the Valuation Date preceding the distribution. The source for such reinstatement may be Forfeitures occurring during the Plan Year. If such source is insufficient, then the Employer will contribute an amount which is sufficient to restore the Participant’s Account, provided, however, that if a discretionary contribution is made for such year, such contribution will first be applied to restore any such accounts and the

DEFINED CONTRIBUTION PLAN


	remainder shall be allocated in accordance with the terms of the Plan. If a non-Vested Former Participant was deemed to have received a distribution and such Former Participant is reemployed by the Employer before five (5) consecutive 1-Year Breaks in Service, then such Participant will be deemed to have repaid the deemed distribution as of the date of reemployment.

3.6 ELECTION NOT TO PARTICIPATE

An Employee may, subject to the approval of the Employer, elect voluntarily not to participate in the Plan. The election not to participate must be irrevocable and communicated to the Employer, in writing, within a reasonable period of time before the beginning of the first Plan Year. For standardized Plans, a Participant or an Eligible Employee may not elect not to participate.

3.7 CONTROL OF ENTITIES BY OWNER-EMPLOYEE

Effective with respect to Plan Years beginning after December 31, 1996, if this Plan provides contributions or benefits for one or more Owner-Employees, the contributions on behalf of any Owner-Employee shall be made only with respect to the Earned Income for such Owner-Employee which is derived from the trade or business with respect to which such Plan is established.

ARTICLE IV
CONTRIBUTION AND ALLOCATION

4.1 FORMULA FOR DETERMINING EMPLOYER’S CONTRIBUTION


	(a) For a Money Purchase Plan:

	(1) The Employer will make contributions on the following basis. On behalf of each Participant eligible to share in allocations, for each year of such Participant’s participation in this Plan, the Employer will contribute the amount elected in the Adoption Agreement. All contributions by the Employer will be made in cash. In the event a funding waiver is obtained, this Plan shall be deemed to be an individually designed plan.

	(2) Notwithstanding the foregoing, with respect to an Employer which is not a tax-exempt entity, the Employer’s contribution for any Fiscal Year shall not exceed the maximum amount allowable as a deduction to the Employer under the provisions of Code Section 404. However, to the extent necessary to provide the top heavy minimum allocations, the Employer shall make a contribution even if it exceeds the amount that is deductible under Code Section 404.

	(b) For a Profit Sharing Plan:

	(1) For each Plan Year, the Employer may (or will in the case of a Prevailing Wage contribution) contribute to the Plan such amount as elected by the Employer in the Adoption Agreement.

	(2) Additionally, the Employer will contribute to the Plan the amount necessary, if any, to provide the top heavy minimum allocations, even if it exceeds current or accumulated Net Profit or the amount that is deductible under Code Section 404.

4.2 TIME OF PAYMENT OF EMPLOYER’S CONTRIBUTION

Unless otherwise provided by contract or law, the Employer may make its contribution to the Plan for a particular Plan Year at such time as the Employer, in its sole discretion, determines. If the Employer makes a contribution for a particular Plan Year after the close of that Plan Year, the Employer will designate to the Administrator the Plan Year for which the Employer is making its contribution.

4.3 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS


	(a) The Administrator shall establish and maintain an account in the name of each Participant to which the Administrator shall credit as of each Anniversary Date, or other Valuation Date, all amounts allocated to each such Participant as set forth herein.

	(b) The Employer shall provide the Administrator with all information required by the Administrator to make a proper allocation of the Employer’s contribution, if any, for each Plan Year. Within a reasonable period of time after the date of receipt by the Administrator of such information, the Administrator shall allocate any contributions as follows:

(C) 2001 Markley Actuarial Services, Inc.

DEFINED CONTRIBUTION PLAN


	(1) For a Money Purchase Plan (other than a Money Purchase Plan which is integrated by allocation):

		(i) The Employer’s contribution shall be allocated to each Participant’s Account in the manner set forth in Section 4.1 herein and as specified in the Adoption Agreement.

		(ii) However, regardless of the preceding, a Participant shall only be eligible to share in the allocations of the Employer’s contribution for the year if the conditions set forth in the Adoption Agreement are satisfied, unless a top heavy contribution is required pursuant to Section 4.3(f). If no election is made in the Adoption Agreement, then a Participant shall be eligible to share in the allocation of the Employer’s contribution for the year if the Participant completes more than five hundred (500) Hours of Service (or three (3) Months of Service if the Elapsed Time method is chosen in the Adoption Agreement) during the Plan Year or who is employed on the last day of the Plan Year. Furthermore, with respect to a non-standardized Adoption Agreement, regardless of any election in the Adoption Agreement to the contrary, for the Plan Year in which this Plan terminates, a Participant shall only be eligible to share in the allocation of the Employer’s contributions for the Plan Year if the Participant is employed at the end of the Plan Year and has completed a Year of Service (or Period of Service if the Elapsed Time Method is elected).

	(2) For an integrated Profit Sharing Plan allocation or a Money Purchase Plan which is integrated by allocation:

		(i) Except as provided in Section 4.3(f) for top heavy purposes and subject to the “Overall Permitted Disparity Limits,” the Employer’s contribution shall be allocated to each Participant’s Account in a dollar amount equal to 5.7% of the sum of each Participant’s Compensation plus Excess Compensation. If the Employer does not contribute such amount for all Participants, each Participant will be allocated a share of the contribution in the same proportion that each such Participant’s Compensation plus Excess Compensation for the Plan Year bears to the total Compensation plus the total Excess Compensation of all Participants for that year. However, in the case of any Participant who has exceeded the “Cumulative Permitted Disparity Limit,” the allocation set forth in this paragraph shall be based on such Participant’s Compensation rather than Compensation plus Excess Compensation.

		Regardless of the preceding, 4.3% shall be substituted for 5.7% above if Excess Compensation is based on more than 20% and less than or equal to 80% of the Taxable Wage Base. If Excess Compensation is based on less than 100% and more than 80% of the Taxable Wage Base, then 5.4% shall be substituted for 5.7% above.

		(ii) The balance of the Employer’s contribution over the amount allocated above, if any, shall be allocated to each Participant’s Account in the same proportion that each such Participant’s Compensation for the Year bears to the total Compensation of all Participants for such year.

		(iii) However, regardless of the preceding, a Participant shall only be eligible to share in the allocations of the Employer’s Contribution for the year if the conditions set forth in the Adoption Agreement are satisfied, unless a contribution is required pursuant to Section 4.3(f). If no election is made in the Adoption Agreement, then a Participant shall be eligible to share in the allocation of the Employer’s contribution for the year if the Participant completes more than five hundred (500) Hours of Service (or three (3) Months of Service if the Elapsed Time method is chosen in the Adoption Agreement) during the Plan Year or who is employed on the last day of the Plan Year. Furthermore, with respect to a non-standardized Adoption Agreement, regardless of any election in the Adoption Agreement to the contrary, for the Plan Year in which this Plan terminates, a Participant shall only be eligible to share in the allocation of the Employer’s contributions for the Plan Year if the Participant is employed at the end of the Plan Year and has completed a Year of Service (or Period of Service if the Elapsed Time Method is elected).

	(3) For a Profit Sharing Plan with a non-integrated allocation formula or a Prevailing Wage contribution:

		(i) The Employer’s contribution shall be allocated to each Participant’s Account in accordance with the allocation method elected in the Adoption Agreement.

		(ii) However, regardless of the preceding, a Participant shall only be eligible to share in the allocations of the Employer’s contribution for the year if the conditions set forth in the Adoption Agreement are satisfied, unless a top heavy contribution is required pursuant to Section 4.3(f). If no election is made in the Adoption Agreement, then a Participant shall be eligible to share in the allocation of the Employer’s contribution for the year if the Participant completes more than five

DEFINED CONTRIBUTION PLAN


		hundred (500) Hours of Service (or three (3) Months of Service if the Elapsed Time method is chosen in the Adoption Agreement) during the Plan Year or who is employed on the last day of the Plan Year. Furthermore, with respect to a non-standardized Adoption Agreement, regardless of any election in the Adoption Agreement to the contrary, for the Plan Year in which this Plan terminates, a Participant shall only be eligible to share in the allocation of the Employer’s contributions for the Plan Year if the Participant is employed at the end of the Plan Year and has completed a Year of Service (or Period of Service if the Elapsed Time Method is elected).

	(4) “Overall Permitted Disparity Limits”:

		“Annual Overall Permitted Disparity Limit”: Notwithstanding the preceding paragraphs, if in any Plan Year this Plan “benefits” any Participant who “benefits” under another qualified plan or simplified employee pension, as defined in Code Section 408(k), maintained by the Employer that either provides for or imputes permitted disparity (integrates), then such plans will be considered to be one plan and will be considered to comply with the permitted disparity rules if the extent of the permitted disparity of all such plans does not exceed 100%. For purposes of the preceding sentence, the extent of the permitted disparity of a plan is the ratio, expressed as a percentage, which the actual benefits, benefit rate, offset rate, or employer contribution rate, whatever is applicable under the Plan, bears to the limitation under Code Section 401(l) applicable to such Plan. Notwithstanding the foregoing, if the Employer maintains two or more standardized paired plans, only one plan may provide for permitted disparity.

		“Cumulative Permitted Disparity Limit”: With respect to a Participant who “benefits” or “has benefited” under a defined benefit or target benefit plan of the Employer, effective for Plan Years beginning on or after January 1, 1994, the cumulative permitted disparity limit for the Participant is thirty five (35) total cumulative permitted disparity years. Total cumulative permitted disparity years means the number of years credited to the Participant for allocation or accrual purposes under the Plan, any other qualified plan or simplified employee pension plan (whether or not terminated) ever maintained by the Employer, while such plan either provides for or imputes permitted disparity. For purposes of determining the Participant’s cumulative permitted disparity limit, all years ending in the same calendar year are treated as the same year. If the Participant has not “benefited” under a defined benefit or target benefit plan which neither provides for nor imputes permitted disparity for any year beginning on or after January 1, 1994, then such Participant has no cumulative disparity limit.

		For purposes of this Section, “benefiting” means benefiting under the Plan for any Plan Year during which a Participant received or is deemed to receive an allocation in accordance with Regulation 1.410(b)-3(a).

(c) Except as otherwise elected in the Adoption Agreement or as provided in Section 4.10 with respect to Participant Directed Accounts, as of each Valuation Date, before allocation of any Employer contributions and Forfeitures, any earnings or losses (net appreciation or net depreciation) of the Trust Fund (exclusive of assets segregated for distribution) shall be allocated in the same proportion that each Participant’s and Former Participant’s nonsegregated accounts bear to the total of all Participants’ and Former Participants’ nonsegregated accounts as of such date. If any nonsegregated account of a Participant has been distributed prior to the Valuation Date subsequent to a Participant’s termination of employment, no earnings or losses shall be credited to such account.

(d) Participants’ Accounts shall be debited for any insurance or annuity premiums paid, if any, and credited with any dividends or interest received on Contracts.

(e) On or before each Anniversary Date, any amounts which became Forfeitures since the last Anniversary Date may be made available to reinstate previously forfeited account balances of Former Participants, if any, in accordance with Section 3.5(d) or used to satisfy any contribution that may be required pursuant to Section 6.9. The remaining Forfeitures, if any, shall be treated in accordance with the Adoption Agreement. If no election is made in the Adoption Agreement, any remaining Forfeitures will be used to reduce any future Employer contributions under the Plan. However, if the Plan provides for an integrated allocation, then any remaining Forfeitures will be added to the Employer’s contributions under the Plan. Regardless of the preceding sentences, in the event the allocation of Forfeitures provided herein shall cause the “Annual Additions” (as defined in Section 4.4) to any Participant’s Account to exceed the amount allowable by the Code, an adjustment shall be made in accordance with Section 4.5. Except, however, a Participant shall only be eligible to share in the allocations of Forfeitures for the year if the conditions set forth in the Adoption Agreement are satisfied, unless a top heavy contribution is required pursuant to Section 4.3(f). If no election is made in the Adoption Agreement, then a Participant shall be eligible to share in the allocation of the Employer’s contribution for the year if the Participant completes more than five hundred (500) Hours of Service (or three (3) Months of Service if the Elapsed Time method is chosen in the Adoption Agreement) during the Plan Year or who is employed on the last day of the Plan Year.

DEFINED CONTRIBUTION PLAN


	(f) Minimum Allocations Required for Top Heavy Plan Years: Notwithstanding the foregoing, for any Top Heavy Plan Year, the sum of the Employer’s contributions and Forfeitures allocated to the Participant’s Combined Account of each Non-Key Employee shall be equal to at least three percent (3%) of such Non-Key Employee’s 415 Compensation (reduced by contributions and forfeitures, if any, allocated to each Non-Key Employee in any defined contribution plan included with this Plan in a “required aggregation group” (as defined in Section 9.2(f)). However, if (i) the sum of the Employer’s contributions and Forfeitures allocated to the Participant’s Combined Account of each Key Employee for such Top Heavy Plan Year is less than three percent (3%) of each Key Employee’s 415 Compensation and (ii) this Plan is not required to be included in a “required aggregation group” (as defined in Section 9.2(f)) to enable a defined benefit plan to meet the requirements of Code Section 401(a)(4) or 410, the sum of the Employer’s contributions and Forfeitures allocated to the Participant’s Combined Account of each Non-Key Employee shall be equal to the largest percentage allocated to the Participant’s Combined Account of any Key Employee.

	However, for each Non-Key Employee who is a Participant in a paired Profit Sharing Plan or 401(k) Profit Sharing Plan and a paired Money Purchase Plan, the minimum three percent (3%) allocation specified above shall be provided in the Money Purchase Plan.

	If this is an integrated Plan, then for any Top Heavy Plan Year the Employer’s contribution shall be allocated as follows and shall still be required to satisfy the other provisions of this subsection:

		(1) An amount equal to three percent (3%) multiplied by each Participant’s Compensation for the Plan Year shall be allocated to each Participant’s Account. If the Employer does not contribute such amount for all Participants, the amount shall be allocated to each Participant’s Account in the same proportion that such Participant’s total Compensation for the Plan Year bears to the total Compensation of all Participants for such year.

		(2) The balance of the Employer’s contribution over the amount allocated under subparagraph (1) hereof shall be allocated to each Participant’s Account in a dollar amount equal to three percent (3%) multiplied by a Participant’s Excess Compensation. If the Employer does not contribute such amount for all Participants, each Participant will be allocated a share of the contribution in the same proportion that such Participant’s Excess Compensation bears to the total Excess Compensation of all Participants for that year. For purposes of this paragraph, in the case of any Participant who has exceeded the cumulative permitted disparity limit described in Section 4.3(b)(4), such Participant’s total Compensation will be taken into account.

		(3) The balance of the Employer’s contribution over the amount allocated under subparagraph (2) hereof shall be allocated to each Participant’s Account in a dollar amount equal to 2.7% multiplied by the sum of each Participant’s total Compensation plus Excess Compensation. If the Employer does not contribute such amount for all Participants, each Participant will be allocated a share of the contribution in the same proportion that such Participant’s total Compensation plus Excess Compensation for the Plan Year bears to the total Compensation plus Excess Compensation of all Participants for that year. For purposes of this paragraph, in the case of any Participant who has exceeded the cumulative permitted disparity limit described in Section 4.3(b)(4), such Participant’s total Compensation rather than Compensation plus Excess Compensation will be taken into account.

		Regardless of the preceding, 1.3% shall be substituted for 2.7% above if Excess Compensation is based on more than 20% and less than or equal to 80% of the Taxable Wage Base. If Excess Compensation is based on less than 100% and more than 80% of the Taxable Wage Base, then 2.4% shall be substituted for 2.7% above.

		(4) The balance of the Employer’s contributions over the amount allocated above, if any, shall be allocated to each Participant’s Account in the same proportion that such Participant’s total Compensation for the Plan Year bears to the total Compensation of all Participants for such year.

	For each Non-Key Employee who is a Participant in this Plan and another non-paired defined contribution plan maintained by the Employer, the minimum three percent (3%) allocation specified above shall be provided as specified in the Adoption Agreement.

	(g) For purposes of the minimum allocations set forth above, the percentage allocated to the Participant’s Combined Account of any Key Employee shall be equal to the ratio of the sum of the Employer’s contributions and Forfeitures allocated on behalf of such Key Employee divided by the 415 Compensation for such Key Employee.

	(h) For any Top Heavy Plan Year, the minimum allocations set forth in this Section shall be allocated to the Participant’s Combined Account of all Non-Key Employees who are Participants and who are employed by the

DEFINED CONTRIBUTION PLAN


Employer on the last day of the Plan Year, including Non-Key Employees who have (1) failed to complete a Year of Service; or (2) declined to make mandatory contributions (if required) or, in the case of a cash or deferred arrangement, Elective Deferrals to the Plan.

(i) Notwithstanding anything herein to the contrary, in any Plan Year in which the Employer maintains both this Plan and a defined benefit pension plan included in a “required aggregation group” (as defined in Section 9.2(f)) which is top heavy, the Employer will not be required (unless otherwise elected in the Adoption Agreement) to provide a Non-Key Employee with both the full separate minimum defined benefit plan benefit and the full separate defined contribution plan allocations. In such case, the top heavy minimum benefits will be provided as elected in the Adoption Agreement and, if applicable, as follows:

	(1) If the 5% defined contribution minimum is elected in the Adoption Agreement:

		(i) The requirements of Section 9.1 will apply except that each Non-Key Employee who is a Participant in the Profit Sharing Plan or Money Purchase Plan and who is also a Participant in the Defined Benefit Plan will receive a minimum allocation of five percent (5%) of such Participant’s 415 Compensation from the applicable defined contribution plan(s).

		(ii) For each Non-Key Employee who is a Participant only in the Defined Benefit Plan the Employer will provide a minimum non-integrated benefit equal to two percent (2%) of such Participant’s highest five (5) consecutive year average 415 Compensation for each Year of Service while a participant in the plan, in which the Plan is top heavy, not to exceed ten (10).

		(iii) For each Non-Key Employee who is a Participant only in this defined contribution plan, the Employer will provide a minimum allocation equal to three percent (3%) of such Participant’s 415 Compensation.

	(2) If the 2% defined benefit minimum is elected in the Adoption Agreement, then for each Non-Key Employee who is a Participant only in the defined benefit plan, the Employer will provide a minimum non-integrated benefit equal to two percent (2%) of such Participant’s highest five (5) consecutive year average of 415 Compensation for each Year of Service while a participant in the plan, in which the Plan is top heavy, not to exceed ten (10).

(j) For the purposes of this Section, 415 Compensation will be limited to the same dollar limitations set forth in Section 1.11 adjusted in such manner as permitted under Code Section 415(d).

(k) Notwithstanding anything in this Section to the contrary, all information necessary to properly reflect a given transaction may not be available until after the date specified herein for processing such transaction, in which case the transaction will be reflected when such information is received and processed. Subject to express limits that may be imposed under the Code, the processing of any contribution, distribution or other transaction may be delayed for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive values or prices, and correction for errors or omissions or the errors or omissions of any service provider). The processing date of a transaction will be binding for all purposes of the Plan.

(l) Notwithstanding anything in this Section to the contrary, the provisions of this subsection apply for any Plan Year if, in the non-standardized Adoption Agreement, the Employer elected to apply the 410(b) ratio percentage failsafe provisions and the Plan fails to satisfy the “ratio percentage test” due to a last day of the Plan Year allocation condition or an Hours of Service (or months of service) allocation condition. A plan satisfies the “ratio percentage test” if, on the last day of the Plan Year, the “benefiting ratio” of the Non-Highly Compensated Employees who are “includible” is at least 70% of the “benefiting ratio” of the Highly Compensated Employees who are “includible.” The “benefiting ratio” of the Non-Highly Compensated Employees is the number of “includible” Non-Highly Compensated Employees “benefiting” under the Plan divided by the number of “includible” Employees who are Non-Highly Compensated Employees. The “benefiting ratio” of the Highly Compensated Employees is the number of Highly Compensated Employees “benefiting” under the Plan divided by the number of “includible” Highly Compensated Employees. “Includible” Employees are all Employees other than: (1) those Employees excluded from participating in the plan for the entire Plan Year by reason of the collective bargaining unit exclusion or the nonresident alien exclusion described in the Code or by reason of the age and service requirements of Article III; and (2) any Employee who incurs a separation from service during the Plan Year and fails to complete at least 501 Hours of Service (or three (3) months of service if the Elapsed Time Method is being used) during such Plan Year.

For purposes of this subsection, an Employee is “benefiting” under the Plan on a particular date if, under the Plan, the Employee is entitled to an Employer contribution or an allocation of Forfeitures for the Plan Year.

DEFINED CONTRIBUTION PLAN


	If this subsection applies, then the Administrator will suspend the allocation conditions for the “includible” Non-Highly Compensated Employees who are Participants, beginning first with the “includible” Employees employed by the Employer on the last day of the Plan Year, then the “includible” Employees who have the latest separation from service during the Plan Year, and continuing to suspend the allocation conditions for each “includible” Employee who incurred an earlier separation from service, from the latest to the earliest separation from service date, until the Plan satisfies the “ratio percentage test” for the Plan Year. If two or more “includible” Employees have a separation from service on the same day, then the Administrator will suspend the allocation conditions for all such “includible” Employees, irrespective of whether the Plan can satisfy the “ratio percentage test” by accruing benefits for fewer than all such “includible” Employees. If the Plan for any Plan Year suspends the allocation conditions for an “includible” Employee, then that Employee will share in the allocation for that Plan Year of the Employer contribution and Forfeitures, if any, without regard to whether the Employee has satisfied the other allocation conditions set forth in this Section.

4.4 MAXIMUM ANNUAL ADDITIONS

	(a)(1) If a Participant does not participate in, and has never participated in another qualified plan maintained by the Employer, or a welfare benefit fund (as defined in Code Section 419(e)) maintained by the Employer, or an individual medical account (as defined in Code Section 415(l)(2)) maintained by the Employer, or a simplified employee pension (as defined in Code Section 408(k)) maintained by the Employer which provides “Annual Additions,” the amount of “Annual Additions” which may be credited to the Participant’s accounts for any Limitation Year shall not exceed the lesser of the “Maximum Permissible Amount” or any other limitation contained in this Plan. If the Employer contribution that would otherwise be contributed or allocated to the Participant’s accounts would cause the “Annual Additions” for the Limitation Year to exceed the “Maximum Permissible Amount,” the amount contributed or allocated will be reduced so that the “Annual Additions” for the Limitation Year will equal the “Maximum Permissible Amount,” and any amount in excess of the “Maximum Permissible Amount” which would have been allocated to such Participant may be allocated to other Participants.

		(2) Prior to determining the Participant’s actual 415 Compensation for the Limitation Year, the Employer may determine the “Maximum Permissible Amount” for a Participant on the basis of a reasonable estimation of the Participant’s 415 Compensation for the Limitation Year, uniformly determined for all Participants similarly situated.

		(3) As soon as is administratively feasible after the end of the Limitation Year the “Maximum Permissible Amount” for such Limitation Year shall be determined on the basis of the Participant’s actual 415 Compensation for such Limitation Year.

	(b)(1) This subsection applies if, in addition to this Plan, a Participant is covered under another qualified defined contribution plan maintained by the Employer that is a “Master or Prototype Plan,” a welfare benefit fund (as defined in Code Section 419(e)) maintained by the Employer, an individual medical account (as defined in Code Section 415(l)(2)) maintained by the Employer, or a simplified employee pension (as defined in Code Section 408(k)) maintained by the Employer, which provides “Annual Additions,” during any Limitation Year. The “Annual Additions” which may be credited to a Participant’s accounts under this Plan for any such Limitation Year shall not exceed the “Maximum Permissible Amount” reduced by the “Annual Additions” credited to a Participant’s accounts under the other plans and welfare benefit funds, individual medical accounts, and simplified employee pensions for the same Limitation Year. If the “Annual Additions” with respect to the Participant under other defined contribution plans and welfare benefit funds maintained by the Employer are less than the “Maximum Permissible Amount” and the Employer contribution that would otherwise be contributed or allocated to the Participant’s accounts under this Plan would cause the “Annual Additions” for the Limitation Year to exceed this limitation, the amount contributed or allocated will be reduced so that the “Annual Additions” under all such plans and welfare benefit funds for the Limitation Year will equal the “Maximum Permissible Amount,” and any amount in excess of the “Maximum Permissible Amount” which would have been allocated to such Participant may be allocated to other Participants. If the “Annual Additions” with respect to the Participant under such other defined contribution plans, welfare benefit funds, individual medical accounts and simplified employee pensions in the aggregate are equal to or greater than the “Maximum Permissible Amount,” no amount will be contributed or allocated to the Participant’s account under this Plan for the Limitation Year.

		(2) Prior to determining the Participant’s actual 415 Compensation for the Limitation Year, the Employer may determine the “Maximum Permissible Amount” for a Participant on the basis of a reasonable estimation of the Participant’s 415 Compensation for the Limitation Year, uniformly determined for all Participants similarly situated.

		(3) As soon as is administratively feasible after the end of the Limitation Year, the “Maximum Permissible Amount” for the Limitation Year will be determined on the basis of the Participant’s actual 415 Compensation for the Limitation Year.

DEFINED CONTRIBUTION PLAN


	(4) If, pursuant to Section 4.4(b)(2) or Section 4.5, a Participant’s “Annual Additions” under this Plan and such other plans would result in an “Excess Amount” for a Limitation Year, the “Excess Amount” will be deemed to consist of the “Annual Additions” last allocated, except that “Annual Additions” attributable to a simplified employee pension will be deemed to have been allocated first, followed by “Annual Additions” to a welfare benefit fund or individual medical account, and then by “Annual Additions” to a plan subject to Code Section 412, regardless of the actual allocation date.

	(5) If an “Excess Amount” was allocated to a Participant on an allocation date of this Plan which coincides with an allocation date of another plan, the “Excess Amount” attributed to this Plan will be the product of:

		(i) the total “Excess Amount” allocated as of such date, times

		(ii) the ratio of (1) the “Annual Additions” allocated to the Participant for the Limitation Year as of such date under this Plan to (2) the total “Annual Additions” allocated to the Participant for the Limitation Year as of such date under this and all the other qualified defined contribution plans.

	(6) Any “Excess Amount” attributed to this Plan will be disposed of in the manner described in Section 4.5.

(c) If the Participant is covered under another qualified defined contribution plan maintained by the Employer which is not a “Master or Prototype Plan,” “Annual Additions” which may be credited to the Participant’s Combined Account under this Plan for any Limitation Year will be limited in accordance with Section 4.4(b), unless the Employer provides other limitations in the Adoption Agreement.

(d) For any Limitation Year beginning prior to the date the Code Section 415(e) limits are repealed with respect to this Plan (as specified in the Adoption Agreement for the GUST transitional rules), if the Employer maintains, or at any time maintained, a qualified defined benefit plan covering any Participant in this Plan, then the sum of the Participant’s “Defined Benefit Plan Fraction” and “Defined Contribution Plan Fraction” may not exceed 1.0. In such event, the rate of accrual in the defined benefit plan will be reduced to the extent necessary so that the sum of the “Defined Contribution Fraction” and “Defined Benefit Fraction” will equal 1.0. However, in the Adoption Agreement the Employer may specify an alternative method under which the plans involved will satisfy the limitations of Code Section 415(e), including increased top heavy minimum benefits so that the combined limitation is 1.25 rather than 1.0.

(e) For purposes of applying the limitations of Code Section 415, the transfer of funds from one qualified plan to another is not an “Annual Addition.” In addition, the following are not Employee contributions for the purposes of Section 4.4(f)(1)(b): (1) rollover contributions (as defined in Code Sections 402(c), 403(a)(4), 403(b)(8) and 408(d)(3)); (2) repayments of loans made to a Participant from the Plan; (3) repayments of distributions received by an Employee pursuant to Code Section 411(a)(7)(B) (cash-outs); (4) repayments of distributions received by an Employee pursuant to Code Section 411(a)(3)(D) (mandatory contributions); and (5) Employee contributions to a simplified employee pension excludable from gross income under Code Section 408(k)(6).

(f) For purposes of this Section, the following terms shall be defined as follows:

	(1) “Annual Additions” means the sum credited to a Participant’s accounts for any Limitation Year of (a) Employer contributions, (b) Employee contributions (except as provided below), (c) forfeitures, (d) amounts allocated, after March 31, 1984, to an individual medical account, as defined in Code Section 415(l)(2), which is part of a pension or annuity plan maintained by the Employer, (e) amounts derived from contributions paid or accrued after December 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits allocated to the separate account of a key employee (as defined in Code Section 419A(d)(3)) under a welfare benefit fund (as defined in Code Section 419(e)) maintained by the Employer and (f) allocations under a simplified employee pension. Except, however, the Compensation percentage limitation referred to in paragraph (f)(9)(ii) shall not apply to: (1) any contribution for medical benefits (within the meaning of Code Section 419A(f)(2)) after separation from service which is otherwise treated as an “Annual Addition,” or (2) any amount otherwise treated as an “Annual Addition” under Code Section 415(l)(1). Notwithstanding the foregoing, for Limitation Years beginning prior to January 1, 1987, only that portion of Employee contributions equal to the lesser of Employee contributions in excess of six percent (6%) of 415 Compensation or one-half of Employee contributions shall be considered an “Annual Addition.”

	For this purpose, any Excess Amount applied under Section 4.5 in the Limitation Year to reduce Employer contributions shall be considered “Annual Additions” for such Limitation Year.

	(2) “Defined Benefit Fraction” means a fraction, the numerator of which is the sum of the Participant’s “Projected Annual Benefits” under all the defined benefit plans (whether or not terminated) maintained by the

DEFINED CONTRIBUTION PLAN


	Employer, and the denominator of which is the lesser of one hundred twenty-five percent (125%) of the dollar limitation determined for the Limitation Year under Code Sections 415(b)(1)(A) as adjusted by Code Section 415(d) or one hundred forty percent (140%) of the “Highest Average Compensation” including any adjustments under Code Section 415(b).

	Notwithstanding the above, if the Participant was a Participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one or more defined benefit plans maintained by the Employer which were in existence on May 6, 1986, the denominator of this fraction will not be less than one hundred twenty-five percent (125%) of the sum of the annual benefits under such plans which the Participant had accrued as of the end of the close of the last Limitation Year beginning before January 1, 1987, disregarding any changes in the terms and conditions of the plan after May 5, 1986. The preceding sentence applies only if the defined benefit plans individually and in the aggregate satisfied the requirements of Code Section 415 for all Limitation Years beginning before January 1, 1987.

	Notwithstanding the foregoing, for any Top Heavy Plan Year, one hundred percent (100%) shall be substituted for one hundred twenty-five percent (125%) unless the extra top heavy minimum allocation or benefit is being made pursuant to the Employer’s specification in the Adoption Agreement. However, for any Plan Year in which this Plan is a Super Top Heavy Plan, one hundred percent (100%) shall always be substituted for one hundred twenty-five percent (125%).

	(3) Defined Contribution Dollar Limitation means $30,000 as adjusted under Code Section 415(d).

	(4) Defined Contribution Fraction means a fraction, the numerator of which is the sum of the “Annual Additions” to the Participant’s accounts under all the defined contribution plans (whether or not terminated) maintained by the Employer for the current and all prior “Limitation Years,” (including the “Annual Additions” attributable to the Participant’s nondeductible voluntary employee contributions to any defined benefit plans, whether or not terminated, maintained by the Employer and the “Annual Additions” attributable to all welfare benefit funds (as defined in Code Section 419(e)), individual medical accounts (as defined in Code Section 415(l)(2)), and simplified employee pensions (as defined in Code Section 408(k)) maintained by the Employer), and the denominator of which is the sum of the “Maximum Aggregate Amounts” for the current and all prior Limitation Years in which the Employee had service with the Employer (regardless of whether a defined contribution plan was maintained by the Employer). The maximum aggregate amount in any Limitation Year is the lesser of one hundred twenty-five percent (125%) of the dollar limitation determined under Code Section 415(c)(1)(A) as adjusted by Code Section 415(d) or thirty-five percent (35%) of the Participant’s 415 Compensation for such year.

	If the Employee was a Participant as of the end of the first day of the first Limitation Year beginning after December 31, 1986, in one or more defined contribution plans maintained by the Employer which were in existence on May 5, 1986, the numerator of this fraction will be adjusted if the sum of this fraction and the “Defined Benefit Fraction” would otherwise exceed 1.0 under the terms of this Plan. Under the adjustment, an amount equal to the product of (1) the excess of the sum of the fractions over 1.0 times (2) the denominator of this fraction, will be permanently subtracted from the numerator of this fraction. The adjustment is calculated using the fractions as they would be computed as of the end of the last Limitation Year beginning before January 1, 1987, and disregarding any changes in the terms and conditions of the plan made after May 5, 1986, but using the Code Section 415 limitation applicable to the first Limitation Year beginning on or after January 1, 1987.

	For Limitation Years beginning prior to January 1, 1987, the “Annual Additions” shall not be recomputed to treat all Employee contributions as “Annual Additions.”

	Notwithstanding the foregoing, for any Top Heavy Plan Year, one hundred percent (100%) shall be substituted for one hundred twenty-five percent (125%) unless the extra top heavy minimum allocation or benefit is being made pursuant to the Employer’s specification in the Adoption Agreement. However, for any Plan Year in which this Plan is a Super Top Heavy Plan, one hundred percent (100%) shall always be substituted for one hundred twenty-five percent (125%).

	(5) “Employer” means the Employer that adopts this Plan and all Affiliated Employers, except that for purposes of this Section, the determination of whether an entity is an Affiliated Employer shall be made by applying Code Section 415(h).

	(6) “Excess Amount” means the excess of the Participant’s “Annual Additions” for the Limitation Year over the “Maximum Permissible Amount.”

	(7) “Highest Average Compensation” means the average Compensation for the three (3) consecutive Years of Service with the Employer while a Participant in the Plan that produces the highest average. A Year

DEFINED CONTRIBUTION PLAN


		of Service with the Employer is the twelve (12) consecutive month period ending on the last day of the Limitation Year.

		(8) “Master or Prototype Plan” means a plan the form of which is the subject of a favorable opinion letter from the Internal Revenue Service.

		(9) “Maximum Permissible Amount” means the maximum Annual Addition that may be contributed or allocated to a Participant’s accounts under the Plan for any “Limitation Year,” which shall not exceed the lesser of:

			(i) the “Defined Contribution Dollar Limitation,” or

			(ii) twenty-five percent (25%) of the Participant’s 415 Compensation for the “Limitation Year.”

			The Compensation Limitation referred to in (ii) shall not apply to any contribution for medical benefits (within the meaning of Code Sections 401(h) or 419A(f)(2)) which is otherwise treated as an “Annual Addition.”

			If a short Limitation Year is created because of an amendment changing the Limitation Year to a different twelve (12) consecutive month period, the “Maximum Permissible Amount” will not exceed the “Defined Contribution Dollar Limitation multiplied by a fraction, the numerator of which is the number of months in the short Limitation Year and the denominator of which is twelve (12).

		(10) “Projected Annual Benefit” means the annual retirement benefit (adjusted to an actuarially equivalent “straight life annuity” if such benefit is expressed in a form other than a “straight life annuity” or qualified joint and survivor annuity) to which the Participant would be entitled under the terms of the plan assuming:

			(i) the Participant will continue employment until Normal Retirement Age (or current age, if later), and

			(ii) the Participant’s 415 Compensation for the current Limitation Year and all other relevant factors used to determine benefits under the Plan will remain constant for all future Limitation Years.

		For purposes of this subsection, “straight life annuity” means an annuity that is payable in equal installments for the life of the Participant that terminates upon the Participant’s death.

	(g) Notwithstanding anything contained in this Section to the contrary, the limitations, adjustments and other requirements prescribed in this Section shall at all times comply with the provisions of Code Section 415 and the Regulations thereunder.

4.5 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS

Allocation of “Annual Additions” (as defined in Section 4.4) to a Participant’s Combined Account for a Limitation Year generally will cease once the limits of Section 4.4 have been reached for such Limitation Year. However, if as a result of the allocation of Forfeitures, a reasonable error in estimating a Participant’s annual 415 Compensation, a reasonable error in determining the amount of elective deferrals (within the meaning of Code Section 402(g)(3)) that may be made with respect to any Participant under the limits of Section 4.4, or other facts and circumstances to which Regulation 1.415-6(b)(6) shall be applicable, the “Annual Additions” under this Plan would cause the maximum provided in Section 4.4 to be exceeded, the “Excess Amount” will be disposed of in one of the following manners, as uniformly determined by the Plan Administrator for all Participants similarly situated:

	(a) Any after-tax voluntary Employee contributions (plus attributable gains), to the extent they would reduce the Excess Amount, will be distributed to the Participant;

	(b) If, after the application of subparagraph (a), an “Excess Amount” still exists, any unmatched Elective Deferrals (and for Limitation Years beginning after December 31, 1995, any gains attributable to such Elective Deferrals), to the extent they would reduce the Excess Amount, will be distributed to the Participant;

	(c) To the extent necessary, matched Elective Deferrals and Employer matching contributions will be proportionately reduced from the Participant’s Account. The Elective Deferrals (and for Limitation Years beginning after December 31, 1995, any gains attributable to such Elective Deferrals) will be distributed to the Participant and the

DEFINED CONTRIBUTION PLAN


	Employer matching contributions (and for Limitation Years beginning after December 31, 1995, any gains attributable to such matching contributions) will be used to reduce the Employer’s contributions in the next Limitation Year;

	(d) If, after the application of subparagraphs (a), (b) and (c), an “Excess Amount” still exists, and the Participant is covered by the Plan at the end of the Limitation Year, the “Excess Amount” in the Participant’s Account will be used to reduce Employer contributions (including any allocation of Forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary;

	(e) If, after the application of subparagraphs (a), (b) and (c), an “Excess Amount” still exists, and the Participant is not covered by the Plan at the end of a Limitation Year, the “Excess Amount” will be held unallocated in a suspense account. The suspense account will be applied to reduce future Employer contributions (including allocation of any Forfeitures) for all remaining Participants in the next Limitation Year, and each succeeding Limitation Year if necessary; and

	(f) If a suspense account is in existence at any time during a Limitation Year pursuant to this Section, no investment gains and losses shall be allocated to such suspense account. If a suspense account is in existence at any time during a particular Limitation Year, all amounts in the suspense account must be allocated and reallocated to Participants’ Accounts before any Employer contributions or any Employee contributions may be made to the Plan for that Limitation Year. Except as provided in (a), (b) and (c) above, “Excess Amounts” may not be distributed to Participants or Former Participants.

4.6 ROLLOVERS

	(a) If elected in the Adoption Agreement and with the consent of the Administrator, the Plan may accept a “rollover,” provided the “rollover” will not jeopardize the tax-exempt status of the Plan or create adverse tax consequences for the Employer. The amounts rolled over shall be set up in a separate account herein referred to as a “Participant’s Rollover Account.” Such account shall be fully Vested at all times and shall not be subject to forfeiture for any reason. For purposes of this Section, the term Participant shall include any Eligible Employee who is not yet a Participant, if, pursuant to the Adoption Agreement, “rollovers” are permitted to be accepted from Eligible Employees. In addition, for purposes of this Section the term Participant shall also include former Employees if the Employer and Administrator consent to accept “rollovers” of distributions made to former Employees from any plan of the Employer.

	(b) Amounts in a Participant’s Rollover Account shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the Participant, in whole or in part, except as elected in the Adoption Agreement and subsection (c) below. The Trustee shall have no duty or responsibility to inquire as to the propriety of the amount, value or type of assets transferred, nor to conduct any due diligence with respect to such assets; provided, however, that such assets are otherwise eligible to be held by the Trustee under the terms of this Plan.

	(c) At Normal Retirement Date, or such other date when the Participant or Eligible Employee or such Participant’s or Eligible Employee’s Beneficiary shall be entitled to receive benefits, the Participant’s Rollover Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary. Any distribution of amounts held in a Participant’s Rollover Account shall be made in a manner which is consistent with and satisfies the provisions of Sections 6.5 and 6.6, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder. Furthermore, such amounts shall be considered to be part of a Participant’s benefit in determining whether an involuntary cash-out of benefits may be made without Participant consent.

	(d) The Administrator may direct that rollovers made after a Valuation Date be segregated into a separate account for each Participant until such time as the allocations pursuant to this Plan have been made, at which time they may remain segregated, invested as part of the general Trust Fund or, if elected in the Adoption Agreement, directed by the Participant.

	(e) For purposes of this Section, the term “qualified plan” shall mean any tax qualified plan under Code Section 401(a), or any other plans from which distributions are eligible to be rolled over into this Plan pursuant to the Code. The term “rollover” means: (i) amounts transferred to this Plan in a direct rollover made pursuant to Code Section 401(a)(31) from another “qualified plan”; (ii) distributions received by an Employee from other “qualified plans” which are eligible for tax-free rollover to a “qualified plan” and which are transferred by the Employee to this Plan within sixty (60) days following receipt thereof; (iii) amounts transferred to this Plan from a conduit individual retirement account provided that the conduit individual retirement account has no assets other than assets which (A) were previously distributed to the Employee by another “qualified plan” (B) were eligible for tax-free rollover to a “qualified plan” and (C) were deposited in such conduit individual retirement account within sixty (60) days of receipt thereof; (iv) amounts distributed to the Employee from a conduit individual retirement account meeting the requirements of clause (iii) above, and transferred by the Employee to this Plan within sixty (60) days of receipt thereof from such conduit individual retirement account; and (v) any other amounts which are eligible to be rolled over to this Plan pursuant to the Code.

DEFINED CONTRIBUTION PLAN


	(f) Prior to accepting any “rollovers” to which this Section applies, the Administrator may require the Employee to establish (by providing opinion of counsel or otherwise) that the amounts to be rolled over to this Plan meet the requirements of this Section.

4.7 PLAN-TO-PLAN TRANSFERS FROM QUALIFIED PLANS

	(a) With the consent of the Administrator, amounts may be transferred (within the meaning of Code Section 414(l)) to this Plan from other tax qualified plans under Code Section 401(a), provided the plan from which such funds are transferred permits the transfer to be made and the transfer will not jeopardize the tax-exempt status of the Plan or Trust or create adverse tax consequences for the Employer. Prior to accepting any transfers to which this Section applies, the Administrator may require an opinion of counsel that the amounts to be transferred meet the requirements of this Section. The amounts transferred shall be set up in a separate account herein referred to as a “Participant’s Transfer Account.” Furthermore, for Vesting purposes, the Participant’s Transfer Account shall be treated as a separate “Participant’s Account.”

	(b) Amounts in a Participant’s Transfer Account shall be held by the Trustee pursuant to the provisions of this Plan and may not be withdrawn by, or distributed to the Participant, in whole or in part, except as elected in the Adoption Agreement and subsection (d) below, provided the restrictions of subsection (c) below and Section 6.15 are satisfied. The Trustee shall have no duty or responsibility to inquire as to the propriety of the amount, value or type of assets transferred, nor to conduct any due diligence with respect to such assets; provided, however, that such assets are otherwise eligible to be held by the Trustee under the terms of this Plan.

	(c) Except as permitted by Regulations (including Regulation 1.411(d)-4), amounts attributable to elective contributions (as defined in Regulation 1.401(k)-1(g)(3)), including amounts treated as elective contributions, which are transferred from another qualified plan in a plan-to-plan transfer (other than a direct rollover) shall be subject to the distribution limitations provided for in Regulation 1.401(k)-1(d).

	(d) At Normal Retirement Date, or such other date when the Participant or the Participant’s Beneficiary shall be entitled to receive benefits, the Participant’s Transfer Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary. Any distribution of amounts held in a Participant’s Transfer Account shall be made in a manner which is consistent with and satisfies the provisions of Sections 6.5 and 6.6, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder. Furthermore, such amounts shall be considered to be part of a Participant’s benefit in determining whether an involuntary cash-out of benefits may be made without Participant consent.

	(e) The Administrator may direct that Employee transfers made after a Valuation Date be segregated into a separate account for each Participant until such time as the allocations pursuant to this Plan have been made, at which time they may remain segregated, invested as part of the general Trust Fund or, if elected in the Adoption Agreement, directed by the Participant.

	(f) Notwithstanding anything herein to the contrary, a transfer directly to this Plan from another qualified plan (or a transaction having the effect of such a transfer) shall only be permitted if it will not result in the elimination or reduction of any “Section 411(d)(6) protected benefit” as described in Section 8.1(e).

4.8 VOLUNTARY EMPLOYEE CONTRIBUTIONS

	(a) Except as provided in subsection 4.8(b) below, this Plan will not accept after-tax voluntary Employee contributions. If this is an amendment to a Plan that had previously allowed after-tax voluntary Employee contributions, then this Plan will not accept after-tax voluntary Employee contributions for Plan Years beginning after the Plan Year in which this Plan is adopted by the Employer.

	(b) For 401(k) Plans, if elected in the Adoption Agreement, each Participant who is eligible to make Elective Deferrals may, in accordance with nondiscriminatory procedures established by the Administrator, elect to make after-tax voluntary Employee contributions to this Plan. Such contributions must generally be paid to the Trustee within a reasonable period of time after being received by the Employer.

	(c) The balance in each Participant’s Voluntary Contribution Account shall be fully Vested at all times and shall not be subject to Forfeiture for any reason.

	(d) A Participant may elect at any time to withdraw after-tax voluntary Employee contributions from such Participant’s Voluntary Contribution Account and the actual earnings thereon in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder. If the Administrator maintains sub-accounts with respect to after-tax voluntary Employee contributions (and earnings thereon) which were made on or before a specified date, a

DEFINED CONTRIBUTION PLAN


	Participant shall be permitted to designate which sub-account shall be the source for the withdrawal. Forfeitures of Employer contributions shall not occur solely as a result of an Employee’s withdrawal of after-tax voluntary Employee contributions.

	In the event a Participant has received a hardship distribution pursuant to Regulation 1.401(k)-1(d)(2)(iii)(B) from any plan maintained by the Employer, then the Participant shall be barred from making any after-tax voluntary Employee contributions for a period of twelve (12) months after receipt of the hardship distribution.

	(e) At Normal Retirement Date, or such other date when the Participant or the Participant’s Beneficiary is entitled to receive benefits, the Participant’s Voluntary Contribution Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary.

	(f) To the extent a Participant has previously made mandatory Employee contributions under prior provisions of this Plan, such contributions will be treated as after-tax voluntary Employee contributions.

4.9 QUALIFIED VOLUNTARY EMPLOYEE CONTRIBUTIONS


	(a) If this is an amendment to a Plan that previously permitted deductible voluntary Employee contributions, then each Participant who made “Qualified Voluntary Employee Contributions” within the meaning of Code Section 219(e)(2) as it existed prior to the enactment of the Tax Reform Act of 1986, shall have such contributions held in a separate Qualified Voluntary Employee Contribution Account which shall be fully Vested at all times. Such contributions, however, shall not be permitted for taxable years beginning after December 31, 1986.

	(b) A Participant may, upon written request delivered to the Administrator, make withdrawals from such Participant’s Qualified Voluntary Employee Contribution Account. Any distribution shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder.

	(c) At Normal Retirement Date, or such other date when the Participant or the Participant’s Beneficiary is entitled to receive benefits, the Qualified Voluntary Employee Contribution Account shall be used to provide additional benefits to the Participant or the Participant’s Beneficiary.

4.10 DIRECTED INVESTMENT ACCOUNT


	(a) If elected in the Adoption Agreement, all Participants may direct the Trustee as to the investment of all or a portion of their individual account balances as set forth in the Adoption Agreement and within limits set by the Employer. Participants may direct the Trustee, in writing (or in such other form which is acceptable to the Trustee), to invest their accounts in specific assets, specific funds or other investments permitted under the Plan and the Participant Direction Procedures. That portion of the account of any Participant that is subject to investment direction of such Participant will be considered a Participant Directed Account.

	(b) The Administrator will establish a Participant Direction Procedure, to be applied in a uniform and nondiscriminatory manner, setting forth the permissible investment options under this Section, how often changes between investments may be made, and any other limitations and provisions that the Administrator may impose on a Participant’s right to direct investments.

	(c) The Administrator may, in its discretion, include or exclude by amendment or other action from the Participant Direction Procedures such instructions, guidelines or policies as it deems necessary or appropriate to ensure proper administration of the Plan, and may interpret the same accordingly.

	(d) As of each Valuation Date, all Participant Directed Accounts shall be charged or credited with the net earnings, gains, losses and expenses as well as any appreciation or depreciation in the market value using publicly listed fair market values when available or appropriate as follows:

		(1) to the extent the assets in a Participant Directed Account are accounted for as pooled assets or investments, the allocation of earnings, gains and losses of each Participant’s Account shall be based upon the total amount of funds so invested in a manner proportionate to the Participant’s share of such pooled investment; and

		(2) to the extent the assets in a Participant Directed Account are accounted for as segregated assets, the allocation of earnings, gains on and losses from such assets shall be made on a separate and distinct basis.

	(e) Investment directions will be processed as soon as administratively practicable after proper investment directions are received from the Participant. No guarantee is made by the Plan, Employer, Administrator or Trustee that investment directions will be processed on a daily basis, and no guarantee is made in any respect regarding

(C) 2001 Markley Actuarial Services, Inc.

DEFINED CONTRIBUTION PLAN


	the processing time of an investment direction. Notwithstanding any other provision of the Plan, the Employer, Administrator or Trustee reserves the right to not value an investment option on any given Valuation Date for any reason deemed appropriate by the Employer, Administrator or Trustee. Furthermore, the processing of any investment transaction may be delayed for any legitimate business reason (including, but not limited to, failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the failure of a service provider to timely receive values or prices, and correction for errors or omissions or the errors or omissions of any service provider). The processing date of a transaction will be binding for all purposes of the Plan and considered the applicable Valuation Date for an investment transaction.

	(f) If the Employer has elected in the Adoption Agreement that it intends to operate any portion of this Plan as an Act Section 404(c) plan, the Participant Direction Procedures should provide an explanation of the circumstances under which Participants and their Beneficiaries may give investment instructions, including but not limited to, the following:


	(1) the conveyance of instructions by the Participants and their Beneficiaries to invest Participant Directed Accounts in a Directed Investment Option;

	(2) the name, address and phone number of the Fiduciary (and, if applicable, the person or persons designated by the Fiduciary to act on its behalf) responsible for providing information to the Participant or a Beneficiary upon request relating to the Directed Investment Options;

	(3) applicable restrictions on transfers to and from any Designated Investment Alternative;

	(4) any restrictions on the exercise of voting, tender and similar rights related to a Directed Investment Option by the Participants or their Beneficiaries;

	(5) a description of any transaction fees and expenses which affect the balances in Participant Directed Accounts in connection with the purchase or sale of a Directed Investment Option; and

	(6) general procedures for the dissemination of investment and other information relating to the Designated Investment Alternatives as deemed necessary or appropriate, including but not limited to a description of the following:


	(i) the investment vehicles available under the Plan, including specific information regarding any Designated Investment Alternative;

	(ii) any designated Investment Managers; and

	(iii) a description of the additional information that may be obtained upon request from the Fiduciary designated to provide such information.


	(g) With respect to those assets in a Participant’s Directed Account, the Participant or Beneficiary shall direct the Trustee with regard to any voting, tender and similar rights associated with the ownership of such assets (hereinafter referred to as the “Stock Rights”) as follows based on the election made in the Adoption Agreement:

		(1) each Participant or Beneficiary shall direct the Trustee to vote or otherwise exercise such Stock Rights in accordance with the provisions, conditions and terms of any such Stock Rights;

		(2) such directions shall be provided to the Trustee by the Participant or Beneficiary in accordance with the procedure as established by the Administrator and the Trustee shall vote or otherwise exercise such Stock Rights with respect to which it has received directions to do so under this Section; and

		(3) to the extent to which a Participant or Beneficiary does not instruct the Trustee to vote or otherwise exercise such Stock Rights, such Participants or Beneficiaries shall be deemed to have directed the Trustee that such Stock Rights remain nonvoted and unexercised.

		(h) Any information regarding investments available under the Plan, to the extent not required to be described in the Participant Direction Procedures, may be provided to Participants in one or more documents (or in any other form, including, but not limited to, electronic media) which are separate from the Participant Direction Procedures and are not thereby incorporated by reference into this Plan.

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DEFINED CONTRIBUTION PLAN

4.11 INTEGRATION IN MORE THAN ONE PLAN

If the Employer maintains qualified retirement plans that provide for permitted disparity (integration), the provisions of Section 4.3(b)(4) will apply. Furthermore, if the Employer maintains two or more standardized paired plans, only one plan may provide for permitted disparity.

4.12 QUALIFIED MILITARY SERVICE

Notwithstanding any provisions of this Plan to the contrary, effective as of the later of December 12, 1994, or the Effective Date of the Plan, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Code Section 414(u). Furthermore, loan repayments may be suspended under this Plan as permitted under Code Section 414(u)(4).

ARTICLE V
VALUATIONS

5.1 VALUATION OF THE TRUST FUND

The Administrator shall direct the Trustee, as of each Valuation Date, to determine the net worth of the assets comprising the Trust Fund as it exists on the Valuation Date. In determining such net worth, the Trustee shall value the assets comprising the Trust Fund at their fair market value (or their contractual value in the case of a Contract or Policy) as of the Valuation Date and may deduct all expenses for which the Trustee has not yet been paid by the Employer or the Trust Fund. The Trustee may update the value of any shares held in a Participant Directed Account by reference to the number of shares held on behalf of the Participant, priced at the market value as of the Valuation Date.

5.2 METHOD OF VALUATION

In determining the fair market value of securities held in the Trust Fund which are listed on a registered stock exchange, the Administrator shall direct the Trustee to value the same at the prices they were last traded on such exchange preceding the close of business on the Valuation Date. If such securities were not traded on the Valuation Date, or if the exchange on which they are traded was not open for business on the Valuation Date, then the securities shall be valued at the prices at which they were last traded prior to the Valuation Date. Any unlisted security held in the Trust Fund shall be valued at its bid price next preceding the close of business on the Valuation Date, which bid price shall be obtained from a registered broker or an investment banker. In determining the fair market value of assets other than securities for which trading or bid prices can be obtained, the Trustee may appraise such assets itself, or in its discretion, employ one or more appraisers for that purpose and rely on the values established by such appraiser or appraisers.

ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS

6.1 DETERMINATION OF BENEFITS UPON RETIREMENT

Every Participant may terminate employment with the Employer and retire for purposes hereof on the Participant’s Normal Retirement Date or Early Retirement Date. However, a Participant may postpone the termination of employment with the Employer to a later date, in which event the participation of such Participant in the Plan, including the right to receive allocations pursuant to Section 4.3, shall continue until such Participant’s Retirement Date. Upon a Participant’s Retirement Date, or if elected in the Adoption Agreement, the attainment of Normal Retirement Date without termination of employment with the Employer, or as soon thereafter as is practicable, the Administrator shall direct the distribution, at the election of the Participant, of the Participant’s entire Vested interest in the Plan in accordance with Section 6.5.

6.2 DETERMINATION OF BENEFITS UPON DEATH


	(a) Upon the death of a Participant before the Participant’s Retirement Date or other termination of employment, all amounts credited to such Participant’s Combined Account shall, if elected in the Adoption Agreement, become fully Vested. The Administrator shall direct, in accordance with the provisions of Sections 6.6 and 6.7, the distribution of the deceased Participant’s Vested accounts to the Participant’s Beneficiary.

	(b) Upon the death of a Former Participant, the Administrator shall direct, in accordance with the provisions of Sections 6.6 and 6.7, the distribution of any remaining Vested amounts credited to the accounts of such deceased Former Participant to such Former Participant’s Beneficiary.

	(c) The Administrator may require such proper proof of death and such evidence of the right of any person to receive payment of the value of the account of a deceased Participant or Former Participant as the Administrator may deem desirable. The Administrator’s determination of death and of the right of any person to receive payment shall be conclusive.

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DEFINED CONTRIBUTION PLAN


	(d) Unless otherwise elected in the manner prescribed in Section 6.6, the Beneficiary of the Pre-Retirement Survivor Annuity shall be the Participant’s surviving spouse. Except, however, the Participant may designate a Beneficiary other than the spouse for the Pre-Retirement Survivor Annuity if:

		(1) the Participant and the Participant’s spouse have validly waived the Pre-Retirement Survivor Annuity in the manner prescribed in Section 6.6, and the spouse has waived the right to be the Participant’s Beneficiary,

		(2) the Participant is legally separated or has been abandoned (within the meaning of local law) and the Participant has a court order to such effect (and there is no “qualified domestic relations order” as defined in Code Section 414(p) which provides otherwise),

		(3) the Participant has no spouse, or

		(4) the spouse cannot be located.

	In such event, the designation of a Beneficiary shall be made on a form satisfactory to the Administrator. A Participant may at any time revoke a designation of a Beneficiary or change a Beneficiary by filing written (or in such other form as permitted by the IRS) notice of such revocation or change with the Administrator. However, the Participant’s spouse must again consent in writing (or in such other form as permitted by the IRS) to any change in Beneficiary unless the original consent acknowledged that the spouse had the right to limit consent only to a specific Beneficiary and that the spouse voluntarily elected to relinquish such right.

	(e) A Participant may, at any time, designate a Beneficiary for death benefits, if any, payable under the Plan that are in excess of the Pre-Retirement Survivor Annuity without the waiver or consent of the Participant’s spouse. In the event no valid designation of Beneficiary exists, or if the Beneficiary is not alive at the time of the Participant’s death, the death benefit will be paid in the following order of priority, unless the Employer specifies a different order of priority in an addendum to the Adoption Agreement, to:


	(1) The Participant’s surviving spouse;

	(2) The Participant’s children, including adopted children, per stirpes

	(3) The Participant’s surviving parents, in equal shares; or

	(4) The Participant’s estate.


	If the Beneficiary does not predecease the Participant, but dies prior to distribution of the death benefit, the death benefit will be paid to the Beneficiary’s estate.

	(f) Notwithstanding anything in this Section to the contrary, if a Participant has designated the spouse as a Beneficiary, then a divorce decree or a legal separation that relates to such spouse shall revoke the Participant’s designation of the spouse as a Beneficiary unless the decree or a qualified domestic relations order (within the meaning of Code Section 414(p)) provides otherwise or a subsequent Beneficiary designation is made.

	(g) If the Plan provides an insured death benefit and a Participant dies before any insurance coverage to which the Participant is entitled under the Plan is effected, the death benefit from such insurance coverage shall be limited to the premium which was or otherwise would have been used for such purpose.

	(h) In the event of any conflict between the terms of this Plan and the terms of any Contract issued hereunder, the Plan provisions shall control.

6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY

In the event of a Participant’s Total and Permanent Disability prior to the Participant’s Retirement Date or other termination of employment, all amounts credited to such Participant’s Combined Account shall, if elected in the Adoption Agreement, become fully Vested. In the event of a Participant’s Total and Permanent Disability, the Administrator, in accordance with the provisions of Sections 6.5 and 6.7, shall direct the distribution to such Participant of the entire Vested interest in the Plan.

DEFINED CONTRIBUTION PLAN

6.4 DETERMINATION OF BENEFITS UPON TERMINATION


	(a) If a Participant’s employment with the Employer is terminated for any reason other than death, Total and Permanent Disability, or retirement, then such Participant shall be entitled to such benefits as are provided herein.

	Distribution of the funds due to a Terminated Participant shall be made on the occurrence of an event which would result in the distribution had the Terminated Participant remained in the employ of the Employer (upon the Participant’s death, Total and Permanent Disability, Early or Normal Retirement). However, at the election of the Participant, the Administrator shall direct that the entire Vested portion of the Terminated Participant’s Combined Account be payable to such Terminated Participant provided the conditions, if any, set forth in the Adoption Agreement have been satisfied. Any distribution under this paragraph shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder.

	Regardless of whether distributions in kind are permitted, in the event the amount of the Vested portion of the Terminated Participant’s Combined Account equals or exceeds the fair market value of any insurance Contracts, the Trustee, when so directed by the Administrator and agreed to by the Terminated Participant, shall assign, transfer, and set over to such Terminated Participant all Contracts on such Terminated Participant’s life in such form or with such endorsements, so that the settlement options and forms of payment are consistent with the provisions of Section 6.5. In the event that the Terminated Participant’s Vested portion does not at least equal the fair market value of the Contracts, if any, the Terminated Participant may pay over to the Trustee the sum needed to make the distribution equal to the value of the Contracts being assigned or transferred, or the Trustee, pursuant to the Participant’s election, may borrow the cash value of the Contracts from the Insurer so that the value of the Contracts is equal to the Vested portion of the Terminated Participant’s Combined Account and then assign the Contracts to the Terminated Participant.

	Notwithstanding the above, unless otherwise elected in the Adoption Agreement, if the value of a Terminated Participant’s Vested benefit derived from Employer and Employee contributions does not exceed $5,000 (or, $3,500 for distributions made prior to the later of the first day of the first Plan Year beginning on or after August 5, 1997, or the date specified in the Adoption Agreement) the Administrator shall direct that the entire Vested benefit be paid to such Participant in a single lump-sum without regard to the consent of the Participant or the Participant’s spouse. A Participant’s Vested benefit shall not include Qualified Voluntary Employee Contributions within the meaning of Code Section 72(o)(5)(B) for Plan Years beginning prior to January 1, 1989. Furthermore, the determination of whether the $5,000 (or, if applicable, $3,500) threshold has been exceeded is generally based on the value of the Vested benefit as of the Valuation Date preceding the date of the distribution. However, if the “lookback rule” applies, the applicable threshold is deemed to be exceeded if the Vested benefit exceeded the applicable threshold at the time of any prior distribution. The “lookback rule” generally applies to all distributions made prior to March 22, 1999. With respect to distributions made on or after March 22, 1999, the “lookback rule” applies if either (1) the provisions of Section 6.12 do not apply or (2) a Participant has begun to receive distributions pursuant to an optional form of benefit under which at least one scheduled periodic distribution has not yet been made, and if the value of the Participant’s benefit, determined at the time of the first distribution under that optional form of benefit exceeded the applicable threshold. However, the Plan does not fail to satisfy the requirements of this paragraph if, prior to the adoption of this Prototype Plan, the “lookback rule” was applied to all distributions. Notwithstanding the preceding, the “lookback rule” will not apply to any distributions made on or after October 17, 2000.

	(b) The Vested portion of any Participant’s Account shall be a percentage of such Participant’s Account determined on the basis of the Participant’s number of Years of Service (or Periods of Service if the Elapsed Time Method is elected) according to the vesting schedule specified in the Adoption Agreement. However, a Participant’s entire interest in the Plan shall be non-forfeitable upon the Participant’s Normal Retirement Age (if the Participant is employed by the Employer on or after such date).

	(c) For any Top Heavy Plan Year, the minimum top heavy vesting schedule elected by the Employer in the Adoption Agreement will automatically apply to the Plan. The minimum top heavy vesting schedule applies to all benefits within the meaning of Code Section 411(a)(7) except those attributable to Employee contributions, including benefits accrued before the effective date of Code Section 416 and benefits accrued before the Plan became top heavy. Further, no decrease in a Participant’s Vested percentage shall occur in the event the Plan’s status as top heavy changes for any Plan Year. However, this Section does not apply to the account balances of any Employee who does not have an Hour of Service after the Plan has initially become top heavy and the Vested percentage of such Employee’s Participant’s Account shall be determined without regard to this Section 6.4(c).

	If in any subsequent Plan Year the Plan ceases to be a Top Heavy Plan, then unless a specific Plan amendment is made to provide otherwise, the Administrator will continue to use the vesting schedule in effect while the Plan was a Top Heavy Plan.

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DEFINED CONTRIBUTION PLAN


	(d) Upon the complete discontinuance of the Employer’s contributions to the Plan (if this is a profit sharing plan) or upon any full or partial termination of the Plan, all amounts then credited to the account of any affected Participant shall become 100% Vested and shall not thereafter be subject to Forfeiture.

	(e) If this is an amended or restated Plan, then notwithstanding the vesting schedule specified in the Adoption Agreement, the Vested percentage of a Participant’s Account shall not be less than the Vested percentage attained as of the later of the effective date or adoption date of this amendment and restatement. The computation of a Participant’s nonforfeitable percentage of such Participant’s interest in the Plan shall not be reduced as the result of any direct or indirect amendment to this Article, or due to changes in the Plan’s status as a Top Heavy Plan. Furthermore, if the Plan’s vesting schedule is amended, then the amended schedule will only apply to those Participants who complete an Hour of Service after the effective date of the amendment.

	(f) If the Plan’s vesting schedule is amended, or if the Plan is amended in any way that directly or indirectly affects the computation of the Participant’s nonforfeitable percentage or if the Plan is deemed amended by an automatic change to a top heavy vesting schedule, then each Participant with at least three (3) Years of Service (or Periods of Service if the Elapsed Time Method is elected) as of the expiration date of the election period may elect to have such Participant’s nonforfeitable percentage computed under the Plan without regard to such amendment or change. If a Participant fails to make such election, then such Participant shall be subject to the new vesting schedule. The Participant’s election period shall commence on the adoption date of the amendment and shall end sixty (60) days after the latest of:

		(1) the adoption date of the amendment,

		(2) the effective date of the amendment, or

		(3) the date the Participant receives written notice of the amendment from the Employer or Administrator.

	(g) In determining Years of Service or Periods of Service for purposes of vesting under the Plan, Years of Service or Periods of Service shall be excluded as elected in the Adoption Agreement.

6.5 DISTRIBUTION OF BENEFITS


	(a)(1) Unless otherwise elected as provided below, a Participant who is married on the Annuity Starting Date and who does not die before the Annuity Starting Date shall receive the value of all Plan benefits in the form of a Joint and Survivor Annuity. The Joint and Survivor Annuity is an annuity that commences immediately and shall be equal in value to a single life annuity. Such joint and survivor benefits following the Participant’s death shall continue to the spouse during the spouse’s lifetime at a rate equal to either fifty percent (50%), seventy-five percent (75%) (or, sixty-six and two-thirds percent (66 2/3%) if the Insurer used to provide the annuity does not offer a joint and seventy-five percent (75%) annuity), or one hundred percent (100%) of the rate at which such benefits were payable to the Participant. Unless otherwise elected in the Adoption Agreement, a joint and fifty percent (50%) survivor annuity shall be considered the designated qualified Joint and Survivor Annuity and the normal form of payment for the purposes of this Plan. However, the Participant may, without spousal consent, elect an alternative Joint and Survivor Annuity, which alternative shall be equal in value to the designated qualified Joint and Survivor Annuity. An unmarried Participant shall receive the value of such Participant’s benefit in the form of a life annuity. Such unmarried Participant, however, may elect to waive the life annuity. The election must comply with the provisions of this Section as if it were an election to waive the Joint and Survivor Annuity by a married Participant, but without fulfilling the spousal consent requirement. The Participant may elect to have any annuity provided for in this Section distributed upon the attainment of the “earliest retirement age” under the Plan. The “earliest retirement age” is the earliest date on which, under the Plan, the Participant could elect to receive retirement benefits.

		(2) Any election to waive the Joint and Survivor Annuity must be made by the Participant in writing (or in such other form as permitted by the IRS) during the election period and be consented to in writing (or in such other form as permitted by the IRS) by the Participant’s spouse. If the spouse is legally incompetent to give consent, the spouse’s legal guardian, even if such guardian is the Participant, may give consent. Such election shall designate a Beneficiary (or a form of benefits) that may not be changed without spousal consent (unless the consent of the spouse expressly permits designations by the Participant without the requirement of further consent by the spouse). Such spouse’s consent shall be irrevocable and must acknowledge the effect of such election and be witnessed by a Plan representative or a notary public. Such consent shall not be required if it is established to the satisfaction of the Administrator that the required consent cannot be obtained because there is no spouse, the spouse cannot be located, or other circumstances that may be prescribed by Regulations. The election made by the Participant and consented to by such Participant’s spouse may be revoked by the Participant in writing (or in such other form as permitted by the IRS) without the consent of the spouse at any time during the election period. A revocation of a prior election shall cause the Participant’s benefits to be distributed as a Joint and Survivor Annuity. The number of revocations shall not be limited.

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DEFINED CONTRIBUTION PLAN


		Any new election must comply with the requirements of this paragraph. A former spouse’s waiver shall not be binding on a new spouse.

		(3) The election period to waive the Joint and Survivor Annuity shall be the ninety (90) day period ending on the Annuity Starting Date.

		(4) For purposes of this Section, spouse or surviving spouse means the spouse or surviving spouse of the Participant, provided that a former spouse will be treated as the spouse or surviving spouse and a current spouse will not be treated as the spouse or surviving spouse to the extent provided under a qualified domestic relations order as described in Code Section 414(p).

		(5) With regard to the election, except as otherwise provided herein, the Administrator shall provide to the Participant no less than thirty (30) days and no more than ninety (90) days before the Annuity Starting Date a written (or such other form as permitted by the IRS) explanation of:

			(i) the terms and conditions of the Joint and Survivor Annuity,

			(ii) the Participant’s right to make and the effect of an election to waive the Joint and Survivor Annuity,

			(iii) the right of the Participant’s spouse to consent to any election to waive the Joint and Survivor Annuity, and

			(iv) the right of the Participant to revoke such election, and the effect of such revocation.

		(6) Any distribution provided for in this Section made on or after December 31, 1996, may commence less than thirty (30) days after the notice required by Code Section 417(a)(3) is given provided the following requirements are satisfied:

			(i) the Administrator clearly informs the Participant that the Participant has a right to a period of thirty (30) days after receiving the notice to consider whether to waive the Joint and Survivor Annuity and to elect (with spousal consent) a form of distribution other than a Joint and Survivor Annuity;

			(ii) the Participant is permitted to revoke any affirmative distribution election at least until the Annuity Starting Date or, if later, at any time prior to the expiration of the seven (7) day period that begins the day after the explanation of the Joint and Survivor Annuity is provided to the Participant;

			(iii) the Annuity Starting Date is after the time that the explanation of the Joint and Survivor Annuity is provided to the Participant. However, the Annuity Starting Date may be before the date that any affirmative distribution election is made by the Participant and before the date that the distribution is permitted to commence under (iv) below; and

			(iv) distribution in accordance with the affirmative election does not commence before the expiration of the seven (7) day period that begins the day after the explanation of the Joint and Survivor Annuity is provided to the Participant.

	(b) In the event a married Participant duly elects pursuant to paragraph (a)(2) above not to receive the benefit in the form of a Joint and Survivor Annuity, or if such Participant is not married, in the form of a life annuity, the Administrator, pursuant to the election of the Participant, shall direct the distribution to a Participant or Beneficiary any amount to which the Participant or Beneficiary is entitled under the Plan in one or more of the following methods which are permitted pursuant to the Adoption Agreement:

		(1) One lump-sum payment in cash or in property that is allocated to the accounts of the Participant at the time of the distribution;

		(2) Partial withdrawals;

		(3) Payments over a period certain in monthly, quarterly, semiannual, or annual cash installments. In order to provide such installment payments, the Administrator may (A) segregate the aggregate amount thereof in a separate, federally insured savings account, certificate of deposit in a bank or savings and loan association, money market certificate or other liquid short-term security or (B) purchase a nontransferable annuity contract for a term certain (with no life contingencies) providing for such payment. The period over

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DEFINED CONTRIBUTION PLAN


		which such payment is to be made shall not extend beyond the Participant’s life expectancy (or the life expectancy of the Participant and the Participant’s designated Beneficiary);

		(4) Purchase of or providing an annuity. However, such annuity may not be in any form that will provide for payments over a period extending beyond either the life of the Participant (or the lives of the Participant and the Participant’s designated Beneficiary) or the life expectancy of the Participant (or the life expectancy of the Participant and the Participant’s designated Beneficiary).

	(c) Benefits may not be paid without the Participant’s and the Participant’s spouse’s consent if the present value of the Participant’s Joint and Survivor Annuity derived from Employer and Employee contributions exceeds, or has ever exceeded, $5,000 (or $3,500, for distributions made prior to the later of the first day of the first Plan Year beginning after August 5, 1997, or the date specified in the Adoption Agreement) and the benefit is “immediately distributable.” However, spousal consent is not required if the distribution will made in the form a Qualified Joint and Survivor Annuity and the benefit is “immediately distributable.” A benefit is “immediately distributable” if any part of the benefit could be distributed to the Participant (or surviving spouse) before the Participant attains (or would have attained if not deceased) the later of the Participant’s Normal Retirement Age or age 62.

	If the value of the Participant’s benefit derived from Employer and Employee contributions does not exceed, and has never exceeded at the time of any prior distribution, $5,000 (or, if applicable, $3,500), then the Administrator will distribute such benefit in a lump-sum without such Participant’s consent. No distribution may be made under the preceding sentence after the Annuity Starting Date unless the Participant and the Participant’s spouse consent in writing (or in such other form as permitted by the IRS) to such distribution. Any consent required under this paragraph must be obtained not more than ninety (90) days before commencement of the distribution and shall be made in a manner consistent with Section 6.5(a)(2). Notwithstanding the preceding, the “lookback rule” (which provides that if the present value at the time of a prior distribution exceeded the applicable dollar threshold, then the present value at any subsequent time is deemed to exceed the threshold) will not apply to any distributions made on or after October 17, 2000.

	(d) The following rules will apply with respect to the consent requirements set forth in subsection (c):

		(1) No consent shall be valid unless the Participant has received a general description of the material features and an explanation of the relative values of the optional forms of benefit available under the Plan that would satisfy the notice requirements of Code Section 417;

		(2) The Participant must be informed of the right to defer receipt of the distribution. If a Participant fails to consent, it shall be deemed an election to defer the commencement of payment of any benefit. However, any election to defer the receipt of benefits shall not apply with respect to distributions that are required under Section 6.5(e);

		(3) Notice of the rights specified under this paragraph shall be provided no less than thirty (30) days and no more than ninety (90) days before the Annuity Starting Date;

		(4) Written (or such other form as permitted by the IRS) consent of the Participant to the distribution must not be made before the Participant receives the notice and must not be made more than ninety (90) days before the Annuity Starting Date; and

		(5) No consent shall be valid if a significant detriment is imposed under the Plan on any Participant who does not consent to the distribution.

	(e) Notwithstanding any provision in the Plan to the contrary, for Plan Years beginning after December 31, 1996, the distribution of a Participant’s benefits, whether under the Plan or through the purchase of an annuity Contract, shall be made in accordance with the following requirements and shall otherwise comply with Code Section 401(a)(9) and the Regulations thereunder (including Regulation 1.401(a)(9)-2):

		(1) A Participant’s benefits will be distributed or must begin to be distributed not later than the Participant’s “required beginning date.” Alternatively, distributions to a Participant must begin no later than the Participant’s “required beginning date” and must be made over the life of the Participant (or the lives of the Participant and the Participant’s designated Beneficiary) or the life expectancy of the Participant (or the life expectancies of the Participant and the Participant’s designated Beneficiary) in accordance with Regulations. However, if the distribution is to be in the form of a joint and survivor annuity or single life annuity, then distributions must begin no later than the “required beginning date” and must be made over the life of the Participant (or the lives of the Participant and the Participant’s designated Beneficiary) in accordance with Regulations.

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DEFINED CONTRIBUTION PLAN


	(2) The “required beginning date” for a Participant who is a “five percent (5%) owner” with respect to the Plan Year ending in the calendar year in which such Participant attains age 70 1/2 means April 1st of the calendar year following the calendar year in which the Participant attains age 70 1/2. Once distributions have begun to a “five percent (5%) owner” under this subsection, they must continue to be distributed, even if the Participant ceases to be a “five percent (5%) owner” in a subsequent year.

	(3) The “required beginning date” for a Participant other than a “five percent (5%) owner” means, unless the Employer has elected to continue the pre-SBJPA rules in the Adoption Agreement, April 1st of the calendar year following the later of the calendar year in which the Participant attains age 70 1/2 or the calendar year in which the Participant retires.

	(4) If the election is made to continue the pre-SBJPA rules, then except as provided below, the “required beginning date” is April 1st of the calendar year following the calendar year in which a Participant attains age 70 1/2.

		(i) However, the “required beginning date” for a Participant who had attained age 70 1/2 before January 1, 1988, and was not a five percent (5%) owner (within the meaning of Code Section 416) at any time during the Plan Year ending with or within the calendar year in which the Participant attained age 66 1/2 or any subsequent Plan Year, is April 1st of the calendar year following the calendar in which the Participant retires.

		(ii) Notwithstanding (i) above, the “required beginning date” for a Participant who was a five percent (5%) owner (within the meaning of Code Section 416) at any time during the five (5) Plan Year period ending in the calendar year in which the Participant attained age 70 1/2 is April 1st of the calendar year in which the Participant attained age 70 1/2. In the case of a Participant who became a five percent (5%) owner during any Plan Year after the calendar year in which the Participant attained age 70 1/2, the “required beginning date” is April 1st of the calendar year following the calendar year in which such subsequent Plan Year ends.

	(5) If this is an amendment or restatement of a plan that contained the pre-SBJPA rules and an election is made to use the post-SBJPA rules, then the transition rules elected in the Adoption Agreement will apply.

	(6) Except as otherwise provided herein, “five percent (5%) owner” means, for purposes of this Section, a Participant who is a five percent (5%) owner as defined in Code Section 416 at any time during the Plan Year ending with or within the calendar year in which such owner attains age 70 1/2.

	(7) Distributions to a Participant and such Participant’s Beneficiaries will only be made in accordance with the incidental death benefit requirements of Code Section 401(a)(9)(G) and the Regulations thereunder.

	(8) For purposes of this Section, the life expectancy of a Participant and/or a Participant’s spouse (other than in the case of a life annuity) shall or shall not be redetermined annually as elected in the Adoption Agreement and in accordance with Regulations. If the Participant or the Participant’s spouse may elect, pursuant to the Adoption Agreement, to have life expectancies recalculated, then the election, once made shall be irrevocable. If no election is made by the time distributions must commence, then the life expectancy of the Participant and the Participant’s spouse shall not be subject to recalculation. Life expectancy and joint and last survivor life expectancy shall be computed using the return multiples in Tables V and VI of Regulation Section 1.72-9.

	(9) With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2001, or if later, the date specified in the Adoption Agreement, the Plan will apply the minimum distribution requirements of Code Section 401(a)(9) in accordance with the Regulations under section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of the Plan to the contrary. This amendment shall continue in effect until the end of the last calendar year beginning before the effective date of final Regulations under section 401(a)(9) or such other date as may be specified in guidance published by the Internal Revenue Service.

	However, if the date specified in the Adoption Agreement is a date in 2001 other than January 1, 2001, then with respect to distributions under the Plan made on or after such date for calendar years beginning on or after January 1, 2001, the Plan will apply the minimum distribution requirements of Code Section 401(a)(9) in accordance with the Regulations under section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of the Plan to the contrary. If the total amount of required minimum distributions made to a participant for 2001 prior to the specified date are equal to or greater than the amount of required minimum distributions determined under the 2001 Proposed Regulations, then no additional distributions are required for such participant for 2001 on or after such date. If the total amount of required minimum distributions made to a participant for 2001 prior to the specified date are less than the amount

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DEFINED CONTRIBUTION PLAN


		determined under the 2001 Proposed Regulations, then the amount of required minimum distributions for 2001 on or after such date will be determined so that the total amount of required minimum distributions for 2001 is the amount determined under the 2001 Proposed Regulations. This amendment shall continue in effect until the end of the last calendar year beginning before the effective date of final Regulations under section 401(a)(9) or such other date as may be specified in guidance published by the Internal Revenue Service.

	(f) All annuity Contracts under this Plan shall be non-transferable when distributed. Furthermore, the terms of any annuity Contract purchased and distributed to a Participant or spouse shall comply with all of the requirements of this Plan.

	(g) Subject to the spouse’s right of consent afforded under the Plan, the restrictions imposed by this Section shall not apply if a Participant has, prior to January 1, 1984, made a written designation to have retirement benefits paid in an alternative method acceptable under Code Section 401(a) as in effect prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA).

	(h) If a distribution is made to a Participant who has not severed employment and who is not fully Vested in the Participant’s Account, and the Participant may increase the Vested percentage in such account, then at any relevant time the Participant’s Vested portion of the account will be equal to an amount (“X”) determined by the formula:

X equals P (AB plus D) - D

	For purposes of applying the formula: P is the Vested percentage at the relevant time, AB is the account balance at the relevant time, D is the amount of distribution, and the relevant time is the time at which, under the Plan, the Vested percentage in the account cannot increase.

	However, the Employer may attach an addendum to the Adoption Agreement to provide that a separate account shall be established for the Participant’s interest in the Plan as of the time of the distribution, and at any relevant time the Participant’s Vested portion of the separate account will be equal to an amount determined as follows: P (AB plus (R x D)) - (R x D) where R is the ratio of the account balance at the relevant time to the account balance after distribution and the other terms have the same meaning as in the preceding paragraph. Any amendment to change the formula in accordance with the preceding sentence shall not be considered an amendment which causes this Plan to become an individually designed Plan.

	(i) If this is a Plan amendment that eliminates or restricts the ability of a Participant to receive payment of the Participant’s interest in the Plan under a particular optional form of benefit, then the amendment shall not apply to any distribution with an annuity starting date earlier than the earlier of: (i) the 90th day after the date the Participant receiving the distribution has been furnished a summary that reflects the amendment and that satisfies the Act requirements at 29 CFR 2520.104b-3 relating to a summary of material modifications or (ii) the first day of the second Plan Year following the Plan Year in which the amendment is adopted.

6.6 DISTRIBUTION OF BENEFITS UPON DEATH

	(a) Unless otherwise elected as provided below, a Vested Participant who dies before the Annuity Starting Date and who has a surviving spouse shall have the Pre-Retirement Survivor Annuity paid to the surviving spouse. The Participant’s spouse may direct that payment of the Pre-Retirement Survivor Annuity commence within a reasonable period after the Participant’s death. If the spouse does not so direct, payment of such benefit will commence at the time the Participant would have attained the later of Normal Retirement Age or age 62. However, the spouse may elect a later commencement date. Any distribution to the Participant’s spouse shall be subject to the rules specified in Section 6.6(h).

	(b) Any election to waive the Pre-Retirement Survivor Annuity before the Participant’s death must be made by the Participant in writing (or in such other form as permitted by the IRS) during the election period and shall require the spouse’s irrevocable consent in the same manner provided for in Section 6.5(a)(2). Further, the spouse’s consent must acknowledge the specific nonspouse Beneficiary. Notwithstanding the foregoing, the nonspouse Beneficiary need not be acknowledged, provided the consent of the spouse acknowledges that the spouse has the right to limit consent only to a specific Beneficiary and that the spouse voluntarily elects to relinquish such right.

	(c) The election period to waive the Pre-Retirement Survivor Annuity shall begin on the first day of the Plan Year in which the Participant attains age 35 and end on the date of the Participant’s death. An earlier waiver (with spousal consent) may be made provided a written (or such other form as permitted by the IRS) explanation of the Pre-Retirement Survivor Annuity is given to the Participant and such waiver becomes invalid at the beginning of the Plan Year in which the Participant turns age 35. In the event a Participant separates from service prior to the beginning of the election period, the election period shall begin on the date of such separation from service.

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DEFINED CONTRIBUTION PLAN


	(d) With regard to the election, the Administrator shall provide each Participant within the applicable election period, with respect to such Participant (and consistent with Regulations), a written (or such other form as permitted by the IRS) explanation of the Pre-Retirement Survivor Annuity containing comparable information to that required pursuant to Section 6.5(a)(5). For the purposes of this paragraph, the term “applicable period” means, with respect to a Participant, whichever of the following periods ends last:

		(1) The period beginning with the first day of the Plan Year in which the Participant attains age 32 and ending with the close of the Plan Year preceding the Plan Year in which the Participant attains age 35;

		(2) A reasonable period after the individual becomes a Participant;

		(3) A reasonable period ending after the Plan no longer fully subsidizes the cost of the Pre-Retirement Survivor Annuity with respect to the Participant; or

		(4) A reasonable period ending after Code Section 401(a)(11) applies to the Participant.

	For purposes of applying this subsection, a reasonable period ending after the enumerated events described in (2), (3) and (4) is the end of the two (2) year period beginning one (1) year prior to the date the applicable event occurs, and ending one (1) year after that date. In the case of a Participant who separates from service before the Plan Year in which age 35 is attained, notice shall be provided within the two (2) year period beginning one (1) year prior to separation and ending one (1) year after separation. If such a Participant thereafter returns to employment with the Employer, the applicable period for such Participant shall be redetermined.

	(e) The Pre-Retirement Survivor Annuity provided for in this Section shall apply only to Participants who are credited with an Hour of Service on or after August 23, 1984. Former Participants who are not credited with an Hour of Service on or after August 23, 1984, shall be provided with rights to the Pre-Retirement Survivor Annuity in accordance with Section 303(e)(2) of the Retirement Equity Act of 1984.

	(f) If the value of the Pre-Retirement Survivor Annuity derived from Employer and Employee contributions does not exceed, and has never exceeded at the time of any prior distribution, $5,000 (or, $3,500 for distributions made prior to the later of the first day of the first Plan Year beginning after August 5, 1997, or the date specified in the Adoption Agreement) the Administrator shall direct the distribution of such amount to the Participant’s spouse as soon as practicable. No distribution may be made under the preceding sentence after the Annuity Starting Date unless the spouse consents in writing (or in such other form as permitted by the IRS). If the value exceeds, or has ever exceeded at the time of any prior distribution, $5,000 (or, if applicable, $3,500), an immediate distribution of the entire amount may be made to the surviving spouse, provided such surviving spouse consents in writing (or in such other form as permitted by the IRS) to such distribution. Any consent required under this paragraph must be obtained not more than ninety (90) days before commencement of the distribution and shall be made in a manner consistent with Section 6.5(a)(2). Notwithstanding the preceding, the “lookback rule” (which provides that if the present value at the time of a prior distribution exceeded the applicable dollar threshold, then the present value at any subsequent time is deemed to exceed the threshold) will not apply to any distributions made on or after October 17, 2000.

	(g) Death benefits may be paid to a Participant’s Beneficiary in one of the following optional forms of benefits subject to the rules specified in Section 6.6(h) and the elections made in the Adoption Agreement. Such optional forms of distributions may be elected by the Participant in the event there is an election to waive the Pre-Retirement Survivor Annuity, and for any death benefits in excess of the Pre-Retirement Survivor Annuity. However, if no optional form of distribution was elected by the Participant prior to death, then the Participant’s Beneficiary may elect the form of distribution:

		(1) One lump-sum payment in cash or in property that is allocated to the accounts of the Participant at the time of the distribution.

		(2) Partial withdrawals.

		(3) Payment in monthly, quarterly, semi-annual, or annual cash installments over a period to be determined by the Participant or the Participant’s Beneficiary. In order to provide such installment payments, the Administrator may (A) segregate the aggregate amount thereof in a separate, federally insured savings account, certificate of deposit in a bank or savings and loan association, money market certificate or other liquid short-term security or (B) purchase a nontransferable annuity contract for a term certain (with no life contingencies) providing for such payment. After periodic installments commence, the Beneficiary shall have the right to reduce the period over which such periodic installments shall be made, and the cash amount of such periodic installments shall be adjusted accordingly.

		(4) In the form of an annuity over the life expectancy of the Beneficiary.

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DEFINED CONTRIBUTION PLAN


		(5) If death benefits in excess of the Pre-Retirement Survivor Annuity are to be paid to the surviving spouse, such benefits may be paid pursuant to (1), (2) or (3) above, or used to purchase an annuity so as to increase the payments made pursuant to the Pre-Retirement Survivor Annuity.

	(h) Notwithstanding any provision in the Plan to the contrary, distributions upon the death of a Participant shall be made in accordance with the following requirements and shall otherwise comply with Code Section 401(a)(9) and the Regulations thereunder.

		(1) If it is determined, pursuant to Regulations, that the distribution of a Participant’s interest has begun and the Participant dies before the entire interest has been distributed, the remaining portion of such interest shall be distributed at least as rapidly as under the method of distribution elected pursuant to Section 6.5 as of the date of death.

		(2) If a Participant dies before receiving any distributions of the interest in the Plan or before distributions are deemed to have begun pursuant to Regulations, then the death benefit shall be distributed to the Participant’s Beneficiaries in accordance with the following rules subject to the elections made in the Adoption Agreement and subsections 6.6(h)(3) and 6.6(i) below:

			(i) The entire death benefit shall be distributed to the Participant’s Beneficiaries by December 31st of the calendar year in which the fifth anniversary of the Participant’s death occurs;

			(ii) The 5-year distribution requirement of (i) above shall not apply to any portion of the deceased Participant’s interest which is payable to or for the benefit of a designated Beneficiary. In such event, such portion shall be distributed over the life of such designated Beneficiary (or over a period not extending beyond the life expectancy of such designated Beneficiary) provided such distribution begins not later than December 31st of the calendar year immediately following the calendar year in which the Participant died (or such later date as may be prescribed by Regulations);

			(iii) However, in the event the Participant’s spouse (determined as of the date of the Participant’s death) is the designated Beneficiary, the provisions of (ii) above shall apply except that the requirement that distributions commence within one year of the Participant’s death shall not apply. In lieu thereof, distributions must commence on or before the later of: (1) December 31st of the calendar year immediately following the calendar year in which the Participant died; or (2) December 31st of the calendar year in which the Participant would have attained age 70 1/2. If the surviving spouse dies before distributions to such spouse begin, then the 5-year distribution requirement of this Section shall apply as if the spouse was the Participant.

		(3) Notwithstanding subparagraph (2) above, or any elections made in the Adoption Agreement, if a Participant’s death benefits are to be paid in the form of a Pre-Retirement Survivor Annuity, then distributions to the Participant’s surviving spouse must commence on or before the later of: (1) December 31st of the calendar year immediately following the calendar year in which the Participant died; or (2) December 31st of the calendar year in which the Participant would have attained age 70 1/2.

	(i) For purposes of Section 6.6(h)(2), the election by a designated Beneficiary to be excepted from the 5-year distribution requirement (if permitted in the Adoption Agreement) must be made no later than December 31st of the calendar year following the calendar year of the Participant’s death. Except, however, with respect to a designated Beneficiary who is the Participant’s surviving spouse, the election must be made by the earlier of: (1) December 31st of the calendar year immediately following the calendar year in which the Participant died or, if later, December 31st of the calendar year in which the Participant would have attained age 70 1/2; or (2) December 31st of the calendar year which contains the fifth anniversary of the date of the Participant’s death. An election by a designated Beneficiary must be in writing (or in such other form as permitted by the IRS) and shall be irrevocable as of the last day of the election period stated herein. In the absence of an election by the Participant or a designated Beneficiary, the 5-year distribution requirement shall apply.

	(j) For purposes of this Section, the life expectancy of a Participant and a Participant’s spouse (other than in the case of a life annuity) shall or shall not be redetermined annually as elected in the Adoption Agreement and in accordance with Regulations. If the Participant may elect, pursuant to the Adoption Agreement, to have life expectancies recalculated, then the election, once made shall be irrevocable. If no election is made by the time distributions must commence, then the life expectancy of the Participant and the Participant’s spouse shall not be subject to recalculation. Life expectancy and joint and last survivor life expectancy shall be computed using the return multiples in Tables V and VI of Regulation Section 1.72-9.

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DEFINED CONTRIBUTION PLAN


	(k) For purposes of this Section, any amount paid to a child of the Participant will be treated as if it had been paid to the surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age of majority.

	(l) In the event that less than one hundred percent (100%) of a Participant’s interest in the Plan is distributed to such Participant’s spouse, the portion of the distribution attributable to the Participant’s Voluntary Contribution Account shall be in the same proportion that the Participant’s Voluntary Contribution Account bears to the Participant’s total interest in the Plan.

	(m) Subject to the spouse’s right of consent afforded under the Plan, the restrictions imposed by this Section shall not apply if a Participant has, prior to January 1, 1984, made a written designation to have death benefits paid in an alternative method acceptable under Code Section 401(a) as in effect prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA).

6.7 TIME OF DISTRIBUTION

Except as limited by Sections 6.5 and 6.6, whenever a distribution is to be made, or a series of payments are to commence, the distribution or series of payments may be made or begun on such date or as soon thereafter as is practicable. However, unless a Former Participant elects in writing to defer the receipt of benefits (such election may not result in a death benefit that is more than incidental), the payment of benefits shall begin not later than the sixtieth (60th) day after the close of the Plan Year in which the latest of the following events occurs: (a) the date on which the Participant attains the earlier of age 65 or the Normal Retirement Age specified herein; (b) the tenth (10th) anniversary of the year in which the Participant commenced participation in the Plan; or (c) the date the Participant terminates service with the Employer.

Notwithstanding the foregoing, the failure of a Participant and, if applicable, the Participant’s spouse, to consent to a distribution that is “immediately distributable” (within the meaning of Section 6.5(d)), shall be deemed to be an election to defer the commencement of payment of any benefit sufficient to satisfy this Section.

6.8 DISTRIBUTION FOR MINOR OR INCOMPETENT BENEFICIARY

In the event a distribution is to be made to a minor or incompetent Beneficiary, then the Administrator may direct that such distribution be paid to the legal guardian, or if none in the case of a minor Beneficiary, to a parent of such Beneficiary, or to the custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted by the laws of the state in which said Beneficiary resides. Such a payment to the legal guardian, custodian or parent of a minor or incompetent Beneficiary shall fully discharge the Trustee, Employer, and Plan from further liability on account thereof.

6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN

In the event that all, or any portion, of the distribution payable to a Participant or Beneficiary hereunder shall, at the later of the Participant’s attainment of age 62 or Normal Retirement Age, remain unpaid solely by reason of the inability of the Administrator, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort, to ascertain the whereabouts of such Participant or Beneficiary, the amount so distributable shall be treated as a Forfeiture pursuant to the Plan. Notwithstanding the foregoing, if the value of a Participant’s Vested benefit derived from Employer and Employee contributions does not exceed $5,000, then the amount distributable may be treated as a Forfeiture at the time it is determined that the whereabouts of the Participant or the Participant’s Beneficiary can not be ascertained. In the event a Participant or Beneficiary is located subsequent to the Forfeiture, such benefit shall be restored, first from Forfeitures, if any, and then from an additional Employer contribution, if necessary. Upon Plan termination, the portion of the distributable amount that is an “eligible rollover distribution” as defined in Plan Section 6.14(b)(1) may be paid directly to an individual retirement account described in Code Section 408(a) or an individual retirement annuity described in Code Section 408(b). However, regardless of the preceding, a benefit that is lost by reason of escheat under applicable state law is not treated as a Forfeiture for purposes of this Section nor as an impermissible forfeiture under the Code.

6.10 IN-SERVICE DISTRIBUTION

For Profit Sharing Plans and 401(k) Profit Sharing Plans, if elected in the Adoption Agreement, at such time as the conditions set forth in the Adoption Agreement have been satisfied, then the Administrator, at the election of a Participant who has not severed employment with the Employer, shall direct the distribution of up to the entire Vested amount then credited to the accounts as elected in the Adoption Agreement maintained on behalf of such Participant. In the event that the Administrator makes such a distribution, the Participant shall continue to be eligible to participate in the Plan on the same basis as any other Employee. Any distribution made pursuant to this Section shall be made in a manner consistent with Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder. Furthermore, if an in-service distribution is permitted from more than one account type, the Administrator may determine any ordering of a Participant’s in-service distribution from such accounts.

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DEFINED CONTRIBUTION PLAN


6.11 ADVANCE DISTRIBUTION FOR HARDSHIP

	(a) For Profit Sharing Plans and 401(k) Plans (except to the extent Section 12.9 applies), if elected in the Adoption Agreement, the Administrator, at the election of the Participant, shall direct the distribution to any Participant in any one Plan Year up to the lesser of 100% of the Vested interest of the Participant’s Combined Account valued as of the last Valuation Date or the amount necessary to satisfy the immediate and heavy financial need of the Participant. Any distribution made pursuant to this Section shall be deemed to be made as of the first day of the Plan Year or, if later, the Valuation Date immediately preceding the date of distribution, and the account from which the distribution is made shall be reduced accordingly. Withdrawal under this Section shall be authorized only if the distribution is for an immediate and heavy financial need. The Administrator will determine whether there is an immediate and heavy financial need based on the facts and circumstances. An immediate and heavy financial need includes, but is not limited to, a distribution for one of the following:

		(1) Medical expenses described in Code Section 213(d) incurred by the Participant, the Participant’s spouse, or any of the Participant’s dependents (as defined in Code Section 152) or necessary for these persons to obtain medical care as described in Code Section 213(d);

		(2) Costs directly related to the purchase (excluding mortgage payments) of a principal residence for the Participant;

		(3) Funeral expenses for a member of the Participant’s family;

		(4) Payment of tuition, related educational fees, and room and board expenses, for the next twelve (12) months of post-secondary education for the Participant, the Participant’s spouse, children, or dependents (as defined in Code Section 152); or

		(5) Payments necessary to prevent the eviction of the Participant from the Participant’s principal residence or foreclosure on the mortgage on that residence.

	(b) If elected in the Adoption Agreement, no distribution shall be made pursuant to this Section from the Participant’s Account until such Account has become fully Vested. Furthermore, if a hardship distribution is permitted from more than one account type, the Administrator may determine any ordering of a Participant’s hardship distribution from such accounts.

	(c) Any distribution made pursuant to this Section shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder.

6.12 SPECIAL RULE FOR CERTAIN PROFIT SHARING PLANS

	(a) The provisions of this Section apply to a Participant in a Profit Sharing Plan or 401(k) Profit Sharing Plan to the extent elected in the Adoption Agreement.

	(b) If an election is made to not offer life annuities as a form of distribution, then a Participant shall be prohibited from electing benefits in the form of a life annuity and the Joint and Survivor Annuity provisions of Section 6.5 shall not apply.

	(c) Notwithstanding anything in Sections 6.2 and 6.6 to the contrary, upon the death of a Participant, the automatic form of distribution will be a lump-sum rather than a Qualified Pre-Retirement Survivor Annuity. Furthermore, the Participant’s spouse will be the Beneficiary of the Participant’s entire Vested interest in the Plan unless an election is made to waive the spouse as Beneficiary. The other provisions in Section 6.2 shall be applied by treating the death benefit in this subsection as though it is a Qualified Pre-Retirement Survivor Annuity.

	(d) Except to the extent otherwise provided in this Section, the provisions of Sections 6.2, 6.5 and 6.6 regarding spousal consent shall be inoperative with respect to this Plan.

	(e) If a distribution is one to which Code Sections 401(a)(11) and 417 do not apply, such distribution may commence less than thirty (30) days after the notice required under Regulation 1.411(a)-11(c) is given, provided that:

		(1) the Plan Administrator clearly informs the Participant that the Participant has a right to a period of at least thirty (30) days after the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and

		(2) the Participant, after receiving the notice, affirmatively elects a distribution.

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DEFINED CONTRIBUTION PLAN


6.13 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION

All rights and benefits, including elections, provided to a Participant in this Plan shall be subject to the rights afforded to any “alternate payee” under a “qualified domestic relations order.” Furthermore, a distribution to an “alternate payee” shall be permitted if such distribution is authorized by a “qualified domestic relations order,” even if the affected Participant has not reached the “earliest retirement age” under the Plan. For the purposes of this Section, “alternate payee,” “qualified domestic relations order” and “earliest retirement age” shall have the meanings set forth under Code Section 414(p).

6.14 DIRECT ROLLOVERS

	(a) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a “distributee’s” election under this Section, a “distributee” may elect, at the time and in the manner prescribed by the Administrator, to have any portion of an “eligible rollover distribution” that is equal to at least $500 paid directly to an “eligible retirement plan” specified by the “distributee” in a “direct rollover.”

	(b) For purposes of this Section, the following definitions shall apply:

		(1) An “eligible rollover distribution” means any distribution described in Code Section 402(c)(4) and generally includes any distribution of all or any portion of the balance to the credit of the distributee, except that an “eligible rollover distribution” does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the “distributee” or the joint lives (or joint life expectancies) of the “distributee” and the “distributee’s” designated beneficiary, or for a specified period of ten (10) years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); the portion of any other distribution(s) that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); for distributions made after December 31, 1998, any hardship distribution described in Code Section 401(k)(2)(B)(i)(IV); and any other distribution reasonably expected to total less than $200 during a year.

		(2) An “eligible retirement plan” is an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), or a qualified plan described in Code Section 401(a), that accepts the “distributee’s” “eligible rollover distribution.” However, in the case of an “eligible rollover distribution” to the surviving spouse, an “eligible retirement plan” is an individual retirement account or individual retirement annuity.

		(3) A “distributee” includes an Employee or former Employee. In addition, the Employee’s or former Employee’s surviving spouse and the Employee’s or former Employee’s spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p), are distributees with regard to the interest of the spouse or former spouse.

		(4) A “direct rollover” is a payment by the Plan to the “eligible retirement plan” specified by the “distributee.”

6.15 TRANSFER OF ASSETS FROM A MONEY PURCHASE PLAN

	(a) This Section shall be effective as of the following date:

		(1) for Plans not entitled to extended reliance as described in Revenue Ruling 94-76, the first day of the first Plan Year beginning on or after December 12, 1994, or if later, 90 days after December 12, 1994; or

		(2) for Plans entitled to extended reliance as described in Revenue Ruling 94-76, as of the first day of the first Plan Year following the Plan Year in which the extended reliance period applicable to the Plan ends. However, in the event of a transfer of assets to the Plan from a money purchase plan that occurs after the date of the most recent determination letter, the effective date of the amendment shall be the date immediately preceding the date of such transfer of assets.

	(b) Notwithstanding any provision of this Plan to the contrary, to the extent that any optional form of benefit under this Plan permits a distribution prior to the Employee’s retirement, death, disability, or severance from employment, and prior to Plan termination, the optional form of benefit is not available with respect to benefits attributable to assets (including the post-transfer earnings thereon) and liabilities that are transferred, within the meaning of Code Section 414(l), to this Plan from a money purchase pension plan qualified under Code Section 401(a) (other than any portion of those assets and liabilities attributable to after-tax voluntary Employee contributions or to a direct or indirect rollover contribution).

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DEFINED CONTRIBUTION PLAN


6.16 ELECTIVE TRANSFERS OF BENEFITS TO OTHER PLANS

	(a) If a voluntary, fully-informed election is made by a Participant, then if the conditions set forth herein are satisfied, a Participant’s entire benefit may be transferred between qualified plans (other than any direct rollover described in Q&A-3 of Regulation 1.401(a)(31)-1). As an alternative to the transfer, the Participant may elect to retain the Participant’s “Section 411(d)(6) protected benefits” under the Plan (or, if the plan is terminating, to receive any optional form of benefit for which the Participant is eligible under the plan as required by Code Section 411(d)(6)). A transfer between qualified plans may only be made pursuant to this subsection if the following additional requirements are met:

		(i) The transfer occurs at a time at which the participant’s benefits are distributable. A Participant’s benefits are distributable on a particular date if, on that date, the Participant is eligible, under the terms of the Plan, to receive an immediate distribution of these benefits (e.g., in the form of an immediately commencing annuity) from that plan under provisions of the plan not inconsistent with Code Section 401(a);

		(ii) For transfers that occur on or after January 1, 2002, the transfer occurs at a time at which the Participant is not eligible to receive an immediate distribution of the participant’s entire nonforfeitable accrued benefit in a single-sum distribution that would consist entirely of an eligible rollover distribution within the meaning of Code Section 401(a)(31)(C);

		(iii) The participant is fully Vested in the transferred benefit in the transferee plan;

		(iv) In the case of a transfer from a defined contribution plan to a defined benefit plan, the defined benefit plan provides a minimum benefit, for each Participant whose benefits are transferred, equal to the benefit, expressed as an annuity payable at normal retirement age, that is derived solely on the basis of the amount transferred with respect to such Participant; and

		(v) The amount of the benefit transferred, together with the amount of any contemporaneous Code Section 401(a)(31) direct rollover to the transferee plan, equals the Participant’s entire nonforfeitable accrued benefit under the Plan.

	(b) If a voluntary, fully-informed election is made by a Participant, then if the conditions set forth herein are satisfied, a Participant’s entire benefit may be transferred between qualified defined contribution plans (other than any direct rollover described in Q&A-3 of Regulation 1.401(a)(31)-1). As an alternative to the transfer, the Participant may elect to retain the Participant’s “Section 411(d)(6) protected benefits” under the Plan (or, if the plan is terminating, to receive any optional form of benefit for which the Participant is eligible under the plan as required by Code Section 411(d)(6)). A transfer between qualified plans may only be made pursuant to this subsection if the following additional requirements are met:

		(i) To the extent the benefits are transferred from a money purchase pension plan, the transferee plan must be a money purchase pension plan. To the extent the benefits being transferred are part of a qualified cash or deferred arrangement under Code Section 401(k), the benefits must be transferred to a qualified cash or deferred arrangement under Code Section 401(k). Benefits transferred from a profit-sharing plan other than from a qualified cash or deferred arrangement, or from a stock bonus plan other than an employee stock ownership plan, may be transferred to any type of defined contribution plan; and

		(ii) The transfer must be made either in connection with an asset or stock acquisition, merger, or other similar transaction involving a change in employer of the employees of a trade or business (i.e., an acquisition or disposition within the meaning of Regulation 1.410(b)-2(f)) or in connection with the Participant’s change in employment status to an employment status with respect to which the Participant is not entitled to additional allocations under the Plan.

ARTICLE VII TRUSTEE AND CUSTODIAN

7.1 BASIC RESPONSIBILITIES OF THE TRUSTEE

	(a) The provisions of this Article, other than Section 7.6, shall not apply to this Plan if a separate trust agreement is being used as specified in the Adoption Agreement.

	(b) The Trustee is accountable to the Employer for the funds contributed to the Plan by the Employer, but the Trustee does not have any duty to see that the contributions received comply with the provisions of the Plan.

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	The Trustee is not obligated to collect any contributions from the Employer, nor is it under a duty to see that funds deposited with it are deposited in accordance with the provisions of the Plan.

	(c) The Trustee will credit and distribute the Trust Fund as directed by the Administrator. The Trustee is not obligated to inquire as to whether any payee or distributee is entitled to any payment or whether the distribution is proper or within the terms of the Plan, or whether the manner of making any payment or distribution is proper. The Trustee is accountable only to the Administrator for any payment or distribution made by it in good faith on the order or direction of the Administrator.

	(d) In the event that the Trustee shall be directed by a Participant (pursuant to the Participant Direction Procedures if the Plan permits Participant directed investments), the Employer, or an Investment Manager or other agent appointed by the Employer with respect to the investment of any or all Plan assets, the Trustee shall have no liability with respect to the investment of such assets, but shall be responsible only to execute such investment instructions as so directed.

		(1) The Trustee shall be entitled to rely fully on the written (or other form acceptable to the Administrator and the Trustee, including but not limited to, voice recorded) instructions of a Participant (pursuant to the Participant Direction Procedures), the Employer, or any Fiduciary or nonfiduciary agent of the Employer, in the discharge of such duties, and shall not be liable for any loss or other liability resulting from such direction (or lack of direction) of the investment of any part of the Plan assets.

		(2) The Trustee may delegate the duty of executing such instructions to any nonfiduciary agent, which may be an affiliate of the Trustee or any Plan representative.

		(3) The Trustee may refuse to comply with any direction from the Participant in the event the Trustee, in its sole and absolute discretion, deems such direction improper by virtue of applicable law. The Trustee shall not be responsible or liable for any loss or expense that may result from the Trustee’s refusal or failure to comply with any direction from the Participant.

		(4) Any costs and expenses related to compliance with the Participant’s directions shall be borne by the Participant’s Directed Account, unless paid by the Employer.

		(5) Notwithstanding anything herein above to the contrary, the Trustee shall not invest any portion of a Participant’s Directed Account in “collectibles” within the meaning of Code Section 408(m).

	(e) The Trustee will maintain records of receipts and disbursements and furnish to the Employer and/or Administrator for each Plan Year a written annual report pursuant to Section 7.9.

	(f) The Trustee may employ a bank or trust company pursuant to the terms of its usual and customary bank agency agreement, under which the duties of such bank or trust company shall be of a custodial, clerical and record-keeping nature.

	(g) The Trustee may employ and pay from the Trust Fund reasonable compensation to agents, attorneys, accountants and other persons to advise the Trustee as in its opinion may be necessary. The Trustee may delegate to any agent, attorney, accountant or other person selected by it any non-Trustee power or duty vested in it by the Plan, and the Trustee may act or refrain from acting on the advice or opinion of any such person.

7.2 INVESTMENT POWERS AND DUTIES OF DISCRETIONARY TRUSTEE

	(a) This Section applies if the Employer, in the Adoption Agreement or as otherwise agreed upon by the Employer and the Trustee, designates the Trustee to administer all or a portion of the trust as a discretionary Trustee. If so designated, then the Trustee has the discretion and authority to invest, manage, and control those Plan assets except, however, with respect to those assets which are subject to the investment direction of a Participant (if Participant directed investments are permitted), or an Investment Manager, the Administrator, or other agent appointed by the Employer. The exercise of any investment discretion hereunder shall be consistent with the “funding policy and method” determined by the Employer.

	(b) The Trustee shall, except as otherwise provided in this Plan, invest and reinvest the Trust Fund to keep the Trust Fund invested without distinction between principal and income and in such securities or property, real or personal, wherever situated, as the Trustee shall deem advisable, including, but not limited to, common or preferred stocks, open-end or closed-end mutual funds, bonds and other evidences of indebtedness or ownership, and real estate or any interest therein. The Trustee shall at all times in making investments of the Trust Fund consider, among other factors, the short and long-term financial needs of the Plan on the basis of information furnished by the Employer. In making such investments, the Trustee shall not be restricted to securities or other property of the character expressly

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	authorized by the applicable law for trust investments; however, the Trustee shall give due regard to any limitations imposed by the Code or the Act so that at all times this Plan may qualify as a qualified Plan and Trust.

	(c) The Trustee, in addition to all powers and authorities under common law, statutory authority, including the Act, and other provisions of this Plan, shall have the following powers and authorities to be exercised in the Trustee’s sole discretion:

		(1) To purchase, or subscribe for, any securities or other property and to retain the same. In conjunction with the purchase of securities, margin accounts may be opened and maintained;

		(2) To sell, exchange, convey, transfer, grant options to purchase, or otherwise dispose of any securities or other property held by the Trustee, by private contract or at public auction. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expediency, or propriety of any such sale or other disposition, with or without advertisement;

		(3) To vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other changes affecting corporate securities, and to delegate discretionary powers, and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities, or other property. However, the Trustee shall not vote proxies relating to securities for which it has not been assigned full investment management responsibilities. In those cases where another party has such investment authority or discretion, the Trustee will deliver all proxies to said party who will then have full responsibility for voting those proxies;

		(4) To cause any securities or other property to be registered in the Trustee’s own name, in the name of one or more of the Trustee’s nominees, in a clearing corporation, in a depository, or in book entry form or in bearer form, but the books and records of the Trustee shall at all times show that all such investments are part of the Trust Fund;

		(5) To invest in a common, collective, or pooled trust fund (the provisions of which are incorporated herein by reference) maintained by any Trustee (or any affiliate of such Trustee) hereunder pursuant to Revenue Ruling 81-100, all or such part of the Trust Fund as the Trustee may deem advisable, and the part of the Trust Fund so transferred shall be subject to all the terms and provisions of the common, collective, or pooled trust fund which contemplate the commingling for investment purposes of such trust assets with trust assets of other trusts. The name of the trust fund may be specified in an addendum to the Adoption Agreement. The Trustee may withdraw from such common, collective, or pooled trust fund all or such part of the Trust Fund as the Trustee may deem advisable;

		(6) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms and conditions, as the Trustee shall deem advisable; and for any sum so borrowed, to issue a promissory note as Trustee, and to secure the repayment thereof by pledging all, or any part, of the Trust Fund; and no person lending money to the Trustee shall be bound to see to the application of the money lent or to inquire into the validity, expediency, or propriety of any borrowing;

		(7) To accept and retain for such time as it may deem advisable any securities or other property received or acquired by it as Trustee hereunder, whether or not such securities or other property would normally be purchased as investments hereunder;

		(8) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

		(9) To settle, compromise, or submit to arbitration any claims, debts, or damages due or owing to or from the Plan, to commence or defend suits or legal or administrative proceedings, and to represent the Plan in all suits and legal and administrative proceedings;

		(10) To employ suitable agents and counsel and to pay their reasonable expenses and compensation, and such agents or counsel may or may not be an agent or counsel for the Employer;

		(11) To apply for and procure from the Insurer as an investment of the Trust Fund any annuity or other Contracts (on the life of any Participant, or in the case of a Profit Sharing Plan (including a 401(k) plan), on the life of any person in whom a Participant has an insurable interest, or on the joint lives of a Participant and any person in whom the Participant has an insurable interest) as the Administrator shall deem proper; to exercise, at any time or from time to time, whatever rights and privileges may be granted under such annuity,

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		or other Contracts; to collect, receive, and settle for the proceeds of all such annuity, or other Contracts as and when entitled to do so under the provisions thereof;

		(12) To invest funds of the Trust in time deposits or savings accounts bearing a reasonable rate of interest or in cash or cash balances without liability for interest thereon, including the specific authority to invest in any type of deposit of the Trustee (or of a financial institution related to the Trustee);

		(13) To invest in Treasury Bills and other forms of United States government obligations;

		(14) To sell, purchase and acquire put or call options if the options are traded on and purchased through a national securities exchange registered under the Securities Exchange Act of 1934, as amended, or, if the options are not traded on a national securities exchange, are guaranteed by a member firm of the New York Stock Exchange regardless of whether such options are covered;

		(15) To deposit monies in federally insured savings accounts or certificates of deposit in banks or savings and loan associations including the specific authority to make deposit into any savings accounts or certificates of deposit of the Trustee (or a financial institution related to the Trustee);

		(16) To pool all or any of the Trust Fund, from time to time, with assets belonging to any other qualified employee pension benefit trust created by the Employer or any Affiliated Employer, and to commingle such assets and make joint or common investments and carry joint accounts on behalf of this Plan and Trust and such other trust or trusts, allocating undivided shares or interests in such investments or accounts or any pooled assets of the two or more trusts in accordance with their respective interests; and

		(17) To do all such acts and exercise all such rights and privileges, although not specifically mentioned herein, as the Trustee may deem necessary to carry out the purposes of the Plan.

7.3 INVESTMENT POWERS AND DUTIES OF NONDISCRETIONARY TRUSTEE

	(a) This Section applies if the Employer, in the Adoption Agreement or as otherwise agreed upon by the Employer and the Trustee, designates the Trustee to administer all or a portion of the trust as a nondiscretionary Trustee. If so designated, then the Trustee shall have no discretionary authority to invest, manage, or control those Plan assets, but must act solely as a directed Trustee of those Plan assets. A nondiscretionary Trustee, as directed Trustee of the Plan funds it holds, is authorized and empowered, by way of limitation, with the powers, rights and duties set forth herein and in Section 7.14, each of which the nondiscretionary Trustee exercises solely as directed Trustee in accordance with the direction of the party which has the authority to manage and control the investment of the Plan assets. If no directions are provided to the Trustee, the Employer will provide necessary direction. Furthermore, the Employer and the nondiscretionary Trustee may, in writing, limit the powers of the nondiscretionary Trustee to any combination of powers listed within this Section.

	(b) The Trustee, in addition to all powers and authorities under common law, statutory authority, including the Act, and other provisions of this Plan, shall have the following powers and authorities:

		(1) To invest the assets, without distinction between principal and income, in securities or property, real or personal, wherever situated, including, but not limited to, common or preferred stocks, open-end or closed-end mutual funds, bonds and other evidences of indebtedness or ownership, and real estate or any interest therein. In making such investments, the Trustee shall not be restricted to securities or other property of the character expressly authorized by the applicable law for trust investments; however, the Trustee shall give due regard to any limitations imposed by the Code or the Act so that at all times this Plan may qualify as a qualified Plan and Trust.

		(2) To purchase, or subscribe for, any securities or other property and to retain the same. In conjunction with the purchase of securities, margin accounts may be opened and maintained;

		(3) To sell, exchange, convey, transfer, grant options to purchase, or otherwise dispose of any securities or other property held by the Trustee, by private contract or at public auction. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expediency, or propriety of any such sale or other disposition, with or without advertisement;

		(4) At the direction of the party which has the authority or discretion, to vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any payments incidental thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other changes affecting corporate securities, and to delegate powers, and pay any assessments or charges in

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		connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities, or other property;

		(5) To cause any securities or other property to be registered in the Trustee’s own name, in the name of one or more of the Trustee’s nominees, in a clearing corporation, in a depository, or in book entry form or in bearer form, but the books and records of the Trustee shall at all times show that all such investments are part of the Trust Fund;

		(6) To invest in a common, collective, or pooled trust fund (the provisions of which are incorporated herein by reference) maintained by any Trustee (or any affiliate of such Trustee) hereunder pursuant to Revenue Ruling 81-100, all or such part of the Trust Fund as the party which has the authority to manage and control the investment of the assets shall deem advisable, and the part of the Trust Fund so transferred shall be subject to all the terms and provisions of the common, collective, or pooled trust fund which contemplate the commingling for investment purposes of such trust assets with trust assets of other trusts. The name of the trust fund may be specified in an addendum to the Adoption Agreement;

		(7) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms and conditions, as the Trustee shall deem advisable; and for any sum so borrowed, to issue a promissory note as Trustee, and to secure the repayment thereof by pledging all, or any part, of the Trust Fund; and no person lending money to the Trustee shall be bound to see to the application of the money lent or to inquire into the validity, expediency, or propriety of any borrowing;

		(8) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

		(9) To settle, compromise, or submit to arbitration any claims, debts, or damages due or owing to or from the Plan, to commence or defend suits or legal or administrative proceedings, and to represent the Plan in all suits and legal and administrative proceedings;

		(10) To employ suitable agents and counsel and to pay their reasonable expenses and compensation, and such agent or counsel may or may not be an agent or counsel for the Employer;

		(11) To apply for and procure from the Insurer as an investment of the Trust Fund any annuity or other Contracts (on the life of any Participant, or in the case of a Profit Sharing Plan (including a 401(k) plan), on the life of any person in whom a Participant has an insurable interest, or on the joint lives of a Participant and any person in whom the Participant has an insurable interest) as the Administrator shall deem proper; to exercise, at the direction of the person with the authority to do so, whatever rights and privileges may be granted under such annuity or other Contracts; to collect, receive, and settle for the proceeds of all such annuity or other Contracts as and when entitled to do so under the provisions thereof;

		(12) To invest funds of the Trust in time deposits or savings accounts bearing a reasonable rate of interest or in cash or cash balances without liability for interest thereon, including the specific authority to invest in any type of deposit of the Trustee (or of a financial institution related to the Trustee);

		(13) To invest in Treasury Bills and other forms of United States government obligations;

		(14) To sell, purchase and acquire put or call options if the options are traded on and purchased through a national securities exchange registered under the Securities Exchange Act of 1934, as amended, or, if the options are not traded on a national securities exchange, are guaranteed by a member firm of the New York Stock Exchange regardless of whether such options are covered;

		(15) To deposit monies in federally insured savings accounts or certificates of deposit in banks or savings and loan associations including the specific authority to make deposit into any savings accounts or certificates of deposit of the Trustee (or a financial institution related to the Trustee); and

		(16) To pool all or any of the Trust Fund, from time to time, with assets belonging to any other qualified employee pension benefit trust created by the Employer or any Affiliated Employer, and to commingle such assets and make joint or common investments and carry joint accounts on behalf of this Plan and such other trust or trusts, allocating undivided shares or interests in such investments or accounts or any pooled assets of the two or more trusts in accordance with their respective interests.

7.4 POWERS AND DUTIES OF CUSTODIAN

If there is a discretionary Trustee, the Employer may appoint a custodian. A custodian has the same powers, rights and duties as a nondiscretionary Trustee. Any reference in the Plan to a Trustee also is a reference to a custodian unless the

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context of the Plan indicates otherwise. A limitation of the Trustee’s liability by Plan provision also acts as a limitation of the custodian’s liability. Any action taken by the custodian at the discretionary Trustee’s direction satisfies any provision in the Plan referring to the Trustee taking that action. The resignation or removal of the custodian shall be made in accordance with Section 7.11 as though the custodian were a Trustee.

7.5 LIFE INSURANCE

	(a) The Trustee, at the direction of the Administrator and pursuant to instructions from the individual designated in the Adoption Agreement for such purpose and subject to the conditions set forth in the Adoption Agreement, shall ratably apply for, own, and pay all premiums on Contracts on the lives of the Participants or, in the case of Profit Sharing Plan (including a 401(k) plan), on the life of any person in whom the Participant has an insurable interest or on the joint lives of a Participant and any person in whom the Participant has an insurable interest. Any initial or additional Contract purchased on behalf of a Participant shall have a face amount of not less than $1,000, the amount set forth in the Adoption Agreement, or the limitation of the Insurer, whichever is greater. If a life insurance Contract is to be purchased for a Participant or Former Participant, then the aggregate premium for ordinary life insurance for each Participant or Former Participant must be less than 50% of the aggregate contributions and Forfeitures allocated to the Participant’s or Former Participant’s Combined Account. For purposes of this limitation, ordinary life insurance Contracts are Contracts with both non-decreasing death benefits and non-increasing premiums. If term insurance or universal life insurance is purchased, then the aggregate premium must be 25% or less of the aggregate contributions and Forfeitures allocated to the Participant’s or Former Participant’s Combined Account. If both term insurance and ordinary life insurance are purchased, then the premium for term insurance plus one-half of the premium for ordinary life insurance may not in the aggregate exceed 25% of the aggregate Employer contributions and Forfeitures allocated to the Participant’s or Former Participant’s Combined Account. Notwithstanding the preceding, the limitations imposed herein with respect to the purchase of life insurance shall not apply, in the case of a Profit Sharing Plan (including a 401(k) plan), to the portion of the Participant’s Account that has accumulated for at least two (2) Plan Years or to the entire Participant’s Account if the Participant has been a Participant in the Plan for at least five (5) years. Amounts transferred to this Plan in accordance with Section 4.6(e)(ii), (iii) or (v) and a Participant’s or Former Participant’s Voluntary Contribution Account may be used to purchase Contracts without limitation.

	(b) The Trustee must distribute the Contracts to the Participant or Former Participant or convert the entire value of the Contracts at or before retirement into cash or provide for a periodic income so that no portion of such value may be used to continue life insurance protection beyond commencement of benefits. Furthermore, if a Contract is purchased on the joint lives of the Participant and another person and such other person predeceases the Participant, then the Contract may not be maintained under this Plan.

	(c) Notwithstanding anything herein above to the contrary, amounts credited to a Participant’s Qualified Voluntary Employee Contribution Account pursuant to Section 4.9, shall not be applied to the purchase of life insurance Contracts. Furthermore, no life insurance Contracts shall be required to be obtained on an individual’s life if, for any reason (other than the nonpayment of premiums) the Insurer will not issue a Contract on such individual’s life.

	(d) The Trustee will be the owner of any life insurance Contract purchased under the terms of this Plan. The Contract must provide that the proceeds will be payable to the Trustee; however, the Trustee shall be required to pay over all proceeds of the Contract to the Participant’s designated Beneficiary in accordance with the distribution provisions of Article VI. A Participant’s spouse will be the designated Beneficiary pursuant to Section 6.2, unless a qualified election has been made in accordance with Sections 6.5 and 6.6 of the Plan, if applicable. Under no circumstances shall the Trust retain any part of the proceeds that are in excess of the cash surrender value immediately prior to death. However, the Trustee shall not pay the proceeds in a method that would violate the requirements of the Retirement Equity Act of 1984, as stated in Article VI of the Plan, or Code Section 401(a)(9) and the Regulations thereunder. In the event of any conflict between the terms of this Plan and the terms of any insurance Contract purchased hereunder, the Plan provisions shall control.

7.6 LOANS TO PARTICIPANTS

	(a) If specified in the Adoption Agreement, the Trustee (or the Administrator if the Trustee is a nondiscretionary Trustee or if loans are treated as Participant directed investments pursuant to the Adoption Agreement) may, in the Trustee’s (or, if applicable, the Administrator’s) sole discretion, make loans to Participants or Beneficiaries under the following circumstances: (1) loans shall be made available to all Participants and Beneficiaries on a reasonably equivalent basis; (2) loans shall not be made available to Highly Compensated Employees in an amount greater than the amount made available to other Participants; (3) loans shall bear a reasonable rate of interest; (4) loans shall be adequately secured; and (5) loans shall provide for periodic repayment over a reasonable period of time. Furthermore, no Participant loan shall exceed the Participant’s Vested interest in the Plan.

	(b) Loans shall not be made to any Shareholder-Employee or Owner-Employee (including an Owner-Employee’s family members as defined in Code Section 267(c)(4)) unless an exemption for such loan is obtained

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	pursuant to Act Section 408 or such loan would otherwise not be a prohibited transaction pursuant to Code Section 4975 and Act Section 408.

	(c) An assignment or pledge of any portion of a Participant’s interest in the Plan and a loan, pledge, or assignment with respect to any insurance Contract purchased under the Plan, shall be treated as a loan under this Section.

	(d) If the Vested interest of a Participant is used to secure any loan made pursuant to this Section, then the written (or such other form as permitted by the IRS) consent of the Participant’s spouse shall be required in a manner consistent with Section 6.5(a), provided the spousal consent requirements of such Section apply to the Plan. Such consent must be obtained within the 90-day period prior to the date the loan is made. Any security interest held by the Plan by reason of an outstanding loan to the Participant or Former Participant shall be taken into account in determining the amount of the death benefit or Pre-Retirement Survivor Annuity. However, unless the loan program established pursuant to this Section provides otherwise, no spousal consent shall be required under this paragraph if the total interest subject to the security is not in excess of $5,000 (or, $3,500 effective for loans made prior to the later of the first day of the first Plan Year beginning after August 5, 1997, or the date specified in the Adoption Agreement).

	(e) The Administrator shall be authorized to establish a participant loan program to provide for loans under the Plan. The loan program shall be established in accordance with Department of Labor Regulation Section 2550.408(b)-1(d)(2) providing for loans by the Plan to parties-in-interest under said Plan, such as Participants or Beneficiaries. In order for the Administrator to implement such loan program, a separate written document forming a part of this Plan must be adopted, which document shall specifically include, but need not be limited to, the following:

		(1) the identity of the person or positions authorized to administer the Participant loan program;

		(2) a procedure for applying for loans;

		(3) the basis on which loans will be approved or denied;

		(4) limitations, if any, on the types and amounts of loans offered;

		(5) the procedure under the program for determining a reasonable rate of interest;

		(6) the types of collateral which may secure a Participant loan; and

		(7) the events constituting default and the steps that will be taken to preserve Plan assets in the event such default.

	(f) Notwithstanding anything in this Plan to the contrary, if a Participant or Beneficiary defaults on a loan made pursuant to this Section that is secured by the Participant’s interest in the Plan, then a Participant’s interest may be offset by the amount subject to the security to the extent there is a distributable event permitted by the Code or Regulations.

	(g) Notwithstanding anything in this Section to the contrary, if this is an amendment and restatement of an existing Plan, any loans made prior to the date this amendment and restatement is adopted shall be subject to the terms of the Plan in effect at the time such loan was made.

7.7 MAJORITY ACTIONS

Except where there has been an allocation and delegation of powers, if there shall be more than one Trustee, they shall act by a majority of their number, but may authorize one or more of them to sign papers on their behalf.

7.8 TRUSTEE’S COMPENSATION AND EXPENSES AND TAXES

The Trustee shall be paid such reasonable compensation as set forth in the Trustee’s fee schedule (if the Trustee has such a schedule) or as agreed upon in writing by the Employer and the Trustee. However, an individual serving as Trustee who already receives full-time compensation from the Employer shall not receive compensation from this Plan. In addition, the Trustee shall be reimbursed for any reasonable expenses, including reasonable counsel fees incurred by it as Trustee. Such compensation and expenses shall be paid from the Trust Fund unless paid or advanced by the Employer. All taxes of any kind whatsoever that may be levied or assessed under existing or future laws upon, or in respect of, the Trust Fund or the income thereof, shall be paid from the Trust Fund.

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7.9 ANNUAL REPORT OF THE TRUSTEE

	(a) Within a reasonable period of time after the later of the Anniversary Date or receipt of the Employer’s contribution for each Plan Year, the Trustee, or its agent, shall furnish to the Employer and Administrator a written statement of account with respect to the Plan Year for which such contribution was made setting forth:

		(1) the net income, or loss, of the Trust Fund;

		(2) the gains, or losses, realized by the Trust Fund upon sales or other disposition of the assets;

		(3) the increase, or decrease, in the value of the Trust Fund;

		(4) all payments and distributions made from the Trust Fund; and

		(5) such further information as the Trustee and/or Administrator deems appropriate.

	(b) The Employer, promptly upon its receipt of each such statement of account, shall acknowledge receipt thereof in writing and advise the Trustee and/or Administrator of its approval or disapproval thereof. Failure by the Employer to disapprove any such statement of account within thirty (30) days after its receipt thereof shall be deemed an approval thereof. The approval by the Employer of any statement of account shall be binding on the Employer and the Trustee as to all matters contained in the statement to the same extent as if the account of the Trustee had been settled by judgment or decree in an action for a judicial settlement of its account in a court of competent jurisdiction in which the Trustee, the Employer and all persons having or claiming an interest in the Plan were parties. However, nothing contained in this Section shall deprive the Trustee of its right to have its accounts judicially settled if the Trustee so desires.

7.10 AUDIT

	(a) If an audit of the Plan’s records shall be required by the Act and the regulations thereunder for any Plan Year, the Administrator shall engage on behalf of all Participants an independent qualified public accountant for that purpose. Such accountant shall, after an audit of the books and records of the Plan in accordance with generally accepted auditing standards, within a reasonable period after the close of the Plan Year, furnish to the Administrator and the Trustee a report of the audit setting forth the accountant’s opinion as to whether any statements, schedules or lists, that are required by Act Section 103 or the Secretary of Labor to be filed with the Plan’s annual report, are presented fairly in conformity with generally accepted accounting principles applied consistently.

	(b) All auditing and accounting fees shall be an expense of and may, at the election of the Employer, be paid from the Trust Fund.

	(c) If some or all of the information necessary to enable the Administrator to comply with Act Section 103 is maintained by a bank, insurance company, or similar institution, regulated, supervised, and subject to periodic examination by a state or federal agency, then it shall transmit and certify the accuracy of that information to the Administrator as provided in Act Section 103(b) within one hundred twenty (120) days after the end of the Plan Year or such other date as may be prescribed under regulations of the Secretary of Labor.

7.11 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE

	(a) Unless otherwise agreed to by both the Trustee and the Employer, a Trustee may resign at any time by delivering to the Employer, at least thirty (30) days before its effective date, a written notice of resignation.

	(b) Unless otherwise agreed to by both the Trustee and the Employer, the Employer may remove a Trustee at any time by delivering to the Trustee, at least thirty (30) days before its effective date, a written notice of such Trustee’s removal.

	(c) Upon the death, resignation, incapacity, or removal of any Trustee, a successor may be appointed by the Employer; and such successor, upon accepting such appointment in writing and delivering same to the Employer, shall, without further act, become vested with all the powers and responsibilities of the predecessor as if such successor had been originally named as a Trustee herein. Until such a successor is appointed, any remaining Trustee or Trustees shall have full authority to act under the terms of the Plan.

	(d) The Employer may designate one or more successors prior to the death, resignation, incapacity, or removal of a Trustee. In the event a successor is so designated by the Employer and accepts such designation, the successor shall, without further act, become vested with all the powers and responsibilities of the predecessor as if such successor had been originally named as Trustee herein immediately upon the death, resignation, incapacity, or removal of the predecessor.

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	(e) Whenever any Trustee hereunder ceases to serve as such, the Trustee shall furnish to the Employer and Administrator a written statement of account with respect to the portion of the Plan Year during which the individual or entity served as Trustee. This statement shall be either (i) included as part of the annual statement of account for the Plan Year required under Section 7.9 or (ii) set forth in a special statement. Any such special statement of account should be rendered to the Employer no later than the due date of the annual statement of account for the Plan Year. The procedures set forth in Section 7.9 for the approval by the Employer of annual statements of account shall apply to any special statement of account rendered hereunder and approval by the Employer of any such special statement in the manner provided in Section 7.9 shall have the same effect upon the statement as the Employer’s approval of an annual statement of account. No successor to the Trustee shall have any duty or responsibility to investigate the acts or transactions of any predecessor who has rendered all statements of account required by Section 7.9 and this subparagraph.

7.12 TRANSFER OF INTEREST

Notwithstanding any other provision contained in this Plan, the Trustee at the direction of the Administrator shall transfer the interest, if any, of a Participant to another trust forming part of a pension, profit sharing, or stock bonus plan that meets the requirements of Code Section 401(a), provided that the trust to which such transfers are made permits the transfer to be made.

7.13 TRUSTEE INDEMNIFICATION

The Employer agrees to indemnify and hold harmless the Trustee against any and all claims, losses, damages, expenses and liabilities the Trustee may incur in the exercise and performance of the Trustee’s powers and duties hereunder, unless the same are determined to be due to gross negligence or willful misconduct.

7.14 EMPLOYER SECURITIES AND REAL PROPERTY

The Trustee shall be empowered to acquire and hold “qualifying Employer securities” and “qualifying Employer real property,” as those terms are defined in the Act. However, no more than one hundred percent (100%), in the case of a Profit Sharing Plan or 401(k) Plan, or ten percent (10%), in the case of a Money Purchase Plan, of the fair market value of all the assets in the Trust Fund may be invested in “qualifying Employer securities” and “qualifying Employer real property.”

Notwithstanding the preceding, for Plan Years beginning after December 31, 1998, if the Plan does not permit Participants to direct the investment of their Participants’ Elective Deferral Accounts, then the Trustee shall only be permitted to acquire or hold “qualifying Employer securities” and “qualifying Employer real property” to the extent permitted under Act Section 407.

ARTICLE VIII AMENDMENT, TERMINATION AND MERGERS

8.1 AMENDMENT

	(a) The Employer shall have the right at any time to amend this Plan subject to the limitations of this Section. However, any amendment that affects the rights, duties or responsibilities of the Trustee or Administrator may only be made with the Trustee’s or Administrator’s written consent. Any such amendment shall become effective as provided therein upon its execution. The Trustee shall not be required to execute any such amendment unless the amendment affects the duties of the Trustee hereunder.

	(b) The Employer may (1) change the choice of options in the Adoption Agreement, (2) add any addendum to the Adoption Agreement that is specifically permitted pursuant to the terms of the Plan; (3) add overriding language to the Adoption Agreement when such language is necessary to satisfy Code Sections 415 or 416 because of the required aggregation of multiple plans, and (4) add certain model amendments published by the Internal Revenue Service which specifically provide that their adoption will not cause the Plan to be treated as an individually designed plan. An Employer that amends the Plan for any other reason, including a waiver of the minimum funding requirement under Code Section 412(d), will no longer participate in this Prototype Plan and this Plan will be considered to be an individually designed plan. Notwithstanding the preceding, the attachment to the Adoption Agreement of any addendum specifically authorized by the Plan or a list of any “Section 411(d)(6) protected benefits” which must be preserved shall not be considered an amendment to the Plan.

	(c) The Employer expressly delegates authority to the sponsor of this Prototype Plan, the right to amend each Employer’s Plan by submitting a copy of the amendment to each Employer who has adopted this Prototype Plan, after first having received a ruling or favorable determination from the Internal Revenue Service that the Prototype Plan as amended qualifies under Code Section 401(a) and the Act (unless a ruling or determination is not required by the IRS). For purposes of this Section, the mass submitter shall be recognized as the agent of the sponsor. If

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	the sponsor does not adopt any amendment made by the mass submitter, it will no longer be identical to, or a minor modifier of, the mass submitter plan.

	(d) No amendment to the Plan shall be effective if it authorizes or permits any part of the Trust Fund (other than such part as is required to pay taxes and administration expenses) to be used for or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries or estates; or causes any reduction in the amount credited to the account of any Participant; or causes or permits any portion of the Trust Fund to revert to or become property of the Employer.

	(e) Except as permitted by Regulations (including Regulation 1.411(d)-4) or other IRS guidance, no Plan amendment or transaction having the effect of a Plan amendment (such as a merger, plan transfer or similar transaction) shall be effective if it eliminates or reduces any “Section 411(d)(6) protected benefit” or adds or modifies conditions relating to “Section 411(d)(6) protected benefits” which results in a further restriction on such benefits unless such “Section 411(d)(6) protected benefits” are preserved with respect to benefits accrued as of the later of the adoption date or effective date of the amendment. “Section 411(d)(6) protected benefits” are benefits described in Code Section 411(d)(6)(A), early retirement benefits and retirement-type subsidies, and optional forms of benefit. A Plan amendment that eliminates or restricts the ability of a Participant to receive payment of the Participant’s interest in the Plan under a particular optional form of benefit will be permissible if the amendment satisfies the conditions in (1) and (2) below:

		(1) The amendment provides a single-sum distribution form that is otherwise identical to the optional form of benefit eliminated or restricted. For purposes of this condition (1), a single-sum distribution form is otherwise identical only if it is identical in all respects to the eliminated or restricted optional form of benefit (or would be identical except that it provides greater rights to the Participant) except with respect to the timing of payments after commencement.

		(2) The amendment is not effective unless the amendment provides that the amendment shall not apply to any distribution with an Annuity Starting Date earlier than the earlier of: (i) the ninetieth (90th) day after the date the Participant receiving the distribution has been furnished a summary that reflects the amendment and that satisfies the Act requirements at 29 CFR 2520.104b-3 (relating to a summary of material modifications) or (ii) the first day of the second Plan Year following the Plan Year in which the amendment is adopted.

8.2 TERMINATION

	(a) The Employer shall have the right at any time to terminate the Plan by delivering to the Trustee and Administrator written notice of such termination. Upon any full or partial termination, all amounts credited to the affected Participants’ Combined Accounts shall become 100% Vested and shall not thereafter be subject to forfeiture, and all unallocated amounts, including Forfeitures, shall be allocated to the accounts of all Participants in accordance with the provisions hereof.

	(b) Upon the full termination of the Plan, the Employer shall direct the distribution of the assets to Participants in a manner that is consistent with and satisfies the provisions of Section 6.5. Distributions to a Participant shall be made in cash (or in property if permitted in the Adoption Agreement) or through the purchase of irrevocable nontransferable deferred commitments from the Insurer. Except as permitted by Regulations, the termination of the Plan shall not result in the reduction of “Section 411(d)(6) protected benefits” as described in Section 8.1(e).

8.3 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS

This Plan may be merged or consolidated with, or its assets and/or liabilities may be transferred to any other plan only if the benefits which would be received by a Participant of this Plan, in the event of a termination of the plan immediately after such transfer, merger or consolidation, are at least equal to the benefits the Participant would have received if the Plan had terminated immediately before the transfer, merger or consolidation and such transfer, merger or consolidation does not otherwise result in the elimination or reduction of any “Section 411(d)(6) protected benefits” as described in Section 8.1(e).

ARTICLE IX TOP HEAVY PROVISIONS

9.1 TOP HEAVY PLAN REQUIREMENTS

Notwithstanding anything in this Plan to the contrary, for any Top Heavy Plan Year, the Plan shall provide the special vesting requirements of Code Section 416(b) pursuant to Section 6.4 of the Plan and the special minimum allocation requirements of Code Section 416(c) pursuant to Section 4.3(f) of the Plan. Except as otherwise provided in the Plan, the minimum allocation shall be an Employer Non-Elective Contribution and, if no vesting schedule has been selected in the Adoption Agreement, shall be subject to the 6 Year Graded vesting schedule described in the Adoption Agreement.

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9.2 DETERMINATION OF TOP HEAVY STATUS

	(a) This Plan shall be a Top Heavy Plan for any plan year beginning after December 31, 1983, if any of the following conditions exists:

		(1) if the “top heavy ratio” for this Plan exceeds sixty percent (60%) and this Plan is not part of any “required aggregation group” or “permissive aggregation group”;

		(2) if this Plan is a part of a “required aggregation group” but not part of a “permissive aggregation group” and the “top heavy ratio” for the group of plans exceeds sixty percent (60%); or

		(3) if this Plan is a part of a “required aggregation group” and part of a “permissive aggregation group” and the “top heavy ratio” for the “permissive aggregation group” exceeds sixty percent (60%).

	(b) “Top heavy ratio” means, with respect to a “determination date”:

		(1) If the Employer maintains one or more defined contribution plans (including any simplified employee pension plan (as defined in Code Section 408(k))) and the Employer has not maintained any defined benefit plan which during the 5-year period ending on the “determination date” has or has had accrued benefits, the top heavy ratio for this plan alone or for the “required aggregation group” or “permissive aggregation group” as appropriate is a fraction, the numerator of which is the sum of the account balances of all Key Employees as of the “determination date” (including any part of any account balance distributed in the 5-year period ending on the “determination date”), and the denominator of which is the sum of all account balances (including any part of any account balance distributed in the 5-year period ending on the “determination date”), both computed in accordance with Code Section 416 and the Regulations thereunder. Both the numerator and denominator of the top heavy ratio are increased to reflect any contribution not actually made as of the “determination date,” but which is required to be taken into account on that date under Code Section 416 and the Regulations thereunder.

		(2) If the Employer maintains one or more defined contribution plans (including any simplified employee pension plan) and the Employer maintains or has maintained one or more defined benefit plans which during the 5-year period ending on the “determination date” has or has had any accrued benefits, the top heavy ratio for any “required aggregation group” or “permissive aggregation group” as appropriate is a fraction, the numerator of which is the sum of account balances under the aggregated defined contribution plan or plans for all Key Employees, determined in accordance with (1) above, and the present value of accrued benefits under the aggregated defined benefit plan or plans for all Key Employees as of the “determination date,” and the denominator of which is the sum of the account balances under the aggregated defined contribution plan or plans for all participants, determined in accordance with (1) above, and the “present value” of accrued benefits under the defined benefit plan or plans for all participants as of the “determination date,” all determined in accordance with Code Section 416 and the Regulations thereunder. The accrued benefits under a defined benefit plan in both the numerator and denominator of the top heavy ratio are increased for any distribution of an accrued benefit made in the five-year period ending on the determination date.

		(3) For purposes of (1) and (2) above, the value of account balances and the present value of accrued benefits will be determined as of the most recent “valuation date” that falls within or ends with the 12-month period ending on the “determination date,” except as provided in Code Section 416 and the Regulations thereunder for the first and second plan years of a defined benefit plan. The account balances and accrued benefits of a participant (i) who is not a Key Employee but who was a Key Employee in a prior year, or (ii) who has not been credited with at least one Hour of Service with any Employer maintaining the plan at any time during the 5-year period ending on the “determination date” will be disregarded. The calculation of the top heavy ratio, and the extent to which distributions, rollovers, and transfers are taken into account will be made in accordance with Code Section 416 and the Regulations thereunder. Deductible Employee contributions will not be taken into account for purposes of computing the top heavy ratio. When aggregating plans the value of account balances and accrued benefits will be calculated with reference to the “determination dates” that fall within the same calendar year.

		The accrued benefit of a participant other than a Key Employee shall be determined under (i) the method, if any, that uniformly applies for accrual purposes under all defined benefit plans maintained by the employer, or (ii) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of Code Section 411(b)(1)(C).

	(c) “Determination date” means, for any Plan Year subsequent to the first Plan Year, the last day of the preceding Plan Year. For the first Plan Year of the Plan, “determination date” means the last day of that Plan Year.

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	(d) “Permissive aggregation group” means the “required aggregation group” of plans plus any other plan or plans of the Employer which, when considered as a group with the required aggregation group, would continue to satisfy the requirements of Code Sections 401(a)(4) and 410.

	(e) “Present value” means the present value based only on the interest and mortality rates specified in the Adoption Agreement.

	(f) “Required aggregation group” means: (1) each qualified plan of the Employer in which at least one Key Employee participates or participated at any time during the determination period (regardless of whether the plan has terminated), and (2) any other qualified plan of the Employer which enables a plan described in (l) to meet the requirements of Code Sections 401(a)(4) or 410.

	(g) “Valuation date” means the date elected by the Employer in the Adoption Agreement as of which account balances or accrued benefits are valued for purposes of calculating the “top heavy ratio.”

ARTICLE X MISCELLANEOUS

10.1 EMPLOYER ADOPTIONS

	(a) Any organization may become the Employer hereunder by executing the Adoption Agreement in a form satisfactory to the Trustee, and it shall provide such additional information as the Trustee may require. The consent of the Trustee to act as such shall be signified by its execution of the Adoption Agreement or a separate agreement (including, if elected in the Adoption Agreement, a separate trust agreement).

	(b) Except as otherwise provided in this Plan, the affiliation of the Employer and the participation of its Participants shall be separate and apart from that of any other employer and its participants hereunder.

10.2 PARTICIPANT’S RIGHTS

This Plan shall not be deemed to constitute a contract between the Employer and any Participant or to be a consideration or an inducement for the employment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon the Employee as a Participant of this Plan.

10.3 ALIENATION

	(a) Subject to the exceptions provided below and as otherwise permitted by the Code and the Act, no benefit which shall be payable to any person (including a Participant or the Participant’s Beneficiary) shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; and no such benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements, or torts of any such person, nor shall it be subject to attachment or legal process for or against such person, and the same shall not be recognized except to such extent as may be required by law.

	(b) Subsection (a) shall not apply to the extent a Participant or Beneficiary is indebted to the Plan by reason of a loan made pursuant to Section 7.6. At the time a distribution is to be made to or for a Participant’s or Beneficiary’s benefit, such portion of the amount to be distributed as shall equal such indebtedness shall be paid to the Plan, to apply against or discharge such indebtedness. Prior to making a payment, however, the Participant or Beneficiary must be given notice by the Administrator that such indebtedness is to be so paid in whole or part from the Participant’s interest in the Plan. If the Participant or Beneficiary does not agree that the indebtedness is a valid claim against the Participant’s interest in the Plan, the Participant or Beneficiary shall be entitled to a review of the validity of the claim in accordance with procedures provided in Sections 2.10 and 2.11.

	(c) Subsection (a) shall not apply to a “qualified domestic relations order” defined in Code Section 414(p), and those other domestic relations orders permitted to be so treated by the Administrator under the provisions of the Retirement Equity Act of 1984. The Administrator shall establish a written procedure to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders. Further, to the extent provided under a “qualified domestic relations order,” a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.

	(d) Notwithstanding any provision of this Section to the contrary, an offset to a Participant’s accrued benefit against an amount that the Participant is ordered or required to pay the Plan with respect to a judgment, order,

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	or decree issued, or a settlement entered into, on or after August 5, 1997, shall be permitted in accordance with Code Sections 401(a)(13)(C) and (D).

10.4 CONSTRUCTION OF PLAN

This Plan and Trust shall be construed and enforced according to the Code, the Act and the laws of the state or commonwealth in which the Employer’s (or if there is a corporate Trustee, the Trustee’s) principal office is located (unless otherwise designated in the Adoption Agreement), other than its laws respecting choice of law, to the extent not pre-empted by the Act.

10.5 GENDER AND NUMBER

Wherever any words are used herein in the masculine, feminine or neuter gender, they shall be construed as though they were also used in another gender in all cases where they would so apply, and whenever any words are used herein in the singular or plural form, they shall be construed as though they were also used in the other form in all cases where they would so apply.

10.6 LEGAL ACTION

In the event any claim, suit, or proceeding is brought regarding the Trust and/or Plan established hereunder to which the Trustee, the Employer or the Administrator may be a party, and such claim, suit, or proceeding is resolved in favor of the Trustee, the Employer or the Administrator, they shall be entitled to be reimbursed from the Trust Fund for any and all costs, attorney’s fees, and other expenses pertaining thereto incurred by them for which they shall have become liable.

10.7 PROHIBITION AGAINST DIVERSION OF FUNDS

	(a) Except as provided below and otherwise specifically permitted by law, it shall be impossible by operation of the Plan or of the Trust, by termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by any other means, for any part of the corpus or income of any Trust Fund maintained pursuant to the Plan or any funds contributed thereto to be used for, or diverted to, purposes other than the exclusive benefit of Participants, Former Participants, or their Beneficiaries.

	(b) In the event the Employer shall make a contribution under a mistake of fact pursuant to Act Section 403(c)(2)(A), the Employer may demand repayment of such contribution at any time within one (1) year following the time of payment and the Trustee shall return such amount to the Employer within the one (1) year period. Earnings of the Plan attributable to the contributions may not be returned to the Employer but any losses attributable thereto must reduce the amount so returned.

	(c) Except as specifically stated in the Plan, any contribution made by the Employer to the Plan (if the Employer is not tax-exempt) is conditioned upon the deductibility of the contribution by the Employer under the Code and, to the extent any such deduction is disallowed, the Employer may, within one (1) year following a final determination of the disallowance, whether by agreement with the Internal Revenue Service or by final decision of a court of competent jurisdiction, demand repayment of such disallowed contribution and the Trustee shall return such contribution within one (1) year following the disallowance. Earnings of the Plan attributable to the contribution may not be returned to the Employer, but any losses attributable thereto must reduce the amount so returned.

10.8 EMPLOYER’S AND TRUSTEE’S PROTECTIVE CLAUSE

The Employer, Administrator and Trustee, and their successors, shall not be responsible for the validity of any Contract issued hereunder or for the failure on the part of the Insurer to make payments provided by any such Contract, or for the action of any person which may delay payment or render a Contract null and void or unenforceable in whole or in part.

10.9 INSURER’S PROTECTIVE CLAUSE

Except as otherwise agreed upon in writing between the Employer and the Insurer, an Insurer which issues any Contracts hereunder shall not have any responsibility for the validity of this Plan or for the tax or legal aspects of this Plan. The Insurer shall be protected and held harmless in acting in accordance with any written direction of the Administrator or Trustee, and shall have no duty to see to the application of any funds paid to the Trustee, nor be required to question any actions directed by the Administrator or Trustee. Regardless of any provision of this Plan, the Insurer shall not be required to take or permit any action or allow any benefit or privilege contrary to the terms of any Contract which it issues hereunder, or the rules of the Insurer.

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10.10 RECEIPT AND RELEASE FOR PAYMENTS

Any payment to any Participant, the Participant’s legal representative, Beneficiary, or to any guardian or committee appointed for such Participant or Beneficiary in accordance with the provisions of this Plan, shall, to the extent thereof, be in full satisfaction of all claims hereunder against the Trustee and the Employer.

10.11 ACTION BY THE EMPLOYER

Whenever the Employer under the terms of the Plan is permitted or required to do or perform any act or matter or thing, it shall be done and performed by a person duly authorized by its legally constituted authority.

10.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY

The “named Fiduciaries” of this Plan are (1) the Employer, (2) the Administrator, (3) the Trustee (if the Trustee has discretionary authority as elected in the Adoption Agreement or as otherwise agreed upon by the Employer and the Trustee), and (4) any Investment Manager appointed hereunder. The named Fiduciaries shall have only those specific powers, duties, responsibilities, and obligations as are specifically given them under the Plan including, but not limited to, any agreement allocating or delegating their responsibilities, the terms of which are incorporated herein by reference. In general, the Employer shall have the sole responsibility for making the contributions provided for under the Plan; and shall have the sole authority to appoint and remove the Trustee and the Administrator; to formulate the Plan’s “funding policy and method”; and to amend the elective provisions of the Adoption Agreement or terminate, in whole or in part, the Plan. The Administrator shall have the sole responsibility for the administration of the Plan, which responsibility is specifically described in the Plan. If the Trustee has discretionary authority, it shall have the sole responsibility of management of the assets held under the Trust, except those assets, the management of which has been assigned to an Investment Manager or Administrator, who shall be solely responsible for the management of the assets assigned to it, all as specifically provided in the Plan. Each named Fiduciary warrants that any directions given, information furnished, or action taken by it shall be in accordance with the provisions of the Plan, authorizing or providing for such direction, information or action. Furthermore, each named Fiduciary may rely upon any such direction, information or action of another named Fiduciary as being proper under the Plan, and is not required under the Plan to inquire into the propriety of any such direction, information or action. It is intended under the Plan that each named Fiduciary shall be responsible for the proper exercise of its own powers, duties, responsibilities and obligations under the Plan. No named Fiduciary shall guarantee the Trust Fund in any manner against investment loss or depreciation in asset value. Any person or group may serve in more than one Fiduciary capacity.

10.13 HEADINGS

The headings and subheadings of this Plan have been inserted for convenience of reference and are to be ignored in any construction of the provisions hereof.

10.14 APPROVAL BY INTERNAL REVENUE SERVICE

Notwithstanding anything herein to the contrary, if, pursuant to a timely application filed by or on behalf of the Plan, the Commissioner of the Internal Revenue Service or the Commissioner’s delegate should determine that the Plan does not initially qualify as a tax-exempt plan under Code Sections 401 and 501, and such determination is not contested, or if contested, is finally upheld, then if the Plan is a new plan, it shall be void ab initio and all amounts contributed to the Plan, by the Employer, less expenses paid, shall be returned within one (1) year and the Plan shall terminate, and the Trustee shall be discharged from all further obligations. If the disqualification relates to a Plan amendment, then the Plan shall operate as if it had not been amended. If the Employer’s Plan fails to attain or retain qualification, such Plan will no longer participate in this prototype plan and will be considered an individually designed plan.

10.15 UNIFORMITY

All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner.

10.16 PAYMENT OF BENEFITS

Except as otherwise provided in the Plan, benefits under this Plan shall be paid, subject to Sections 6.10, 6.11 and 12.9, only upon death, Total and Permanent Disability, normal or early retirement, termination of employment, or termination of the Plan.

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ARTICLE XI PARTICIPATING EMPLOYERS

11.1 ELECTION TO BECOME A PARTICIPATING EMPLOYER

Notwithstanding anything herein to the contrary, with the consent of the Employer and Trustee, any Affiliated Employer may adopt the Employer’s Plan and all of the provisions hereof, and participate herein and be known as a Participating Employer, by a properly executed document evidencing said intent and will of such Participating Employer. Regardless of the preceding, an entity that ceases to be an Affiliated Employer may continue to be a Participating Employer through the end of the transition period for certain dispositions set forth in Code Section 410(b)(6)(C). In the event a Participating Employer is not an Affiliated Employer and the transition period in the preceding sentence, if applicable, has expired, then this Plan will be considered an individually designed plan.

11.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS

	(a) Each Participating Employer shall be required to select the same Adoption Agreement provisions as those selected by the Employer other than the Plan Year, the Fiscal Year, and such other items that must, by necessity, vary among employers.

	(b) The Trustee may, but shall not be required to, commingle, hold and invest as one Trust Fund all contributions made by Participating Employers, as well as all increments thereof. However, the assets of the Plan shall, on an ongoing basis, be available to pay benefits to all Participants and Beneficiaries under the Plan without regard to the Employer or Participating Employer who contributed such assets.

	(c) Unless the Employer otherwise directs, any expenses of the Plan which are to be paid by the Employer or borne by the Trust Fund shall be paid by each Participating Employer in the same proportion that the total amount standing to the credit of all Participants employed by such Employer bears to the total standing to the credit of all Participants.

11.3 DESIGNATION OF AGENT

Each Participating Employer shall be deemed to be a part of this Plan; provided, however, that with respect to all of its relations with the Trustee and Administrator for purposes of this Plan, each Participating Employer shall be deemed to have designated irrevocably the Employer as its agent. Unless the context of the Plan clearly indicates otherwise, the word “Employer” shall be deemed to include each Participating Employer as related to its adoption of the Plan.

11.4 EMPLOYEE TRANSFERS

In the event an Employee is transferred between Participating Employers, accumulated service and eligibility shall be carried with the Employee involved. No such transfer shall effect a termination of employment hereunder, and the Participating Employer to which the Employee is transferred shall thereupon become obligated hereunder with respect to such Employee in the same manner as was the Participating Employer from whom the Employee was transferred.

11.5 PARTICIPATING EMPLOYER’S CONTRIBUTION AND FORFEITURES

Any contribution or Forfeiture subject to allocation during each Plan Year shall be allocated among all Participants of all Participating Employers in accordance with the provisions of this Plan. However, if a Participating Employer is not an Affiliated Employer (due to the transition rule for certain dispositions set forth in Code Section 410(b)(6)(C)) then any contributions made by such Participating Employer will only be allocated among the Participants eligible to share of the Participating Employer. On the basis of the information furnished by the Administrator, the Trustee may keep separate books and records concerning the affairs of each Participating Employer hereunder and as to the accounts and credits of the Employees of each Participating Employer. The Trustee may, but need not, register Contracts so as to evidence that a particular Participating Employer is the interested Employer hereunder, but in the event of an Employee transfer from one Participating Employer to another, the employing Participating Employer shall immediately notify the Trustee thereof.

11.6 AMENDMENT

Amendment of this Plan by the Employer at any time when there shall be a Participating Employer that is an Affiliated Employer hereunder shall only be by the written action of each and every Participating Employer and with the consent of the Trustee where such consent is necessary in accordance with the terms of this Plan.

11.7 DISCONTINUANCE OF PARTICIPATION

Except in the case of a standardized Plan, any Participating Employer that is an Affiliated Employer shall be permitted to discontinue or revoke its participation in the Plan at any time. At the time of any such discontinuance or revocation,

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satisfactory evidence thereof and of any applicable conditions imposed shall be delivered to the Trustee. The Trustee shall thereafter transfer, deliver and assign Contracts and other Trust Fund assets allocable to the Participants of such Participating Employer to such new trustee or custodian as shall have been designated by such Participating Employer, in the event that it has established a separate qualified retirement plan for its employees provided, however, that no such transfer shall be made if the result is the elimination or reduction of any “Section 411(d)(6) protected benefits” as described in Section 8.1(e). If no successor is designated, the Trustee shall retain such assets for the Employees of said Participating Employer pursuant to the provisions of Article VII hereof. In no such event shall any part of the corpus or income of the Trust Fund as it relates to such Participating Employer be used for or diverted to purposes other than for the exclusive benefit of the employees of such Participating Employer.

11.8 ADMINISTRATOR’S AUTHORITY

The Administrator shall have authority to make any and all necessary rules or regulations, binding upon all Participating Employers and all Participants, to effectuate the purpose of this Article.

11.9 PARTICIPATING EMPLOYER CONTRIBUTION FOR AFFILIATE

If any Participating Employer is prevented in whole or in part from making a contribution which it would otherwise have made under the Plan by reason of having no current or accumulated earnings or profits, or because such earnings or profits are less than the contribution which it would otherwise have made, then, pursuant to Code Section 404(a)(3)(B), so much of the contribution which such Participating Employer was so prevented from making may be made, for the benefit of the participating employees of such Participating Employer, by other Participating Employers who are members of the same affiliated group within the meaning of Code Section 1504 to the extent of their current or accumulated earnings or profits, except that such contribution by each such other Participating Employer shall be limited to the proportion of its total current and accumulated earnings or profits remaining after adjustment for its contribution to the Plan made without regard to this paragraph which the total prevented contribution bears to the total current and accumulated earnings or profits of all the Participating Employers remaining after adjustment for all contributions made to the Plan without regard to this paragraph.

A Participating Employer on behalf of whose employees a contribution is made under this paragraph shall not be required to reimburse the contributing Participating Employers.

ARTICLE XII CASH OR DEFERRED PROVISIONS

Except as specifically provided elsewhere in this Plan, the provisions of this Article shall apply with respect to any 401(k) Profit Sharing Plan regardless of any provisions in the Plan to the contrary.

12.1 FORMULA FOR DETERMINING EMPLOYER’S CONTRIBUTION

	(a) For each Plan Year, the Employer will (or may with respect to any discretionary contributions) contribute to the Plan:

		(1) The amount of the total salary reduction elections of all Participants made pursuant to Section 12.2(a), which amount shall be deemed Elective Deferrals, plus

		(2) If elected in the Adoption Agreement, a matching contribution equal to the percentage, if any, specified in the Adoption Agreement of the Elective Deferrals of each Participant eligible to share in the allocations of the matching contribution, which amount shall be deemed an Employer’s matching contribution or Qualified Matching Contribution as elected in the Adoption Agreement, plus

		(3) If elected in the Adoption Agreement, a Prevailing Wage Contribution or a discretionary amount determined each year by the Employer, which amount if any, shall be deemed an Employer’s Non-Elective Contribution, plus

		(4) If elected in the Adoption Agreement, a Qualified Non-Elective Contribution.

	(b) Notwithstanding the foregoing, if the Employer is not a tax-exempt entity, then the Employer’s contributions for any Fiscal Year may generally not exceed the maximum amount allowable as a deduction to the Employer under the provisions of Code Section 404. However, to the extent necessary to provide the top heavy minimum allocations, the Employer shall make a contribution even if it exceeds current or accumulated Net Profit or the amount that is deductible under Code Section 404. All contributions by the Employer shall be made in cash or in such property as is acceptable to the Trustee.

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DEFINED CONTRIBUTION PLAN

12.2 PARTICIPANT’S SALARY REDUCTION ELECTION

	(a) Each Participant may elect to defer a portion of Compensation which would have been received in the Plan Year, but for the salary reduction election, subject to the limitations of this Section and the Adoption Agreement. A salary reduction election (or modification of an earlier election) may not be made with respect to Compensation which is currently available on or before the date the Participant executed such election, or if later, the later of the date the Employer adopts this cash or deferred arrangement or the date such arrangement first became effective. Any elections made pursuant to this Section shall become effective as soon as is administratively feasible. If the automatic election option is elected in the Adoption Agreement, then in the event a Participant fails to make a deferral election and does not affirmatively elect to receive cash, such Participant shall be deemed to have made a deferral election equal to the percentage of Compensation set forth in the Adoption Agreement. The automatic election may, in accordance with procedures established by the Administrator, be applied to all Participants or to Eligible Employees who become Participants after a certain date. For purposes of this Section, the annual dollar limitation of Code Section 401(a)(17) ($150,000 as adjusted) shall not apply.

	Additionally, if elected in the Adoption Agreement, each Participant may elect to defer a different percentage or amount of any cash bonus to be paid by the Employer during the Plan Year. A deferral election may not be made with respect to cash bonuses which are currently available on or before the date the Participant executes such election.

	The amount by which Compensation and/or cash bonuses are reduced shall be that Participant’s Elective Deferrals and shall be treated as an Employer contribution and allocated to that Participant’s Elective Deferral Account.

	Once made, a Participant’s election to reduce Compensation shall remain in effect until modified or terminated. Modifications may be made as specified in the Adoption Agreement, and terminations may be made at any time. Any modification or termination of an election will become effective as soon as is administratively feasible.

	(b) The balance in each Participant’s Elective Deferral Account, Qualified Matching Contribution Account and Qualified Non-Elective Contribution Account shall be fully Vested at all times and, except as otherwise provided herein, shall not be subject to Forfeiture for any reason.

	(c) Amounts held in a Participant’s Elective Deferral Account, Qualified Matching Contribution Account and Qualified Non-Elective Account may only be distributable as provided in (4), (5) or (6) below or as provided under the other provisions of this Plan, but in no event prior to the earlier of the following events or any other events permitted by the Code or Regulations:

		(1) the Participant’s separation from service, Total and Permanent Disability, or death;

		(2) the Participant’s attainment of age 59 1/2;

		(3) the proven financial hardship of the Participant, subject to the limitations of Section 12.9;

		(4) the termination of the Plan without the existence at the time of Plan termination of another defined contribution plan or the establishment of a successor defined contribution plan by the Employer or an Affiliated Employer within the period ending twelve months after distribution of all assets from the Plan maintained by the Employer. For this purpose, a defined contribution does not include an employee stock ownership plan (as defined in Code Section 4975(e)(7) or 409), a simplified employee pension plan (as defined in Code Section 408(k)), or a SIMPLE individual retirement account plan (as defined in Code Section 408(p));

		(5) the date of the sale by the Employer to an entity that is not an Affiliated Employer of substantially all of the assets (within the meaning of Code Section 409(d)(2)) with respect to a Participant who continues employment with the corporation acquiring such assets; or

		(6) the date of the sale by the Employer or an Affiliated Employer of its interest in a subsidiary (within the meaning of Code Section 409(d)(3)) to an entity that is not an Affiliated Employer with respect to a Participant who continues employment with such subsidiary.

		Distributions that are made because of (4), (5), or (6) above must be made in a lump-sum.

	(d) A Participant’s “elective deferrals” made under this Plan and all other plans, contracts or arrangements of the Employer maintaining this Plan during any calendar year shall not exceed the dollar limitation imposed by Code Section 402(g), as in effect at the beginning of such calendar year. This dollar limitation shall be adjusted annually pursuant to the method provided in Code Section 415(d) in accordance with Regulations. For this

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	purpose, “elective deferrals” means, with respect to a calendar year, the sum of all employer contributions made on behalf of such Participant pursuant to an election to defer under any qualified cash or deferred arrangement as described in Code Section 401(k), any salary reduction simplified employee pension (as defined in Code Section 408(k)(6)), any SIMPLE IRA plan described in Code Section 408(p), any eligible deferred compensation plan under Code Section 457, any plans described under Code Section 501(c)(18), and any Employer contributions made on the behalf of a Participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a salary reduction agreement. “Elective deferrals” shall not include any deferrals properly distributed as excess “Annual Additions” pursuant to Section 4.5.

	(e) If a Participant has Excess Deferrals for a taxable year, the Participant may, not later than March 1st following the close of such taxable year, notify the Administrator in writing of such excess and request that the Participant’s Elective Deferrals under this Plan be reduced by an amount specified by the Participant. In such event, the Administrator shall direct the distribution of such excess amount (and any “Income” allocable to such excess amount) to the Participant not later than the first April 15th following the close of the Participant’s taxable year. Any distribution of less than the entire amount of Excess Deferrals and “Income” shall be treated as a pro rata distribution of Excess Deferrals and “Income.” The amount distributed shall not exceed the Participant’s Elective Deferrals under the Plan for the taxable year. Any distribution on or before the last day of the Participant’s taxable year must satisfy each of the following conditions:

		(1) the Participant shall designate the distribution as Excess Deferrals;

		(2) the distribution must be made after the date on which the Plan received the Excess Deferrals; and

		(3) the Plan must designate the distribution as a distribution of Excess Deferrals.

	Regardless of the preceding, if a Participant has Excess Deferrals solely from elective deferrals made under this Plan or any other plan maintained by the Employer, a Participant will be deemed to have notified the Administrator of such excess amount and the Administrator shall direct the distribution of such Excess Deferrals in a manner consistent with the provisions of this subsection.

	Any distribution made pursuant to this subsection shall be made first from unmatched Elective Deferrals and, thereafter, from Elective Deferrals which are matched. Matching contributions which relate to Excess Deferrals that are distributed pursuant to this Section 12.2(e) shall be treated as a Forfeiture to the extent required pursuant to Code Section 401(a)(4) and the Regulations thereunder.

	For the purpose of this subsection, “Income” means the amount of income or loss allocable to a Participant’s Excess Deferrals, which amount shall be allocated in the same manner as income or losses are allocated pursuant to Section 4.3(c). However, “Income” for the period between the end of the taxable year of the Participant and the date of the distribution (the “gap period”) is not required to be distributed.

	(f) Notwithstanding the preceding, a Participant’s Excess Deferrals shall be reduced, but not below zero, by any distribution and/or recharacterization of Excess Deferrals pursuant to Section 12.5(a) for the Plan Year beginning with or within the taxable year of the Participant.

	(g) In the event a Participant has received a hardship distribution pursuant to Regulation 1.401(k)-1(d)(2)(iii)(B) from any other plan maintained by the Employer or from the Participant’s Elective Deferral Account pursuant to Section 12.9, then such Participant shall not be permitted to elect to have Elective Deferrals contributed to the Plan for a period of twelve (12) months following the receipt of the distribution. Furthermore, the dollar limitation under Code Section 402(g) shall be reduced, with respect to the Participant’s taxable year following the taxable year in which the hardship distribution was made, by the amount of such Participant’s Elective Deferrals, if any, made pursuant to this Plan (and any other plan maintained by the Employer) for the taxable year of the hardship distribution.

	(h) At Normal Retirement Date, or such other date when the Participant shall be entitled to receive benefits, the fair market value of the Participant’s Elective Deferral Account shall be used to provide benefits to the Participant or the Participant’s Beneficiary.

	(i) If during a Plan Year, it is projected that the aggregate amount of Elective Deferrals to be allocated to all Highly Compensated Participants under this Plan would cause the Plan to fail the tests set forth in Section 12.4, then the Administrator may automatically reduce the deferral amount of affected Highly Compensated Participants, beginning with the Highly Compensated Participant who has the highest actual deferral ratio until it is anticipated the Plan will pass the tests or until the actual deferral ratio equals the actual deferral ratio of the Highly Compensated Participant having the next highest actual deferral ratio. This process may continue until it is anticipated that the Plan will satisfy one of the tests set forth in Section 12.4. Alternatively, the Employer may specify a maximum percentage of Compensation that may be deferred by Highly Compensated Participants.

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DEFINED CONTRIBUTION PLAN

	(j) The Employer and the Administrator shall establish procedures necessary to implement the salary reduction elections provided for herein. Such procedures may contain limits on salary deferral elections such as limiting elections to whole percentages of Compensation or to equal dollar amounts per pay period that an election is in effect.

12.3 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS

	(a) The Administrator shall establish and maintain an account in the name of each Participant to which the Administrator shall credit as of each Anniversary Date, or other Valuation Date, all amounts allocated to each such Participant as set forth herein.

	(b) The Employer shall provide the Administrator with all information required by the Administrator to make a proper allocation of Employer contributions for each Plan Year. Within a reasonable period of time after the date of receipt by the Administrator of such information, the Administrator shall allocate contributions as follows:

		(1) With respect to Elective Deferrals made pursuant to Section 12.1(a)(1), to each Participant’s Elective Deferral Account in an amount equal to each such Participant’s Elective Deferrals for the year.

		(2) With respect to the Employer’s matching contribution made pursuant to Section 12.1(a)(2), to each Participant’s Account, or Participant’s Qualified Matching Contribution Account, as elected in the Adoption Agreement, in accordance with Section 12.1(a)(2).

		Except, however, in order to be entitled to receive any Employer matching contribution, a Participant must satisfy the conditions for sharing in the Employer matching contribution as set forth in the Adoption Agreement. Furthermore, regardless of any election in the Adoption Agreement to the contrary, for the Plan Year in which this Plan terminates, a Participant shall only be eligible to share in the allocation of the Employer’s contributions for the Plan Year if the Participant is employed at the end of the Plan Year and has completed a Year of Service (or Period of Service if the Elapsed Time Method is elected).

		(3) With respect to the Employer’s Non-Elective Contribution made pursuant to Section 12.1(a)(3), to each Participant’s Account in accordance with the provisions of Section 4.3(b)(2) or (3) whichever is applicable.

		(4) With respect to the Employer’s Qualified Non-Elective Contribution made pursuant to Section 12.1(a)(4), to each Participant’s (excluding Highly Compensated Employees, if elected in the Adoption Agreement) Qualified Non-Elective Contribution Account in accordance with the Adoption Agreement.

	(c) Notwithstanding anything in the Plan to the contrary, in determining whether a Non-Key Employee has received the required minimum allocation pursuant to Section 4.3(f) such Non-Key Employee’s Elective Deferrals and matching contributions used to satisfy the ADP tests in Section 12.4 or the ACP tests in Section 12.6 shall not be taken into account.

	(d) Notwithstanding anything herein to the contrary, Participants who terminated employment during the Plan Year shall share in the salary deferral contributions made by the Employer for the year of termination without regard to the Hours of Service credited.

	(e) Notwithstanding anything herein to the contrary (other than Sections 4.3(f) and 12.3(f)), Participants shall only share in the allocations of the Employer’s matching contribution made pursuant to Section 12.1(a)(2), the Employer’s Non-Elective Contributions made pursuant to Section 12.1(a)(3), the Employer’s Qualified Non-Elective Contribution made pursuant to Section 12.1(a)(4), and Forfeitures as provided in the Adoption Agreement. If no election is made in the Adoption Agreement, then a Participant shall be eligible to share in the allocation of the Employer’s contribution for the year if the Participant completes more than 500 Hours of Service (or three (3) Months of Service if the Elapsed Time method is chosen in the Adoption Agreement) during the Plan Year or who is employed on the last day of the Plan Year. Furthermore, regardless of any election in the Adoption Agreement to the contrary, for the Plan Year in which this Plan terminates, a Participant shall only be eligible to share in the allocation of the Employer’s contributions for the Plan Year if the Participant is employed at the end of the Plan Year and has completed a Year of Service (or Period of Service if the Elapsed Time Method is elected).

	(f) Notwithstanding anything in this Section to the contrary, the provisions of this subsection apply for any Plan Year if, in the non-standardized Adoption Agreement, the Employer elected to apply the 410(b) ratio percentage failsafe provisions and the Plan fails to satisfy the “ratio percentage test” due to a last day of the Plan Year allocation condition or an Hours of Service (or months of service) allocation condition. A plan satisfies the “ratio percentage test” if, on the last day of the Plan Year, the “benefiting ratio” of the Non-Highly Compensated Employees who are “includible” is at least 70% of the “benefiting ratio” of the Highly Compensated Employees who are

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	“includible.” The “benefiting ratio” of the Non-Highly Compensated Employees is the number of “includible” Non-Highly Compensated Employees “benefiting” under the Plan divided by the number of “includible” Employees who are Non-Highly Compensated Employees. The “benefiting ratio” of the Highly Compensated Employees is the number of Highly Compensated Employees “benefiting” under the Plan divided by the number of “includible” Highly Compensated Employees. “Includible” Employees are all Employees other than: (1) those Employees excluded from participating in the plan for the entire Plan Year by reason of the collective bargaining unit exclusion or the nonresident alien exclusion described in the Code or by reason of the age and service requirements of Article III; and (2) any Employee who incurs a separation from service during the Plan Year and fails to complete at least 501 Hours of Service (or three (3) months of service if the Elapsed Time Method is being used) during such Plan Year.

	For purposes of this subsection, an Employee is “benefiting” under the Plan on a particular date if, under the Plan, the Employee is entitled to an Employer contribution or an allocation of Forfeitures for the Plan Year.

	If this subsection applies, then the Administrator will suspend the allocation conditions for the “includible” Non-Highly Compensated Employees who are Participants, beginning first with the “includible” Employees employed by the Employer on the last day of the Plan Year, then the “includible” Employees who have the latest separation from service during the Plan Year, and continuing to suspend the allocation conditions for each “includible” Employee who incurred an earlier separation from service, from the latest to the earliest separation from service date, until the Plan satisfies the “ratio percentage test” for the Plan Year. If two or more “includible” Employees have a separation from service on the same day, then the Administrator will suspend the allocation conditions for all such “includible” Employees, irrespective of whether the Plan can satisfy the “ratio percentage test” by accruing benefits for fewer than all such “includible” Employees. If the Plan for any Plan Year suspends the allocation conditions for an “includible” Employee, then that Employee will share in the allocation for that Plan Year of the Employer contribution and Forfeitures, if any, without regard to whether the Employee has satisfied the other allocation conditions set forth in this Section.

		If the Plan includes Employer matching contributions subject to ACP testing, this subsection applies separately to the Code Section 401(m) portion of the Plan.

12.4 ACTUAL DEFERRAL PERCENTAGE TESTS

	(a) Except as otherwise provided herein, this subsection applies if the Prior Year Testing method is elected in the Adoption Agreement. The “Actual Deferral Percentage” (hereinafter “ADP”) for a Plan Year for Participants who are Highly Compensated Employees (hereinafter “HCEs”) for each Plan Year and the prior year’s ADP for Participants who were Non-Highly Compensated Employees (hereinafter “NHCEs”) for the prior Plan Year must satisfy one of the following tests:

		(1) The ADP for a Plan Year for Participants who are HCEs for the Plan Year shall not exceed the prior year’s ADP for Participants who were NHCEs for the prior Plan Year multiplied by 1.25; or

		(2) The ADP for a Plan Year for Participants who are HCEs for the Plan Year shall not exceed the prior year’s ADP for Participants who were NHCEs for the prior Plan Year multiplied by 2.0, provided that the ADP for Participants who are HCEs does not exceed the prior year’s ADP for Participants who were NHCEs in the prior Plan Year by more than two (2) percentage points.

		Notwithstanding the above, for purposes of applying the foregoing tests with respect to the first Plan Year in which the Plan permits any Participant to make Elective Deferrals, the ADP for the prior year’s NHCEs shall be deemed to be three percent (3%) unless the Employer has elected in the Adoption Agreement to use the current Plan Year’s ADP for these Participants. However, the provisions of this paragraph may not be used if the Plan is a successor plan or is otherwise prohibited from using such provisions pursuant to IRS Notice 98-1 (or superseding guidance).

	(b) Notwithstanding the foregoing, if the Current Year Testing method is elected in the Adoption Agreement, the ADP tests in (a)(1) and (a)(2), above shall be applied by comparing the current Plan Year’s ADP for Participants who are HCEs with the current Plan Year’s ADP (rather than the prior Plan Year’s ADP) for Participants who are NHCEs for the current Plan Year. Once made, this election can only be changed if the Plan meets the requirements for changing to the Prior Year Testing method set forth in IRS Notice 98-1 (or superseding guidance). Furthermore, this Plan must use the same testing method for both the ADP and ACP tests for Plan Years beginning on or after the date the Employer adopts its GUST restated plan.

	(c) This subsection applies to prevent the multiple use of the test set forth in subsection (a)(2) above. Any HCE eligible to make Elective Deferrals pursuant to Section 12.2 and to make after-tax voluntary Employee contributions or to receive matching contributions under this Plan or under any other plan maintained by the Employer or an Affiliated Employer, shall have either the actual deferral ratio adjusted in the manner described in Section 12.5 or the actual contribution ratio adjusted in the manner described in Section 12.7 so that the “Aggregate Limit” is not

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	exceeded pursuant to Regulation 1.401(m)-2. The amounts in excess of the “Aggregate Limit” shall be treated as either an Excess Contribution or an Excess Aggregate Contribution. The ADP and ACP of the HCEs are determined after any corrections required to meet the ADP and ACP tests and are deemed to be the maximum permitted under such tests for the Plan Year. Multiple use does not occur if either the ADP or ACP of the HCEs does not exceed 1.25 multiplied by the ADP and ACP of the NHCEs.

	“Aggregate Limit” means the sum of (i) 125 percent of the greater of the ADP of the NHCEs for the prior Plan Year or the ACP of such NHCEs under the plan subject to Code Section 401(m) for the Plan Year beginning with or within the prior Plan Year of the cash or deferred arrangement and (ii) the lesser of 200% or two (2) plus the lesser of such ADP or ACP. “Lesser” is substituted for “greater” in (i) above, and “greater” is substituted for “lesser” after “two (2) plus the” in (ii) above if it would result in a larger Aggregate Limit. If the Employer has elected in the Adoption Agreement to use the Current Year Testing method, then in calculating the “Aggregate Limit” for a particular Plan Year, the NHCEs ADP and ACP for that Plan Year, instead of the prior Plan Year, is used.

	(d) A Participant is an HCE for a particular Plan Year if the Participant meets the definition of an HCE in effect for that Plan Year. Similarly, a Participant is an NHCE for a particular Plan Year if the Participant does not meet the definition of an HCE in effect for that Plan Year.

	(e) For the purposes of this Section and Section 12.5, ADP means, for a specific group of Participants for a Plan Year, the average of the ratios (calculated separately for each Participant in such group) of (1) the amount of Employer contributions actually paid over to the Plan on behalf of such Participant for the Plan Year to (2) the Participant’s 414(s) Compensation for such Plan Year. Employer contributions on behalf of any participant shall include: (1) any Elective Deferrals made pursuant to the Participant’s deferral election (including Excess Deferrals of HCEs), but excluding (i) Excess Deferrals of NHCEs that arise solely from Elective Deferrals made under the plan or plans of this Employer and (ii) Elective Deferrals that are taken into account in the ACP tests set forth in Section 12.6 (provided the ADP test is satisfied both with and without exclusion of these Elective Deferrals); and (2) at the election of the Employer, Qualified Non-Elective Contributions and Qualified Matching Contributions to the extent such contributions are not used to satisfy the ACP test.

	The actual deferral ratio for each Participant and the ADP for each group shall be calculated to the nearest one-hundredth of one percent. Elective Deferrals allocated to each Highly Compensated Participant’s Elective Deferral Account shall not be reduced by Excess Deferrals to the extent such excess amounts are made under this Plan or any other plan maintained by the Employer.

	(f) For purposes of this Section and Section 12.5, a Highly Compensated Participant and a Non-Highly Compensated Participant shall include any Employee eligible to make salary deferrals pursuant to Section 12.2 for the Plan Year. Such Participants who fail to make Elective Deferrals shall be treated for ADP purposes as Participants on whose behalf no Elective Deferrals are made.

	(g) In the event this Plan satisfies the requirements of Code Sections 401(a)(4), 401(k), or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections of the Code only if aggregated with this Plan, then this Section shall be applied by determining the ADP of Employees as if all such plans were a single plan. Any adjustments to the NHCE ADP for the prior year will be made in accordance with IRS Notice 98-1 and any superseding guidance, unless the Employer has elected in the Adoption Agreement to use the Current Year Testing method. Plans may be aggregated in order to satisfy Code Section 401(k) only if they have the same Plan Year and use the same ADP testing method.

	(h) The ADP for any Participant who is an HCE for the Plan Year and who is eligible to have Elective Deferrals (and Qualified Non-Elective Contributions or Qualified Matching Contributions, or both, if treated as Elective Deferrals for purposes of the ADP test) allocated to such Participant’s accounts under two (2) or more arrangements described in Code Section 401(k), that are maintained by the Employer, shall be determined as if such Elective Deferrals (and, if applicable, such Qualified Non-Elective Contributions or Qualified Matching Contributions, or both) were made under a single arrangement for purposes of determining such HCE’s actual deferral ratio. However, if the cash or deferred arrangements have different Plan Years, this paragraph shall be applied by treating all cash or deferred arrangements ending with or within the same calendar year as a single arrangement. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under Regulations under Code Section 401.

	(i) For purposes of determining the ADP and the amount of Excess Contributions pursuant to Section 12.5, only Elective Deferrals, Qualified Non-Elective Contributions and Qualified Matching Contributions contributed to the Plan prior to the end of the twelve (12) month period immediately following the Plan Year to which the contributions relate shall be considered.

	(j) Notwithstanding anything in this Section to the contrary, the provisions of this Section and Section 12.5 may be applied separately (or will be applied separately to the extent required by Regulations) to each “plan”

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DEFINED CONTRIBUTION PLAN

	within the meaning of Regulation 1.401(k)-1(g)(11). Furthermore, for Plan Years beginning after December 31, 1998, the provisions of Code Section 401(k)(3)(F) may be used to exclude from consideration all Non-Highly Compensated Employees who have not satisfied the minimum age and service requirements of Code Section 410(a)(1)(A).

12.5 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS

	(a) In the event (or, with respect to subsection (c) when the Prior Year Testing method is being used, if it is anticipated) that for Plan Years beginning after December 31, 1996, the Plan does not satisfy one of the tests set forth in Section 12.4, the Administrator shall adjust Excess Contributions or the Employer shall make contributions pursuant to the options set forth below or any combination thereof. However, if the Prior Year testing method is being used and it is anticipated that the Plan might not satisfy one of such tests, then the Employer may make contributions pursuant to the options set forth in subsection (c) below.

	(b) On or before the fifteenth day of the third month following the end of each Plan Year, but in no event later than the close of the following Plan Year, the Highly Compensated Participant allocated the largest amount of Elective Deferrals shall have a portion of such Elective Deferrals (and “Income” allocable to such amounts) distributed (and/or, at the Participant’s election, recharacterized as a after-tax voluntary Employee contribution pursuant to Section 4.8) until the total amount of Excess Contributions has been distributed, or until the amount of the Participant’s Elective Deferrals equals the Elective Deferrals of the Highly Compensated Participant having the next largest amount of Elective Deferrals allocated. This process shall continue until the total amount of Excess Contributions has been distributed. Any distribution and/or recharacterization of Excess Contributions shall be made in the following order:

		(1) With respect to the distribution of Excess Contributions, such distribution:

			(i) may be postponed but not later than the close of the Plan Year following the Plan Year to which they are allocable;

			(ii) shall be made first from unmatched Elective Deferrals and, thereafter, simultaneously from Elective Deferrals which are matched and matching contributions which relate to such Elective Deferrals. Matching contributions which relate to Excess Contributions shall be forfeited unless the related matching contribution is distributed as an Excess Aggregate Contribution pursuant to Section 12.7;

			(iii) shall be adjusted for “Income”; and

			(iv) shall be designated by the Employer as a distribution of Excess Contributions (and “Income”).

		(2) With respect to the recharacterization of Excess Contributions pursuant to (a) above, such recharacterized amounts:

			(i) shall be deemed to have occurred on the date on which the last of those Highly Compensated Participants with Excess Contributions to be recharacterized is notified of the recharacterization and the tax consequences of such recharacterization;

			(ii) shall not exceed the amount of Elective Deferrals on behalf of any Highly Compensated Participant for any Plan Year;

			(iii) shall be treated as after-tax voluntary Employee contributions for purposes of Code Section 401(a)(4) and Regulation 1.401(k)-1(b). However, for purposes of Sections 4.3(f) and 9.2 (top heavy rules), recharacterized Excess Contributions continue to be treated as Employer contributions that are Elective Deferrals. Excess Contributions (and “Income” attributable to such amounts) recharacterized as after-tax voluntary Employee contributions shall continue to be nonforfeitable and subject to the same distribution rules provided for in Section 12.2(c); and

			(iv) are not permitted if the amount recharacterized plus after-tax voluntary Employee contributions actually made by such Highly Compensated Participant, exceed the maximum amount of after-tax voluntary Employee contributions (determined prior to application of Section 12.6) that such Highly Compensated Participant is permitted to make under the Plan in the absence of recharacterization.

		(3) Any distribution and/or recharacterization of less than the entire amount of Excess Contributions shall be treated as a pro rata distribution and/or recharacterization of Excess Contributions and “Income.”

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		(4) For the purpose of this Section, “Income” means the income or losses allocable to Excess Contributions, which amount shall be allocated at the same time and in the same manner as income or losses are allocated pursuant to Section 4.3(c). However, “Income” for the period between the end of the Plan Year and the date of the distribution (the “gap period”) is not required to be distributed.

		(5) Excess Contributions shall be treated as Employer contributions for purposes of Code Sections 404 and 415 even if distributed from the Plan.

	(c) Notwithstanding the above, within twelve (12) months after the end of the Plan Year (or, if the Prior Year Testing method is used, within twelve (12) months after the end of the prior Plan Year), the Employer may make a special Qualified Non-Elective Contribution or Qualified Matching Contribution in accordance with one of the following provisions which contribution shall be allocated to the Qualified Non-Elective Contribution Account or Qualified Matching Contribution Account of each Non-Highly Compensated Participant eligible to share in the allocation in accordance with such provision. The Employer shall provide the Administrator with written notification of the amount of the contribution being made and to which provision it relates.

		(1) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated in the same proportion that each Non-Highly Compensated Participant’s 414(s) Compensation for the year (or prior year if the Prior Year Testing method is being used) bears to the total 414(s) Compensation of all Non-Highly Compensated Participants for such year.

		(2) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated in the same proportion that each Non-Highly Compensated Participant’s 414(s) Compensation for the year (or prior year if the Prior Year Testing method is being used) bears to the total 414(s) Compensation of all Non-Highly Compensated Participants for such year. However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(3) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated in equal amounts (per capita).

		(4) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated in equal amounts (per capita). However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(5) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated to the Qualified Non-Elective Contribution Account of the Non-Highly Compensated Participant having the lowest 414(s) Compensation, until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied).

		(6) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated to the Qualified Non-Elective Contribution Account of the Non-Highly Compensated Participant having the lowest 414(s) Compensation, until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied). However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive

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		calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(7) A Qualified Matching Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated to the Qualified Matching Contribution Account of each Non-Highly Compensated Participant in the same proportion that each Non-Highly Compensated Participant’s Elective Deferrals for the year bears to the total Elective Deferrals of all Non-Highly Compensated Participants.

		(8) A Qualified Matching Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated to the Qualified Matching Contribution Account of each Non-Highly Compensated Participant in the same proportion that each Non-Highly Compensated Participant’s Elective Deferrals for the year bears to the total Elective Deferrals of all Non-Highly Compensated Participants. However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(9) A Qualified Matching Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated to the Qualified Matching Contribution Account of the Non-Highly Compensated Participant having the lowest Elective Deferrals until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied).

		(10) A Qualified Matching Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated to the Qualified Matching Contribution Account of the Non-Highly Compensated Participant having the lowest Elective Deferrals until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied). However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

	(d) Any Excess Contributions (and “Income”) which are distributed on or after 2 1/2 months after the end of the Plan Year shall be subject to the ten percent (10%) Employer excise tax imposed by Code Section 4979.

12.6 ACTUAL CONTRIBUTION PERCENTAGE TESTS

	(a) Except as otherwise provided herein, this subsection applies if the Prior Year Testing method is elected in the Adoption Agreement. The “Actual Contribution Percentage” (hereinafter “ACP”) for Participants who are Highly Compensated Employees (hereinafter “HCEs”) for each Plan Year and the prior year’s ACP for Participants who were Non-Highly Compensated Employees (hereinafter “NHCEs”) for the prior Plan Year must satisfy one of the following tests:

		(1) The ACP for a Plan Year for Participants who are HCEs for the Plan Year shall not exceed the prior year’s ACP for Participants who were NHCEs for the prior Plan Year multiplied by 1.25; or

		(2) The ACP for a Plan Year for Participants who are HCEs for the Plan Year shall not exceed the prior year’s ACP for Participants who were NHCEs for the prior Plan Year multiplied by 2.0, provided that the ACP for Participants who are HCEs does not exceed the prior year’s ACP for Participants who were NHCEs in the prior Plan Year by more than two (2) percentage points.

		Notwithstanding the above, for purposes of applying the foregoing tests with respect to the first Plan Year in which the Plan permits any Participant to make Employee contributions, provides for matching contributions, or both, the ACP for the prior year’s NHCEs shall be deemed to be three percent (3%) unless the Employer

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		has elected in the Adoption Agreement to use the current Plan Year’s ACP for these Participants. However, the provisions of this paragraph may not be used if the Plan is a successor plan or is otherwise prohibited from using such provisions pursuant to IRS Notice 98-1 (or superseding guidance).

	(b) Notwithstanding the preceding, if the Current Year Testing method is elected in the Adoption Agreement, the ACP tests in (a)(1) and (a)(2), above shall be applied by comparing the current Plan Year’s ACP for Participants who are HCEs with the current Plan Year’s ACP (rather than the prior Plan Year’s ACP) for Participants who are NHCEs for the current Plan Year. Once made, this election can only be changed if the Plan meets the requirements for changing to the Prior Year Testing method set forth in IRS Notice 98-1 (or superseding guidance). Furthermore, this Plan must use the same testing method for both the ADP and ACP tests for Plan Years beginning on or after the date the Employer adopts its GUST restated plan.

	(c) This subsection applies to prevent the multiple use of the test set forth in subsection (a)(2) above. Any HCE eligible to make Elective Deferrals pursuant to Section 12.2 and to make after-tax voluntary Employee contributions or to receive matching contributions under this Plan or under any other plan maintained by the Employer or an Affiliated Employer, shall have either the actual deferral ratio adjusted in the manner described in Section 12.5 or the actual contribution ratio reduced in the manner described in Section 12.7 so that the “Aggregate Limit” is not exceeded pursuant to Regulation 1.401(m)-2. The amounts in excess of the “Aggregate Limit” shall be treated as either an Excess Contribution or an Excess Aggregate Contribution. The ADP and ACP of the HCEs are determined after any corrections required to meet the ADP and ACP tests and are deemed to be the maximum permitted under such test for the Plan Year. Multiple use does not occur if either the ADP or ACP of the HCEs does not exceed 1.25 multiplied by the ADP and ACP of the NHCEs.

	“Aggregate Limit” means the sum of (i) 125 percent of the greater of the ADP of the NHCEs for the Plan Year or the ACP of such NHCEs under the plan subject to Code Section 401(m) for the Plan Year beginning with or within the prior Plan Year of the cash or deferred arrangement and (ii) the lesser of 200% or two plus the lesser of such ADP or ACP. “Lesser” is substituted for “greater” in (i) above, and “greater” is substituted for “lesser” after “two plus the” in (ii) above if it would result in a larger Aggregate Limit. If the Employer has elected in the Adoption Agreement to use the Current Year Testing method, then in calculating the “Aggregate Limit” for a particular Plan Year, the NHCEs ADP and ACP for that Plan Year, instead of the prior Plan Year, is used.

	(d) A Participant is a Highly Compensated Employee for a particular Plan Year if the Participant meets the definition of a Highly Compensated Employee in effect for that Plan Year. Similarly, a Participant is a Non-highly Compensated Employee for a particular Plan Year if the Participant does not meet the definition of a Highly Compensated Employee in effect for that Plan Year.

	(e) For the purposes of this Section and Section 12.7, ACP for a specific group of Participants for a Plan Year means the average of the “Contribution Percentages” (calculated separately for each Participant in such group). For this purpose, “Contribution Percentage” means the ratio (expressed as a percentage) of the Participant’s “Contribution Percentage Amounts” to the Participant’s 414(s) Compensation. The actual contribution ratio for each Participant and the ACP for each group, shall be calculated to the nearest one-hundredth of one percent of the Participant’s 414(s) Compensation.

	(f) “Contribution Percentage Amounts” means the sum of (i) after-tax voluntary Employee contributions, (ii) Employer “Matching Contributions” made pursuant to Section 12.1(a)(2) (including Qualified Matching Contributions to the extent such Qualified Matching Contributions are not used to satisfy the tests set forth in Section 12.4), (iii) Excess Contributions recharacterized as nondeductible voluntary Employee contributions pursuant to Section 12.5, and (iv) Qualified Non-Elective Contributions (to the extent not used to satisfy the tests set forth in Section 12.4). However, “Contribution Percentage Amounts” shall not include “Matching Contributions” that are forfeited either to correct Excess Aggregate Contributions or due to Code Section 401(a)(4) and the Regulations thereunder because the contributions to which they relate are Excess Deferrals, Excess Contributions, or Excess Aggregate Contributions. In addition, “Contribution Percentage Amounts” may include Elective Deferrals provided the ADP test in Section 12.4 is met before the Elective Deferrals are used in the ACP test and continues to be met following the exclusion of those Elective Deferrals that are used to meet the ACP test.

	(g) For purposes of determining the ACP and the amount of Excess Aggregate Contributions pursuant to Section 12.7, only Employer “Matching Contributions” (excluding “Matching Contributions” forfeited or distributed pursuant to Section 12.2(e), 12.5(b), or 12.7(b)) contributed to the Plan prior to the end of the succeeding Plan Year shall be considered. In addition, the Administrator may elect to take into account, with respect to Employees eligible to have Employer “Matching Contributions” made pursuant to Section 12.1(a)(2) or after-tax voluntary Employee contributions made pursuant to Section 4.7 allocated to their accounts, elective deferrals (as defined in Regulation 1.402(g)-1(b)) and qualified non-elective contributions (as defined in Code Section 401(m)(4)(C)) contributed to any plan maintained by the Employer. Such elective deferrals and qualified non-elective contributions shall be treated as Employer matching contributions subject to Regulation 1.401(m)-1(b)(2) which is incorporated herein by reference.

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	The Plan Year must be the same as the plan year of the plan to which the elective deferrals and the qualified non-elective contributions are made.

	(h) In the event that this Plan satisfies the requirements of Code Sections 401(a)(4), 401(m), or 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections of the Code only if aggregated with this Plan, then this Section shall be applied by determining the ACP of Employees as if all such plans were a single plan. Plans may be aggregated in order to satisfy Code section 401(m) only if they have the same Plan Year.

	Any adjustments to the NHCE ACP for the prior year will be made in accordance with IRS Notice 98-1 and any superseding guidance, unless the Employer has elected in the Adoption Agreement to use the Current Year Testing method. Plans may be aggregated in order to satisfy Code Section 401(k) only if they have the same Plan Year and use the same ACP testing method.

	(i) For the purposes of this Section, if an HCE is a Participant under two (2) or more plans (other than an employee stock ownership plan as defined in Code Section 4975(e)(7)) which are maintained by the Employer or an Affiliated Employer to which “Matching Contributions,” nondeductible voluntary Employee contributions, or both, are made, all such contributions on behalf of such HCE shall be aggregated for purposes of determining such HCP’s actual contribution ratio. However, if the plans have different plan years, this paragraph shall be applied by treating all plans ending with or within the same calendar year as a single plan.

	(j) For purposes of this Section and Section 12.7, a Highly Compensated Participant and a Non-Highly Compensated Participant shall include any Employee eligible to have “Matching Contributions” made pursuant to Section 12.1(a)(2) (whether or not a deferral election was made or suspended pursuant to Section 12.2(g)) allocated to such Participant’s account for the Plan Year or to make salary deferrals pursuant to Section 12.2 (if the Employer uses salary deferrals to satisfy the provisions of this Section) or after-tax voluntary Employee contributions pursuant to Section 4.7 (whether or not nondeductible voluntary Employee contributions are made) allocated to the Participant’s account for the Plan Year.

	(k) For purposes of this Section and Section 12.7, “Matching Contribution” means an Employer contribution made to the Plan, or to a contract described in Code Section 403(b), on behalf of a Participant on account of a nondeductible voluntary Employee contribution made by such Participant, or on account of a Participant’s elective deferrals under a plan maintained by the Employer.

	(l) For purposes of determining the ACP and the amount of Excess Aggregate Contributions pursuant to Section 12.7, only Elective Deferrals, Qualified Non-Elective Contributions, “Matching Contributions” and Qualified Matching Contributions contributed to the Plan prior to the end of the twelve (12) month period immediately following the Plan Year to which the contributions relate shall be considered.

	(m) Notwithstanding anything in this Section to the contrary, the provisions of this Section and Section 12.7 may be applied separately (or will be applied separately to the extent required by Regulations) to each “plan” within the meaning of Regulation 1.401(k)-1(g)(11). Furthermore, for Plan Years beginning after December 31, 1998, the provisions of Code Section 401(k)(3)(F) may be used to exclude from consideration all Non-Highly Compensated Employees who have not satisfied the minimum age and service requirements of Code Section 410(a)(1)(A).

12.7 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS

	(a) In the event (or, with respect to subsection (g) below when the Prior Year Testing method is being used, if it is anticipated) that for Plan Years beginning after December 31, 1996, the Plan does not satisfy one of the tests set forth in Section 12.6, the Administrator shall adjust Excess Aggregate Contributions or the Employer shall make contributions pursuant to the options set forth below or any combination thereof. However, if the Prior Year testing method is being used and it is anticipated that the Plan might not satisfy one of such tests, then the Employer may make contributions pursuant to the options set forth in subsection (c) below.

	(b) On or before the fifteenth day of the third month following the end of the Plan Year, but in no event later than the close of the following Plan Year the Highly Compensated Participant having the largest allocation of “Contribution Percentage Amounts” shall have a portion of such “Contribution Percentage Amounts” (and “Income” allocable to such amounts) distributed or, if non-Vested, Forfeited (including “Income” allocable to such Forfeitures) until the total amount of Excess Aggregate Contributions has been distributed, or until the amount of the Participant’s “Contribution Percentage Amounts” equals the “Contribution Percentage Amounts” of the Highly Compensated Participant having the next largest amount of “Contribution Percentage Amounts.” This process shall continue until the total amount of Excess Aggregate Contributions has been distributed or forfeited. Any distribution and/or Forfeiture of “Contribution Percentage Amounts” shall be made in the following order:

		(1) Employer matching contributions distributed and/or forfeited pursuant to Section 12.5(b)(1);

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		(2) After-tax voluntary Employee contributions including Excess Contributions recharacterized as after-tax voluntary Employee contributions pursuant to Section 12.5(b)(2);

		(3) Remaining Employer matching contributions.

	(c) Any distribution or Forfeiture of less than the entire amount of Excess Aggregate Contributions (and “Income”) shall be treated as a pro rata distribution of Excess Aggregate Contributions and “Income.” Distribution of Excess Aggregate Contributions shall be designated by the Employer as a distribution of Excess Aggregate Contributions (and “Income”). Forfeitures of Excess Aggregate Contributions shall be treated in accordance with Section 4.3. However, no such Forfeiture may be allocated to a Highly Compensated Participant whose contributions are reduced pursuant to this Section.

	(d) For the purpose of this Section, “Income” means the income or losses allocable to Excess Aggregate Contributions, which amount shall be allocated at the same time and in the same manner as income or losses are allocated pursuant to Section 4.3(c). However, “Income” for the period between the end of the Plan Year and the date of the distribution (the “gap period”) is not required to be distributed.

	(e) Excess Aggregate Contributions attributable to amounts other than nondeductible voluntary Employee contributions, including forfeited matching contributions, shall be treated as Employer contributions for purposes of Code Sections 404 and 415 even if distributed from the Plan.

	(f) The determination of the amount of Excess Aggregate Contributions with respect to any Plan Year shall be made after first determining the Excess Contributions, if any, to be treated as nondeductible voluntary Employee contributions due to recharacterization for the plan year of any other qualified cash or deferred arrangement (as defined in Code Section 401(k)) maintained by the Employer that ends with or within the Plan Year or which are treated as after-tax voluntary Employee contributions due to recharacterization pursuant to Section 12.5.

	(g) Notwithstanding the above, within twelve (12) months after the end of the Plan Year (or, if the Prior Year Testing method is used, within twelve (12) months after the end of the prior Plan Year), the Employer may make a special Qualified Non-Elective Contribution or Qualified Matching Contribution in accordance with one of the following provisions which contribution shall be allocated to the Qualified Non-Elective Contribution Account or Qualified Matching Contribution Account of each Non-Highly Compensated eligible to share in the allocation in accordance with such provision. The Employer shall provide the Administrator with written notification of the amount of the contribution being made and for which provision it is being made pursuant to.

		(1) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated in the same proportion that each Non-Highly Compensated Participant’s 414(s) Compensation for the year (or prior year if the Prior Year Testing method is being used) bears to the total 414(s) Compensation of all Non-Highly Compensated Participants for such year.

		(2) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated in the same proportion that each Non-Highly Compensated Participant’s 414(s) Compensation for the year (or prior year if the Prior Year Testing method is being used) bears to the total 414(s) Compensation of all Non-Highly Compensated Participants for such year. However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(3) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated in equal amounts (per capita).

		(4) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated in equal amounts (per capita). However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive

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		calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(5) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated to the Qualified Non-Elective Contribution Account of the Non-Highly Compensated Participant having the lowest 414(s) Compensation, until one of the tests set forth in Section 12.6 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.6 is satisfied (or is anticipated to be satisfied).

		(6) A Qualified Non-Elective Contribution may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated to the Qualified Non-Elective Contribution Account of the Non-Highly Compensated Participant having the lowest 414(s) Compensation, until one of the tests set forth in Section 12.6 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.6 is satisfied (or is anticipated to be satisfied). However, for purposes of this contribution, Non-Highly Compensated Employees who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(7) A “Matching Contribution” may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated on behalf of each Non-Highly Compensated Participant in the same proportion that each Non-Highly Compensated Participant’s Elective Deferrals for the year bears to the total Elective Deferrals of all Non-Highly Compensated Participants. The Employer shall designate, at the time the contribution is made, whether the contribution made pursuant to this provision shall be a Qualified Matching Contribution allocated to a Participant’s Qualified Matching Contribution Account or an Employer Non-Elective Contribution allocated to a Participant’s Non-Elective Account.

		(8) A “Matching Contribution” may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.6. Such contribution shall be allocated on behalf of each Non-Highly Compensated Participant in the same proportion that each Non-Highly Compensated Participant’s Elective Deferrals for the year bears to the total Elective Deferrals of all Non-Highly Compensated Participants. The Employer shall designate, at the time the contribution is made, whether the contribution made pursuant to this provision shall be a Qualified Matching Contribution allocated to a Participant’s Qualified Matching Contribution Account or an Employer Non-Elective Contribution allocated to a Participant’s Non-Elective Account. However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

		(9) A “Matching Contribution” may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated on behalf of the Non-Highly Compensated Participant having the lowest Elective Deferrals until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied). The Employer shall designate, at the time the contribution is made, whether the contribution made pursuant to this provision shall be a Qualified Matching Contribution allocated to a Participant’s Qualified Matching Contribution Account or an Employer Non-Elective Contribution allocated to a Participant’s Non-Elective Account.

		(10) A “Matching Contribution” may be made on behalf of Non-Highly Compensated Participants in an amount sufficient to satisfy (or to prevent an anticipated failure of) one of the tests set forth in Section 12.4. Such contribution shall be allocated on behalf of the Non-Highly Compensated Participant having the lowest Elective Deferrals until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied), or until such Non-Highly Compensated Participant has received the maximum “Annual Addition” pursuant to Section 4.4. This process shall continue until one of the tests set forth in Section 12.4 is satisfied (or is anticipated to be satisfied). The Employer shall designate, at the time the contribution is made, whether the

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		contribution made pursuant to this provision shall be a Qualified Matching Contribution allocated to a Participant’s Qualified Matching Contribution Account or an Employer Non-Elective Contribution allocated to a Participant’s Non-Elective Account. However, for purposes of this contribution, Non-Highly Compensated Participants who are not employed at the end of the Plan Year (or at the end of the prior Plan Year if the Prior Year Testing method is being used) and, if this is a standardized Plan, who have not completed more than 500 Hours of Service (or three (3) consecutive calendar months if the Elapsed Time Method is selected in the Adoption Agreement) during such Plan Year, shall not be eligible to share in the allocation and shall be disregarded.

	(h) Any Excess Aggregate Contributions (and “Income”) which are distributed on or after 2 1/2 months after the end of the Plan Year shall be subject to the ten percent (10%) Employer excise tax imposed by Code Section 4979.

12.8 SAFE HARBOR PROVISIONS

	(a) The provisions of this Section will apply if the Employer has elected, in the Adoption Agreement, to use the “ADP Test Safe Harbor” or “ACP Test Safe Harbor.” If the Employer has elected to use the “ADP Test Safe Harbor” for a Plan Year, then the provisions relating to the ADP test described in Section 12.4 and in Code Section 401(k)(3) do not apply for such Plan Year. In addition, if the Employer has also elected to use the “ACP Test Safe Harbor” for a Plan Year, then the provisions relating to the ACP test described in Section 12.6 and in Code Section 401(m)(2) do not apply for such Plan Year. Furthermore, to the extent any other provision of the Plan is inconsistent with the provisions of this Section, the provisions of this Section will govern.

		(b) For purposes of this Section, the following definitions apply:

		(1) “ACP Test Safe Harbor” means the method described in subsection (c) below for satisfying the ACP test of Code Section 401(m)(2).

		(2) “ACP Test Safe Harbor Matching Contributions” means “Matching Contributions” described in subsection (d)(1).

		(3) “ADP Test Safe Harbor” means the method described in subsection (c) for satisfying the ADP test of Code Section 401(k)(3).

		(4) “ADP Test Safe Harbor Contributions” means “Matching Contributions” and nonelective contributions described in subsection (c)(1) below.

		(5) “Compensation” means Compensation as defined in Section 1.11, except, for purposes of this Section, no dollar limit, other than the limit imposed by Code Section 401(a)(17), applies to the Compensation of a Non-Highly Compensated Employee. However, solely for purposes of determining the Compensation subject to a Participant’s deferral election, the Employer may use an alternative definition to the one described in the preceding sentence, provided such alternative definition is a reasonable definition within the meaning of Regulation 1.414(s)-1(d)(2) and permits each Participant to elect sufficient Elective Deferrals to receive the maximum amount of “Matching Contributions” (determined using the definition of Compensation described in the preceding sentence) available to the Participant under the Plan.

		(6) “Eligible Participant” means a Participant who is eligible to make Elective Deferrals under the Plan for any part of the Plan Year (or who would be eligible to make Elective Deferrals but for a suspension due to a hardship distribution described in Section 12.9 or to statutory limitations, such as Code Sections 402(g) and 415) and who is not excluded as an “Eligible Participant” under the 401(k) Safe Harbor elections in the Adoption Agreement.

		(7) “Matching Contributions” means contributions made by the Employer on account of an “Eligible Participant’s” Elective Deferrals.

		(c) The provisions of this subsection apply for purposes of satisfying the “ADP Test Safe Harbor.”

		(1) The “ADP Test Safe Harbor Contribution” is the contribution elected by the Employer in the Adoption Agreement to be used to satisfy the “ADP Test Safe Harbor.” However, if no contribution is elected in the Adoption Agreement, the Employer will contribute to the Plan for the Plan Year a “Basic Matching Contribution” on behalf of each “Eligible Employee.” The “Basic Matching Contribution” is equal to (i) one-hundred percent (100%) of the amount of an “Eligible Participant’s” Elective Deferrals that do not exceed three percent (3%) of the Participant’s “Compensation” for the Plan Year, plus (ii) fifty percent (50%) of the amount of the Participant’s Elective Deferrals that exceed three percent (3%) of the Participant’s “Compensation” but do not exceed five percent (5%) of the Participant’s “Compensation.”

(C) 2001 Markley Actuarial Services, Inc.


DEFINED CONTRIBUTION PLAN

		(2) Except as provided in subsection (e) below, for purposes of the Plan, a Basic Matching Contribution or an Enhanced Matching Contribution will be treated as a Qualified Matching Contribution and a Nonelective Safe Harbor Contribution will be treated as a Qualified Non-Elective Contribution. Accordingly, the “ADP Test Safe Harbor Contribution” will be fully Vested and subject to the distribution restrictions set forth in Section 12.2(c) (i.e., may generally not be distributed earlier than separation from service, death, disability, an event described in Section 401(k)(1), or, in case of a profit sharing plan, the attainment of age 59 1/2.). In addition, such contributions must satisfy the “ADP Test Safe Harbor” without regard to permitted disparity under Code Section 401(l).

		(3) At least thirty (30) days, but not more than ninety (90) days, before the beginning of the Plan Year, the Employer will provide each “Eligible Participant” a comprehensive notice of the Participant’s rights and obligations under the Plan, written in a manner calculated to be understood by the average Participant. However, if an Employee becomes eligible after the 90th day before the beginning of the Plan Year and does not receive the notice for that reason, the notice must be provided no more than ninety (90) days before the Employee becomes eligible but not later than the date the Employee becomes eligible.

		(4) In addition to any other election periods provided under the Plan, each “Eligible Participant” may make or modify a deferral election during the thirty (30) day period immediately following receipt of the notice described in subsection (3) above. Furthermore, if the “ADP Test Safe Harbor” is a “Matching Contribution” each “Eligible Employee” must be permitted to elect sufficient Elective Deferrals to receive the maximum amount of “Matching Contributions” available to the Participant under the Plan.

		(d) The provisions of this subsection apply if the Employer has elected to satisfy the “ACP Test Safe Harbor.”

		(1) In addition to the “ADP Test Safe Harbor Contributions,” the Employer will make any “Matching Contributions” in accordance with elections made in the Adoption Agreement. Such additional “Matching Contributions” will be considered “ACP Test Safe Harbor Matching Contributions.”

		(2) Notwithstanding any election in the Adoption Agreement to the contrary, an “Eligible Participant’s” Elective Deferrals in excess of six percent (6%) of “Compensation” may not be taken into account in applying “ACP Test Safe Harbor Matching Contributions.” In addition, effective with respect to Plan Years beginning after December 31, 1999, any portion of an “ACP Test Safe Harbor Matching Contribution” attributable to a discretionary “Matching Contribution” may not exceed four percent (4%) of an “Eligible Participant’s” “Compensation.”

	(e) The Plan is required to satisfy the ACP test of Code Section 401(m)(2), using the current year testing method, if the Plan permits after-tax voluntary Employee contributions or if matching contributions that do not satisfy the “ACP Test Safe Harbor” may be made to the Plan. In such event, only “ADP Test Safe Harbor Contributions” or “ACP Test Safe Harbor Contributions” that exceed the amount needed to satisfy the “ADP Test Harbor” or “ACP Test Safe Harbor” (if the Employer has elected to use the “ACP Test Safe Harbor”) may be treated as Qualified Nonelective Contributions or Qualified Matching Contributions in applying the ACP test. In addition, in applying the ACP test, elective contributions may not treated as matching contributions under Code Section 401(m)(3). Furthermore, in applying the ACP test, the Employer may elect to disregard with respect to all “Eligible Participants” (1) all “Matching Contributions” if the only “Matching Contributions” made to the Plan satisfy the “ADP Test Safe Harbor Contribution” (the “Basic Matching Contribution” or the “Enhanced Matching Contribution”) and (2) if the “ACP Test Safe Harbor” is satisfied, “Matching Contributions” that do not exceed four percent (4%) of each Participant’s “Compensation.”

12.9 ADVANCE DISTRIBUTION FOR HARDSHIP

	(a) The Administrator, at the election of a Participant, shall direct the Trustee to distribute to the Participant in any one Plan Year up to the lesser of (1) 100% of the accounts as elected in the Adoption Agreement valued as of the last Valuation Date or (2) the amount necessary to satisfy the immediate and heavy financial need of the Participant. Any distribution made pursuant to this Section shall be deemed to be made as of the first day of the Plan Year or, if later, the Valuation Date immediately preceding the date of distribution, and the account from which the distribution is made shall be reduced accordingly. Withdrawal under this Section shall be authorized only if the distribution is for one of the following or any other item permitted under Regulation 1.401(k)-1(d)(2)(iv):

		(1) Medical expenses described in Code Section 213(d) incurred by the Participant, the Participant’s spouse, or any of the Participant’s dependents (as defined in Code Section 152) or necessary for these persons to obtain medical care as described in Code Section 213(d);

(C) 2001 Markley Actuarial Services, Inc.


DEFINED CONTRIBUTION PLAN

		(2) Costs directly related to the purchase (excluding mortgage payments) of a principal residence for the Participant;

		(3) Payment of tuition and related educational fees, and room and board expenses, for the next twelve (12) months of post-secondary education for the Participant, the Participant’s spouse, children, or dependents (as defined in Code Section 152); or

		(4) Payments necessary to prevent the eviction of the Participant from the Participant’s principal residence or foreclosure on the mortgage on that residence.

	(b) No distribution shall be made pursuant to this Section unless the Administrator, based upon the Participant’s representation and such other facts as are known to the Administrator, determines that all of the following conditions are satisfied:

		(1) The distribution is not in excess of the amount of the immediate and heavy financial need of the Participant (including any amounts necessary to pay any federal, state, or local taxes or penalties reasonably anticipated to result from the distribution);

		(2) The Participant has obtained all distributions, other than hardship distributions, and all nontaxable loans currently available under all plans maintained by the Employer (to the extent the loan would not increase the hardship);

		(3) The Plan, and all other plans maintained by the Employer, provide that the Participant’s elective deferrals and nondeductible voluntary Employee contributions will be suspended for at least twelve (12) months after receipt of the hardship distribution; and

		(4) The Plan, and all other plans maintained by the Employer, provide that the Participant may not make elective deferrals for the Participant’s taxable year immediately following the taxable year of the hardship distribution in excess of the applicable limit under Code Section 402(g) for such next taxable year less the amount of such Participant’s elective deferrals for the taxable year of the hardship distribution.

	(c) Notwithstanding the above, distributions from the Participant’s Elective Deferral Account, Qualified Matching Contribution Account and Qualified Non-Elective Account pursuant to this Section shall be limited solely to the Participant’s Elective Deferrals and any income attributable thereto credited to the Participant’s Elective Deferral Account as of December 31, 1988. Furthermore, if a hardship distribution is permitted from more than one account type, the Administrator may determine any ordering of a Participant’s hardship distribution from such accounts.

	(d) Any distribution made pursuant to this Section shall be made in a manner which is consistent with and satisfies the provisions of Section 6.5, including, but not limited to, all notice and consent requirements of Code Sections 411(a)(11) and 417 and the Regulations thereunder.

ARTICLE XIII SIMPLE 401(K) PROVISIONS

13.1 SIMPLE 401(k) PROVISIONS

	(a) If elected in the Adoption Agreement, this Plan is intended to be a SIMPLE 401(k) plan which satisfies the requirements of Code Sections 401(k)(11) and 401(m)(10).

		(b) The provisions of this Article apply for a “year” only if the following conditions are met:

		(1) The Employer adopting this Plan is an “eligible employer.” An “eligible employer” means, with respect to any “year,” an Employer that had no more than 100 Employees who received at least $5,000 of “compensation” from the Employer for the preceding “year.” In applying the preceding sentence, all employees of an Affiliated Employer are taken into account.

		An “eligible employer” that has elected to use the SIMPLE 401(k) provisions but fails to be an “eligible employer” for any subsequent “year,” is treated as an “eligible employer” for the two (2) “years” following the last “year” the Employer was an “eligible employer.” If the failure is due to any acquisition, disposition, or similar transaction involving an “eligible employer,” the preceding sentence applies only if the provisions of Code Section 410(b)(6)(C)(i) are satisfied.

		(2) No contributions are made, or benefits accrued for services during the “year,” on behalf of any “eligible employee” under any other plan, contract, pension, or trust described in Code Section 219(g)(5)(A) or (B), maintained by the Employer.

(C) 2001 Markley Actuarial Services, Inc.

DEFINED CONTRIBUTION PLAN


	(c) To the extent that any other provision of the Plan is inconsistent with the provisions of this Article, the provisions of this Article govern.

13.2 DEFINITIONS


	(a) “Compensation” means, for purposes of this Article, the sum of the wages, tips, and other compensation from the Employer subject to federal income tax withholding (as described in Code Section 6051(a)(3)) and the Employee’s salary reduction contributions made under this or any other 401(k) plan, and, if applicable, elective deferrals under a Code Section 408(p) SIMPLE plan, a SARSEP, or a Code Section 403(b) annuity contract and compensation deferred under a Code Section 457 plan, required to be reported by the Employer on Form W-2 (as described in Code Section 6051(a)(8)). For self-employed individuals, “compensation” means net earnings from self-employment determined under Code Section 1402(a) prior to subtracting any contributions made under this Plan on behalf of the individual. The provisions of the plan implementing the limit on Compensation under Code Section 401(a)(17) apply to the “compensation” under this Article.

	(b) “Eligible employee” means, for purposes of this Article, any Participant who is entitled to make elective deferrals described in Code Section 402(g) under the terms of the Plan.

	(c) “Year” means the calendar year.

13.3 CONTRIBUTIONS


		(a) Salary Reduction Contributions

		(1) Each “eligible employee” may make a salary reduction election to have “compensation” reduced for the “year” in any amount selected by the Employee subject to the limitation in subsection (c) below. The Employer will make a salary reduction contribution to the Plan, as an Elective Deferral, in the amount by which the Employee’s “compensation” has been reduced.

		(2) The total salary reduction contribution for the “year” cannot exceed $6,000 for any Employee. To the extent permitted by law, this amount will be adjusted to reflect any annual cost-of-living increases announced by the IRS.

		(b) Other Contributions

		(1) Matching Contributions. Unless (2) below is elected, each “year” the Employer will make a matching contribution to the Plan on behalf of each Employee who makes a salary reduction election under Section 13.3(a). The amount of the matching contribution will be equal to the Employee’s salary reduction contribution up to a limit of three percent (3%) of the Employee’s “compensation” for the full “year.”

		(2) Nonelective Contributions. For any “year,” instead of a matching contribution, the Employer may elect to contribute a nonelective contribution of two percent (2%) of “compensation” for the “year” for each “eligible employee” who received at least $5,000 of “compensation” from the Employer for the “year.”

		(c) Limitation on Other Contributions

		No Employer or Employee contributions may be made to this Plan for the “year” other than salary reduction contributions described in Section 13.3(a), matching or nonelective contributions described in Section 13.3(b) and rollover contributions described in Regulation Section 1.402(c)-2, Q&A-1(a). Furthermore, the provisions of Section 4.4 which implement the limitations of Code Section 415 apply to contributions made pursuant to this Section.

13.4 ELECTION AND NOTICE REQUIREMENTS


		(a) Election Period

		(1) In addition to any other election periods provided under the Plan, each “eligible employee” may make or modify a salary reduction election during the 60-day period immediately preceding each January 1st.

		(2) For the “year” an Employee becomes eligible to make salary reduction contributions under this Article, the 60-day election period requirement of subsection (a)(1) is deemed satisfied if the Employee may make or modify a salary reduction election during a 60-day period that includes either the date the Employee becomes eligible or the day before.

DEFINED CONTRIBUTION PLAN


		(3) Each “eligible employee” may terminate a salary reduction election at any time during the “year.”

		(b) Notice Requirements

		(1) The Employer will notify each “eligible employee” prior to the 60-day election period described in Section 13.4(a) that a salary reduction election or a modification to a prior election may be made during that period.

		(2) The notification described in (1) above will indicate whether the Employer will provide a matching contribution described in Section 13.3(b)(1) or a two percent (2%) nonelective contribution described in section 13.3(b)(2).

13.5 VESTING REQUIREMENTS

All benefits attributable to contributions made pursuant to this Article are nonforfeitable at all times, and all previous contributions made under the Plan are nonforfeitable as of the beginning of the Plan Year that the 401(k) SIMPLE provisions apply.

13.6 TOP-HEAVY RULES

The Plan is not treated as a top heavy plan under Code Section 416 for any year for which the provisions of this Article are effective and satisfied.

13.7 NONDISCRIMINATION TESTS

The Plan is treated as meeting the requirements of Code Sections 401(k)(3)(A)(ii) and 401(m)(2) for any “year” for which the provisions of this Article are effective and satisfied. Accordingly, Sections 12.4, 12.5, 12.6 and 12.7 shall not apply to the Plan.

AMENDMENT TO
DEFINED CONTRIBUTION PLAN AND TRUST

Effective with respect to Employers adopting this prototype plan on or after July 1, 2002, Section 7.1(a) of the Plan is amended in its entirety to read as follows:


	(a) The provisions of this Article, other than Section 7.6, shall not apply to this Plan if a separate trust agreement, that has been approved by the Internal Revenue Service for use with this Plan, is being used.

Pursuant to Section 8.1(c) of the Plan, the mass submitter of the prototype plan has made this amendment (as evidenced by the submission of the amendment to the Internal Revenue Service for inclusion with the mass submitter prototype plan) on behalf of minor modifier sponsors that received opinion letters prior to March 1, 2002, and all identical sponsors of the mass submitter prototype plan.

AMENDMENT NO. 2 TO THE
GETTY REALTY CORP. RETIREMENT AND PROFIT SHARING PLAN

ARTICLE I
GENERAL RULES APPLICABLE TO ARTICLES II THROUGH V


1.1	Precedence. The requirements of this Amendment will take precedence over any inconsistent provisions of the Plan.

1.2	Effective Date. The provisions of Articles II through V will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year.

1.3	Requirements of Treasury Regulations Incorporated. All distributions required under Articles II through V will be determined and made in accordance with the Treasury regulations under Section 401(a)(9) of the Internal Revenue Code.

1.4	TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of Articles II through V, distributions may be made under a designation made before January 1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to Section 242(b)(2) of TEFRA.

ARTICLE II
TIME AND MANNER OF MINIMUM DISTRIBUTION REQUIRED UNDER CODE
SECTION 401(a)(9)


2.1	Required Beginning Date. The Participant’s entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant’s required beginning date.

2.2	Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant’s entire interest will be distributed, or begin to be distributed, no later than as follows:

		(a) If the Participant’s surviving spouse is the Participant’s sole designated beneficiary, then distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70 1/2, if later.

		(b) If the Participant’s surviving spouse is not the Participant’s sole designated beneficiary, distributions to the designated beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died.


		(c) If there is no designated beneficiary as of September 30 of the year following the year of the Participant’s death, the Participant’s entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.

		(d) If the Participant’s surviving spouse is the Participant’s sole designated beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this Section 2.2, other than Section 2.2(a), will apply as if the surviving spouse were the Participant.

	For purposes of this Section 2.2 and Article IV, unless Section 2.2(d) applies, distributions are considered to begin on the Participant’s required beginning date. If Section 2.2(d) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 2.2(a). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant’s required beginning date (or to the Participant’s surviving spouse before the date distributions are required to begin to the surviving spouse under Section 2.2(a)), the date distributions are considered to begin is the date distributions actually commence.

2.3	Forms of Distribution. Unless the Participant’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with Articles 3 and 4 of this Amendment. If the Participant’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Section 401(a)(9) of the Code and the Treasury regulations.

ARTICLE III
REQUIRED MINIMUM DISTRIBUTIONS DURING PARTICIPANT’S LIFETIME


3.1	Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participant’s lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of:

	(a) the quotient obtained by dividing the Participant’s account balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury regulations, using the Participant’s age as of the Participant’s birthday in the distribution calendar year; or

	(b) if the Participant’s sole designated beneficiary for the distribution calendar year is the Participant’s spouse, the quotient obtained by dividing the Participant’s account balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of


	the Treasury regulations, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the distribution calendar year.

3.2	Lifetime Required Minimum Distributions Continue Through Year of Participant’s Death. Required minimum distributions will be determined under this Article 3 beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant’s date of death.

ARTICLE IV
REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT’S DEATH


4.1	Death On or After Date Distributions Begin.

	(a) Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant’s designated beneficiary, determined as follows:

		(1) The Participant’s remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.

		(2) If the Participant’s surviving spouse is the Participant’s sole designated beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the Participant’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For distribution calendar years after the year of the surviving spouse’s death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.

		(3) If the Participant’s surviving spouse is not the Participant’s sole designated beneficiary, the designated beneficiary’s remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the Participant’s death, reduced by one for each subsequent year.

	(b) No Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is no designated beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the Participant’s remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.


4.2	Death Before Date Distributions Begin.

	(a) Participant Survived by Designated Beneficiary. If the Participant dies before the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the remaining life expectancy of the Participant’s designated beneficiary, determined as provided in Section 4.1.

	(b) No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no designated beneficiary as of September 30 of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.

	(c) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participant’s surviving spouse is the Participant’s sole designated beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse under Section 2.2(a), this Section 4.2 will apply as if the surviving spouse were the Participant.

4.3	Election to Apply 5-year rule or the Life Expectancy Rule

	(a) Participants or beneficiaries may elect on an individual basis whether the 5-year rule in Sections 2.2 of this Amendment or the life expectancy rule in 4.2 of this Amendment applies to distributions after the death of a Participant who has a designated beneficiary. The election must be made no later than the earlier of September 30 of the calendar year in which distribution would be required to begin under Section 2.2 of this Amendment, or by September 30 of the calendar year which contains the fifth anniversary of the Participant’s (or, if applicable, surviving spouse’s) death. If neither the Participant nor beneficiary makes an election under this paragraph, distributions will be made in accordance with Sections 2.2 and 4.2 of this Amendment.

	(b) A designated beneficiary who is receiving payments under the 5-year rule may make a new election to receive payments under the life expectancy rule until December 31, 2003, provided that all amounts that would have been required to be distributed under the life expectancy rule for all distribution calendar years before 2004 are distributed by the earlier of December 31, 2003 or the end of the 5-year period.

ARTICLE V
DEFINITIONS APPLICABLE TO THE APPLICATION OF MINIMUM DISTRIBUTIONS
REQUIRED UNDER CODE SECTION 401(a)(9)


5.1	Designated beneficiary. The individual who is designated as the Beneficiary under the Plan and is the designated beneficiary under Section 401(a)(9) of the Internal Revenue Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.

5.2	Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant’s required beginning date. For distributions beginning after the Participant’s death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 2.2. The required minimum distribution for the Participant’s first distribution calendar year will be made on or before the Participant’s required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant’s required beginning date occurs, will be made on or before December 31 of that distribution calendar year.

5.3	Life expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury regulations.

5.4	Participant’s account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year.

5.5	Required beginning date. The date specified in the Plan when distributions under Section 401(a)(9) of the Internal Revenue Code are required to begin.

ARTICLE VI
DEFINITIONS APPLICABLE TO COMPENSATION

6.1

Effective for Plan Years beginning after December 31, 1997, for purposes of any definition of compensation under this Plan that includes a reference to amounts under Section 125 of the Code, amounts under Section 125 of the Code include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that he or she has other health coverage. An amount will be treated as an amount under Section 125 of the Code only if the Employer does not request or collect information regarding the Participant’s other health coverage as part of the enrollment process for the health plan.

This amendment has been adopted and executed this 20th day of March, 2003.


Name of Plan:	Getty Realty Corp. Retirement and Profit Sharing Plan

Name of Employer:	Getty Realty Corp.


By:	/s/ THOMAS STIRNWEIS

	Thomas Stirnweis
	Corporate Controller and Treasurer
	EMPLOYER

	/s/ THOMAS STIRNWEIS

	Thomas Stirnweis
	TRUSTEE

	/s/ RANDI YOUNG FILIP

	Randi Young Filip
	TRUSTEE

	/s/ LEO LIEBOWITZ

	Leo Liebowitz
	TRUSTEE

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN

ADOPTION AGREEMENT FOR

MARKLEY ACTUARIAL SERVICES, INC.

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN AND TRUST

The undersigned Employer adopts Markley Actuarial Services, Inc. Prototype Non-Standardized 401(k) Profit Sharing Plan and Trust and elects the following provisions:

CAUTION: Failure to properly fill out this Adoption Agreement may result in disqualification of the Plan.

EMPLOYER INFORMATION

(An amendment to the Adoption Agreement is not needed solely to reflect a change in the information in this Employer Information Section.)


1.	EMPLOYER’S NAME, ADDRESS AND TELEPHONE NUMBER

	Name:	Getty Realty Corp.



	Address:	125 Jericho Turnpike, Suite 103

		Street


Jericho	New York	11753

City	State	Zip


	Telephone:	516-478-5403


2.	EMPLOYER’S TAXPAYER IDENTIFICATION NUMBER 11-3412575

3.	TYPE OF ENTITY

	a.	x	Corporation (including Tax-exempt or Non-profit Corporation)

	b.	o	Professional Service Corporation

	c.	o	S Corporation

	d.	o	Limited Liability Company that is taxed as:

			1.	o	a partnership or sole proprietorship

			2.	o	a Corporation

			3.	o	an S Corporation

	e.	o	Sole Proprietorship

	f.	o	Partnership (including Limited Liability)

	g.	o	Other:

	AND, the Employer is a member of (select all that apply):

	h.	o	a controlled group

	i.	o	an affiliated service group

4.	EMPLOYER FISCAL YEAR means the 12 consecutive month period:


Beginning on	January 1	(e.g., January 1st)

	month day

and ending on	December 31

	month day

PLAN INFORMATION

(An amendment to the Adoption Agreement is not needed solely to reflect a change in the information in Questions 9. through 11.)


5.	PLAN NAME:

	Getty Realty Corp. Retirement and Profit Sharing Plan

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN


6.	EFFECTIVE DATE

	a.	o	This is a new Plan effective as of ______________ (hereinafter called the “Effective Date”).

	b.	o	This is an amendment and restatement of a previously established qualified plan of the Employer which was originally effective___ (hereinafter called the “Effective Date”). The effective date of this amendment and restatement is ______________.

	c.	x	FOR GUST RESTATEMENTS: This is an amendment and restatement of a previously established qualified plan of the Employer to bring the Plan into compliance with GUST (GATT, USERRA, SBJPA and TRA ‘97). The original Plan effective February 1, 1978 (hereinafter called the “Effective Date”). Except as ___________ specifically provided in the Plan, the effective date of this amendment and restatement is January 1, 2002.

			(May enter a restatement date that is the first day of the current Plan Year. The Plan contains appropriate retroactive effective dates with respect to provisions for the appropriate laws.)

7.	PLAN YEAR means the 12 consecutive month period:


Beginning on	January 1st	(e.g., January 1st)

	month day

and ending on	December 31st

	month day


EXCEPT that there will be a Short Plan
Year:

a.	x	N/A

b.	o	beginning on		(e.g., July 1, 2000)

			month day, year
		and ending on

			month day, year


8.	VALUATION DATE means:

	a.	x	Every day that the Trustee, any transfer agent appointed by the Trustee or the Employer, and any stock exchange used by such agent are open for business (daily valuation).

	b.	o	The last day of each Plan Year.

	c.	o	The last day of each Plan Year half (semi-annual).

	d.	o	The last day of each Plan Year quarter.

	e.	o	Other (specify day or dates):___________________(must be at least once each Plan Year).

9.	PLAN NUMBER assigned by the Employer

	a.	x	001

	b.	o	002

	c.	o	003

	d.	o	Other:__________________________________________

10.	TRUSTEES:

	a.	x	Individual Trustee(s) who serve as discretionary Trustee(s) over assets not subject to control by a corporate Trustee.


	Name(s)		Title(s)
	Leo Liebowitz		Trustee

	Randi Young Filip		Trustee

	Thomas Stirnweis		Trustee


Address and Telephone number

1.	x	Use Employer address and telephone number.
2.	o	Use address and telephone number below:


Address:

		Street

	City	State	Zip
Telephone:

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN


	b.	o	Corporate Trustee


Name:


Address:

		Street


	City	State	Zip
Telephone:


AND, the corporate Trustee shall serve as:

1.	o	a directed (nondiscretionary) Trustee over all Plan assets except for the following:


2.	o	a discretionary Trustee over all Plan assets except for the following:


AND, shall a separate trust agreement be used with this Plan?

c.	o	Yes

d.	x	No

NOTE:		If Yes is selected, an executed copy of the trust agreement between the Trustee and the Employer must be attached to this Plan. The Plan and trust agreement will be read and construed together. The responsibilities, rights and powers of the Trustee shall be those specified in the trust agreement.


11.	PLAN ADMINISTRATOR’S NAME, ADDRESS AND TELEPHONE NUMBER: (If none is named, the Employer will become the Administrator.)

	a.	x	Employer (Use Employer address and telephone number).

	b.	o	Use name, address and telephone number below:


Name:


Address:

		Street

	City	State	Zip
Telephone:


12.	CONSTRUCTION OF PLAN

	This Plan shall be governed by the laws of the state or commonwealth where the Employer’s (or, in the case of a corporate Trustee, such Trustee’s) principal place of business is located unless another state or commonwealth is specified: New York

ELIGIBILITY REQUIREMENTS


13.	ELIGIBLE EMPLOYEES (Plan Section 1.18)

	FOR ALL PURPOSES OF THE PLAN (EXCEPT AS ELECTED IN d. or e. BELOW FOR EMPLOYER CONTRIBUTIONS) means all Employees (including Leased Employees) EXCEPT:

	NOTE:		If different exclusions apply to Elective Deferrals than to other Employer contributions, complete this part a.-b. for the Elective Deferral component of the Plan.

	a.	o	N/A. No exclusions.

	b.	x	The following are excluded, except that if b.3. is selected, such Employees will be included (select all that apply):

			1.	x	Union Employees (as defined in Plan Section 1.18).

			2.	o	Non-resident aliens (as defined in Plan Section 1.18).

			3.	o	Employees who became Employees as the result of a “Code Section 410(b)(6)(C) transaction” (as defined in Plan Section 1.18).

			4.	o	Salaried Employees

			5.	o	Highly Compensated Employees

			6.	o	Leased Employees

			7.	o	Other:


	HOWEVER, different exclusions will apply (select c. OR d. and/or e.):

	c.	x	N/A. The options elected in a.-b. above apply for all purposes of the Plan.

	d.	o	For purposes of all Employer contributions (other than Elective Deferrals and matching contributions)...

	e.	o	For purposes of Employer matching contributions...

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN


IF d. OR e. IS SELECTED, the following exclusions apply for such purposes (select f. or g.):

f.	o	N/A. No exclusions.

g.	o	The following are excluded, except that if g.3. is selected, such Employees will be included (select all that apply):

		1.	o	Union Employees (as defined in Plan Section 1.18).

		2.	o	Non-resident aliens (as defined in Plan Section 1.18).

		3.	o	Employees who became Employees as the result of a “Code Section 410(b)(6)(C) transaction” (as defined in Plan Section 1.18).

		4.	o	Salaried Employees

		5.	o	Highly Compensated Employees

		6.	o	Leased Employees

		7.	o	Other:


14.	THE FOLLOWING AFFILIATED EMPLOYER (Plan Section 1.6) will adopt this Plan as a Participating Employer (if there is more than one, or if Affiliated Employers adopt this Plan after the date the Adoption Agreement is executed, attach a list to this Adoption Agreement of such Affiliated Employers including their names, addresses, taxpayer identification numbers and types of entities):


	NOTE:	Employees of an Affiliated Employer that does not adopt this Adoption Agreement as a Participating Employer shall not be Eligible Employees. This Plan could violate the Code Section 410(b) coverage rules if all Affiliated Employers do not adopt the Plan.


			Address:


	Street


City	State	Zip


			Telephone:


			Taxpayer Identification Number:


AND, the Affiliated Employer is:

c.	o	Corporation (including Tax-exempt, Non-profit or Professional Service Corporation)

d.	o	S Corporation

e.	o	Limited Liability Company that is taxed as:


		1.	o	a partnership or sole proprietorship

		2.	o	a Corporation

		3.	o	an S Corporation

f.	o	Sole Proprietorship

g.	o	Partnership (including Limited Liability)

h.	o	Other:


15.	CONDITIONS OF ELIGIBILITY (Plan Section 3.1)

	Any Eligible Employee will be eligible to participate in the Plan upon satisfaction of the following:

	NOTE:	If the Year(s) of Service selected is or includes a fractional year, an Employee will not be required to complete any specified number of Hours of Service to receive credit for such fractional year. If expressed in months of service, an Employee will not be required to complete any specified number of Hours of Service in a particular month, unless elected in b.4. or i.4. below.

	ELIGIBILITY FOR ALL PURPOSES OF THE PLAN (EXCEPT AS ELECTED IN e.-k. BELOW FOR EMPLOYER CONTRIBUTIONS) (select a. or all that apply of b., c., and d.):

	NOTE:	If different conditions apply to Elective Deferrals than to other Employer contributions, complete this part a.-d. for the Elective Deferral component of the Plan.


a.	o	No age or service required. (Go to e.-g. below)

b.	x	Completion of the following service requirement which is based on Years of Service (or Periods of Service if the Elapsed Time Method is elected):
		1.	o	No service requirement

		2.	x	1/2 Year of Service or Period of Service

		3.	o	1 Year of Service or Period of Service

		4.	o	__________ - (not to exceed 1,000) Hours of Service within ___________ (not to exceed 12) months from the Eligible Employee’s employment commencement date. If an Employee does not complete the stated Hours of Service during the specified time period, the Employee is subject to the Year of Service requirement in b.3. above.

		5.	o	Other:


	(C)	2001 Markley Actuarial Services, Inc.

Non-Standardized 401(k) Profit Sharing Plan


			(may not exceed one (1) Year of Service or Period of Service)

	c.	x	Attainment of age:

			1.	o	No age requirement

			2.	o	20 1/2

			3.	x	21

			4.	o	Other: __________ (may not exceed 21)

	d.	o	The service and/or age requirements specified above shall be waived with respect to any Eligible Employee who was employed on __________ and such Eligible Employee shall enter the Plan as of such date.

			The requirements to be waived are (select one or both):

			1.	o	service requirement (will let part-time Eligible Employees in Plan)

			2.	o	age requirement

	HOWEVER, DIFFERENT ELIGIBILITY CONDITIONS WILL APPLY (select e. OR f. and/or g.):

	e.	o	N/A. The options elected in a.-d. above apply for all purposes of the Plan.

	f.	x	For purposes of all Employer contributions (other than Elective Deferrals and matching contributions)...

	g.	o	For purposes of Employer matching contributions...

	If f. OR g. IS SELECTED, the following eligibility conditions apply for such purposes:

	h.	o	No age or service requirements

	i.	x	Completion of the following service requirement which is based on Years of Service (or Periods of Service if the Elapsed Time Method is elected):

			1.	o	No service requirement

			2.	o	1/2 Year of Service or Period of Service

			3.	x	1 Year of Service or Period of Service

			4.	o	_________ (not to exceed 1,000) Hours of Service within ____________ (not to exceed 12) months from the Eligible Employee’s employment commencement date. If an Employee does not complete the stated Hours of Service during the specified time period, the Employee is subject to the Year of Service requirement in i.3. above.

			5.	o	1 1/2 Years of Service or Periods of Service

			6.	o	2 Years of Service or Periods of Service

			7.	o	Other:

						(may not exceed two (2) Years of Service or Periods of Service)

			NOTE:		If more than one (1) Year of Service is elected 100% immediate vesting is required.

	j.	x	Attainment of age:

			1.	o	No age requirement

			2.	o	20 1/2

			3.	x	21

			4.	o	Other: __________ (may not exceed 21)

	k.	o	The service and/or age requirements specified above shall be waived with respect to any Eligible Employee who was employed on and such Eligible Employee shall enter the Plan as of such date.

			The requirements to be waived are (select one or both):

			1.	o	service requirement (will let part-time Eligible Employees in Plan)

			2.	o	age requirement


16.	EFFECTIVE DATE OF PARTICIPATION (Plan Section 3.2)

	An Eligible Employee who has satisfied the eligibility requirements will become a Participant for all purposes of the Plan (except as elected in g.-p. below for Employer contributions):

	NOTE:		If different entry dates apply to Elective Deferrals than to other Employer contributions, complete this part a.-f. for the Elective Deferral component of the Plan.

	a.	o	the day on which such requirements are satisfied.

	b.	x	the first day of the month coinciding with or next following the date on which such requirements are satisfied.

	c.	o	the first day of the Plan Year quarter coinciding with or next following the date on which such requirements are satisfied.

	d.	o	the earlier of the first day of the seventh month or the first day of the Plan Year coinciding with or next following the date on which such requirements are satisfied.

	e.	o	the first day of the Plan Year next following the date on which such requirements are satisfied. (Eligibility must be 1/2 Year of Service (or Period of Service) or less and age must be 20 1/2 or less.)

	f.	o	other: ___________________________________________, provided that an Eligible Employee who has satisfied the maximum age (21) and service requirements (one (1) Year or Period of Service) and who is otherwise entitled to participate, shall commence participation no later than the earlier of (a) 6 months after such requirements are satisfied, or (b) the first day of the first Plan Year after such requirements are satisfied, unless the Employee separates from service before such participation date.

(C)	2001 Markley Actuarial Services, Inc.

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN


HOWEVER, different entry dates will apply (select g. OR h. and/or i.):

g.	x	N/A. The options elected in a.-f. above apply for all purposes of the Plan.

h.	o	For purposes of all Employer contributions (other than Elective Deferrals and matching contributions)...

i.	o	For purposes of Employer matching contributions...


IF h. OR i. IS SELECTED, the following entry dates apply for such purposes (select one):

j.	o	the first day of the month coinciding with or next following the date on which such requirements are satisfied.

k.	o	the first day of the Plan Year quarter coinciding with or next following the date on which such requirements are satisfied.

l.	o	the first day of the Plan Year in which such requirements are satisfied.
m.	o	the first day of the Plan Year in which such requirements are satisfied, if such requirements are satisfied in the first 6 months of the Plan Year, or as of the first day of the next succeeding Plan Year if such requirements are satisfied in the last 6 months of the Plan Year.
n.	o	the earlier of the first day of the seventh month or the first day of the Plan Year coinciding with or next following the date on which such requirements are satisfied.

o.	o	the first day of the Plan Year next following the date on which such requirements are satisfied. (Eligibility must be 1/2 (or 1 1/2 if 100% immediate Vesting is selected) Year of Service (or Period of Service) or less and age must be 20 1/2 or less.)

p.	o	other: ______________________________________________________, provided that an Eligible Employee who has satisfied the maximum age (21) and service requirements (one (1) Year or Period of Service (or more than one (1) year if full and immediate vesting)) and who is otherwise entitled to participate, shall commence participation no later than the earlier of (a) 6 months after such requirements are satisfied, or (b) the first day of the first Plan Year after such requirements are satisfied, unless the Employee separates from service before such participation date.


SERVICE

17.	RECOGNITION OF SERVICE WITH PREDECESSOR EMPLOYER (Plan Sections 1.57 and 1.85)

	a.	o	No service with a predecessor Employer shall be recognized.

	b.	x	Service with Getty Petroleum Marketing Inc. will be recognized except as follows (select 1. or all that apply of 2. through 4.):

			1.	x	N/A, no limitations.

			2.	o	service will only be recognized for vesting purposes.

			3.	o	service will only be recognized for eligibility purposes.

			4.	o	service prior to ______________ will not be recognized.

			NOTE:		If the predecessor Employer maintained this qualified Plan, then Years of Service (and/or Periods of Service) with such predecessor Employer shall be recognized pursuant to Plan Sections 1.57 and 1.85 and b.1. will apply.

18.	SERVICE CREDITING METHOD (Plan Sections 1.57 and 1.85)

	NOTE:		If no elections are made in this Section, then the Hours of Service Method will be used and the provisions set forth in the definition of Year of Service in Plan Section 1.85 will apply.

	ELAPSED TIME METHOD shall be used for the following purposes (select all that apply):

	a.	x	N/A. Plan only uses the Hours of Service Method.

	b.	o	all purposes. (If selected, skip to Question 19.)

	c.	o	eligibility to participate.

	d.	o	vesting.

	e.	o	sharing in allocations or contributions.

	HOURS OF SERVICE METHOD shall be used for the following purposes (select all that apply):

	f.	o	N/A. Plan only uses the Elapsed Time Method.

	g.	x	eligibility to participate in the Plan. The eligibility computation period after the initial eligibility computation period shall...

			1.	x	shift to the Plan Year after the initial computation period.

			2.	o	be based on the date an Employee first performs an Hour of Service (initial computation period) and subsequent computation periods shall be based on each anniversary date thereof.

	h.	x	vesting. The vesting computation period shall be...

			1.	x	the Plan Year.

			2.	o	the date an Employee first performs an Hour of Service and each anniversary thereof.

	i.	x	sharing in allocations or contributions (the computation period shall be the Plan Year).

(C)	2001 Markley Actuarial Services, Inc.

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN


	AND, IF THE HOURS OF SERVICE METHOD IS BEING USED, the Hours of Service will be determined on the basis of the method selected below. Only one method may be selected. The method selected below will be applied to (select j. or k.):

	j.	x	all Employees.

	k.	o	salaried Employees only (for hourly Employees, actual Hours of Service will be used).

	ON THE BASIS OF:

	l.	o	actual hours for which an Employee is paid or entitled to payment.

	m.	o	days worked. An Employee will be credited with ten (10) Hours of Service if under the Plan such Employee would be credited with at least one (1) Hour of Service during the day.

	n.	o	weeks worked. An Employee will be credited with forty-five (45) Hours of Service if under the Plan such Employee would be credited with at least one (1) Hour of Service during the week.

	o.	o	semi-monthly payroll periods worked. An Employee will be credited with ninety-five (95) Hours of Service if under the Plan such Employee would be credited with at least one (1) Hour of Service during the semi-monthly payroll period.

	p.	x	months worked. An Employee will be credited with one hundred ninety (190) Hours of Service if under the Plan such Employee would be credited with at least one (1) Hour of Service during the month.

	AND, a Year of Service means the applicable computation period during which an Employee has completed at least:

	q.	x	1000 (may not be more than 1,000) Hours of Service (if left blank, the Plan will use 1,000 Hours of Service).

VESTING

19.	VESTING OF PARTICIPANT’S INTEREST (Plan Section 6.4(b)) Vesting for Employer Contributions (except as otherwise elected in j. - q. below for matching contributions). The vesting schedule, based on a Participant’s Years of Service (or Periods of Service if the Elapsed Time Method is elected), shall be as follows:


	a.	o	100% upon entering Plan. (Required if eligibility requirement is greater than one (1) Year of Service or Period of Service.)


b.	o	3 Year Cliff:			c.	o	5 Year Cliff:
		0-2 years	0	%			0-4 years	0	%
		3 years	100	%			5 years	100	%

d.	x	6 Year Graded:			e.	o	4 Year Graded:
		0-1 year	0	%			1 year	25	%
		2 years	20	%			2 years	50	%
		3 years	40	%			3 years	75	%
		4 years	60	%			4 years	100	%
		5 years	80	%
		6 years	100	%

f.	o	5 Year Graded:			g.	o	7 Year Graded:
		1 year	20	%			0-2 years	0	%
		2 years	40	%			3 years	20	%
		3 years	60	%			4 years	40	%
		4 years	80	%			5 years	60	%
		5 years	100	%			6 years	80	%
							7 years	100	%
h.	o	Other - Must be at least as liberal as either c. or g. above.


	Service	Percentage
	_____	_____
	_____	_____
	_____	_____
	_____	_____
	_____	_____
	_____	_____
	_____	_____


(C)	2001 Markley Actuarial Services, Inc.

NON-STANDARDIZED 401(K) PROFIT SHARING PLAN


VESTING FOR EMPLOYER MATCHING CONTRIBUTIONS

The vesting schedule for Employer matching contributions, based on a Participant’s Years of Service (or Periods of Service if the Elapsed Time Method is elected) shall be as follows:

i.	x	N/A. There are no matching contributions subject to a vesting schedule OR the schedule in a.-h. above shall also apply to matching contributions.

j.	o	100% upon entering Plan. (Required if eligibility requirement is greater than one (1) Year of Service or Period of Service.)

k.	o	3 Year Cliff

l.	o	5 Year Cliff

m.	o	6 Year Graded

n.	o	4 Year Graded

o.	o	5 Year Graded

p.	o	7 Year Graded

q.	o	Other - Must be at least as liberal as either l. or p. above.


	Service	Percentage
	______	______
	______	______
	______	______
	______	______
	______	______
	______	______
	______	______


20.	FOR AMENDED PLANS (Plan Section 5.9(g))

	If the vesting schedule has been amended to a less favorable schedule, enter the pre-amended schedule below:

	a.	x	Vesting schedule has not been amended, amended schedule is more favorable in all years or prior schedule was immediate 100% vesting.

	b.	o	Pre-amended schedule:


	Service	Percentage
	______	______
	______	______
	______	______
	______	______
	______	______
	______	______
	______	______


(C)	2001 Markley Actuarial Services, Inc.

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


21.	TOP HEAVY VESTING (Plan Section 6.4(c))

	If this Plan becomes a Top Heavy Plan, the following vesting schedule, based on number of Years of Service (or Periods of Service if the Elapsed Time Method is elected), shall apply and shall be treated as a Plan amendment pursuant to this Plan. Once effective, this schedule shall also apply to any contributions made before the Plan became a Top Heavy Plan and shall continue to apply if the Plan ceases to be a Top Heavy Plan unless an amendment is made to change the vesting schedule.

	a.	x	N/A (the regular vesting schedule already satisfies one of the minimum top heavy schedules).

	b.	o	6 Year Graded:
			0-1 year	0	%
			2 years	20	%
			3 years	40	%
			4 years	60	%
			5 years	80	%
			6 years	100	%

	c.	o	3 Year Cliff:
			0-2 years	0	%
			3 years	100	%

	d.	o	Other - Must be at least as liberal as either b. or c. above.


	Service	Percentage
	______	______
	______	______
	______	______
	______	______
	______	______
	______	______
	______	______


	NOTE:		This Section does not apply to the account balances of any Participant who does not have an Hour of Service after the Plan has initially become top heavy. Such Participant’s Account balance attributable to Employer contributions and Forfeitures will be determined without regard to this Section.

22.	EXCLUDED VESTING SERVICE

	a.	x	No exclusions.

	b.	o	Service prior to the Effective Date of the Plan or a predecessor plan.

	c.	o	Service prior to the time an Employee has attained age 18.

23.	VESTING FOR DEATH AND TOTAL AND PERMANENT DISABILITY

	Regardless of the vesting schedule, Participants shall become fully Vested upon (select a. or all that apply of b. and c.)

	a.	o	N/A. Apply vesting schedule, or all contributions to the Plan are fully Vested.

	b.	x	Death.

	c.	x	Total and Permanent Disability.

24.	NORMAL RETIREMENT AGE (“NRA”) (Plan Section 1.45) means the:

	a.	x	date of a Participant’s 65th birthday (not to exceed 65th).

	b.	o	later of a Participant’s ______ birthday (not to exceed 65th) or the ______ (not to exceed 5th) anniversary of the first day of the Plan Year in which participation in the Plan commenced.

25.	NORMAL RETIREMENT DATE (Plan Section 1.46) means the:

	a.	o	Participant’s “NRA”.

	OR (select one)

	b.	x	first day of the month coinciding with or next following the Participant’s “NRA”.

	c.	o	first day of the month nearest the Participant’s “NRA”.

	d.	o	Anniversary Date coinciding with or next following the Participant’s “NRA”.

	e.	o	Anniversary Date nearest the Participant’s “NRA”.

26.	EARLY RETIREMENT DATE (Plan Section 1.15) means the:

	a.	o	No Early Retirement provision provided.

	b.	o	date on which a Participant...

	c.	x	first day of the month coinciding with or next following the date on which a Participant...

	d.	o	Anniversary Date coinciding with or next following the date on which a Participant...


(C)	2002	Markley Actuarial Services, Inc.

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


	AND, if b., c., or d. is selected...

	e.	o	attains age.

	f.	x	attains age 55 and completes at least 6 Years of Service (or Periods of Service) for vesting purposes.

	AND, if b., c. or d. is selected, shall a Participant become fully Vested upon attainment of the Early Retirement Date?

	g.	x	Yes

	h.	o	No

COMPENSATION

27.	COMPENSATION (Plan Section 1.11) with respect to any Participant means:

	a.	x	Wages, tips and other compensation on Form W-2.

	b.	o	Section 3401(a) wages (wages for withholding purposes).

	c.	o	415 safe-harbor compensation.

	COMPENSATION shall be based on the following determination period:

	d.	x	the Plan Year.

	e.	o	the Fiscal Year coinciding with or ending within the Plan Year.

	f.	o	the calendar year coinciding with or ending within the Plan Year.

	NOTE:		The Limitation Year for Code Section 415 purposes shall be the same as the determination period for Compensation unless an alternative period is specified: ___________ (must be a consecutive twelve month period).

	ADJUSTMENTS TO COMPENSATION

	g.	o	N/A. No adjustments.

	h.	x	Compensation shall be adjusted by: (select all that apply)

			1.	x	including compensation which is not currently includible in the Participant’s gross income by reason of the application of Code Sections 125 (cafeteria plan), 132(f)(4) (qualified transportation fringe), 402(e)(3) (401(k) plan), 402(h)(1)(B) (simplified employee pension plan), 414(h) (employer pickup contributions under a governmental plan), 403(b) (tax sheltered annuity) or 457(b) (eligible deferred compensation plan).

			2.	x	excluding reimbursements or other expense allowances, fringe benefits (cash or non-cash), moving expenses, deferred compensation (other than deferrals specified in 1. above) and welfare benefits.

			3.	o	excluding Compensation paid during the determination period while not a Participant in the component of the Plan for which the definition is being used.

			4.	o	excluding overtime.

			5.	o	excluding bonuses.

			6.	o	excluding commissions.

			7.	x	other: excluding reportable income from the sale, exchange or other disposition of stock acquired under a stock option plan.

			NOTE:		Options 4., 5., 6. or 7. may not be selected if an integrated allocation formula is selected (i.e., if 33.f. is selected). In addition, if 4., 5., 6., or 7. is selected, the definition of Compensation could violate the nondiscrimination rules.

	HOWEVER, FOR SALARY DEFERRAL AND MATCHING PURPOSES Compensation shall be adjusted by (for such purposes, the Plan automatically includes Elective Deferrals and other amounts in h.1. above):

	i.	o	N/A. No adjustments or same adjustments as in above.

	j.	x	Compensation shall be adjusted by: (select all that apply)

			1.	x	excluding reimbursements or other expense allowances, fringe benefits (cash or non-cash), moving expenses, deferred compensation (other than deferrals specified in h.1. above) and welfare benefits.

			2.	o	excluding Compensation paid during the determination period while not a Participant in the component of the Plan for which the definition is being used.

			3.	o	excluding overtime

			4.	x	excluding bonuses

			5.	o	excluding commissions

			6.	x	other: excluding reportable income from the sale, exchange or other disposition of stock acquired under a stock option plan.


(C)	2001 Markley Actuarial Services, Inc.

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN

CONTRIBUTIONS AND ALLOCATIONS


28.	SALARY REDUCTION ARRANGEMENT - ELECTIVE DEFERRALS (Plan Section 12.2)
	Each Participant may elect to have Compensation deferred by:

	a.	o	%____.

	b.	x	up to 50%.

	c.	o	from ___% to ___%.

	d.	o	up to the maximum percentage allowable not to exceed the limits of Code Sections 401(k), 402(g), 404 and 415.

	AND, Participants who are Highly Compensated Employees determined as of the beginning of a Plan Year may only elect to defer Compensation by:

	e.	x	Same limits as specified above.

	f.	o	The percentage equal to the deferral limit in effect under Code Section 402(g)(3) for the calendar year that begins with or within the Plan Year divided by the annual compensation limit in effect for the Plan Year under Code Section 401(a)(17).

	MAY PARTICIPANTS make a special salary deferral election with respect to bonuses?

	g.	o	No.

	h.	x	Yes, a Participant may elect to defer up to 50% of any bonus.

	PARTICIPANTS MAY commence salary deferrals on the effective date of participation and on January 1 (must be at least once each calendar year).

			Participants may modify salary deferral elections:

			1.	x	As of each payroll period

			2.	o	On the first day of the month

			3.	o	On the first day of each Plan Year quarter

			4.	o	On the first day of the Plan Year or the first day of the 7th month of the Plan Year

			5.	o	Other: (must be at least once each calendar year)

	AUTOMATIC ELECTION: Shall Participants who do not affirmatively elect to receive cash or have a specified amount contributed to the Plan automatically have Compensation deferred?

	i.	x	No.

	j.	o	Yes, by ____% of Compensation.

	SHALL THERE BE a special effective date for the salary deferral component of the Plan?

	k.	x	No.

	l.	o	Yes, the effective date of the salary deferral component of the Plan is _______ (enter month day, year).

29.	SIMPLE 401(k) PLAN ELECTION (Plan Section 13.1) Shall the simple 401(k) provisions of Article XIII apply?

	a.	x	No. The simple 401(k) provisions will not apply.

	b.	o	Yes. The simple 401(k) provisions will apply.

30.	401(k) SAFE HARBOR PROVISIONS (Plan Section 12.8) Will the ADP and/or ACP test safe harbor provisions be used? (select a., b. or c.)

	a.	x	No. (If selected, skip to Question 31.)

	b.	o	Yes, but only the ADP (and NOT the ACP) Test Safe Harbor
	provisions will be used.

	c.	o	Yes, both the ADP and ACP Test Safe Harbor provisions will be used.

			IF c. is selected, does the Plan permit matching contributions in addition to any safe harbor contributions elected in d. or e. below?

			1.	o	No or N/A. Any matching contributions, other than any Safe Harbor Matching Contributions elected in d. below, will be suspended in any Plan Year in which the safe harbor provisions are used.

			2.	o	Yes, the Employer may make matching contributions in addition to any Safe Harbor Matching contributions elected in d. below. (If elected, complete the provisions of the Adoption Agreement relating to matching contributions (i.e., Questions 31. and 32.) that will apply in addition to any elections made in d. below. NOTE: Regardless of any election made in Question31., the Plan automatically provides that only Elective Deferrals up to 6% of Compensation are taken into account in applying the match set forth in that Question and that the maximum discretionary matching contribution that may be made on behalf of any Participant is 4% of Compensation.)

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN

THE EMPLOYER WILL MAKE THE FOLLOWING ADP TEST SAFE HARBOR CONTRIBUTION FOR THE PLAN YEAR:


NOTE:	The ACP Test Safe Harbor is automatically satisfied if the only matching contribution made to the Plan is either (1) a Basic Matching Contribution or (2) an Enhanced Matching Contribution that does not provide a match on Elective Deferrals in excess of 6% of Compensation.


	d.	o	Safe Harbor Matching Contribution (select 1. or 2. AND 3.)

			1.	o	Basic Matching Contribution. The Employer will make Matching Contributions to the account of each “Eligible Participant” in an amount equal to the sum of 100% of the amount of the Participant’s Elective Deferrals that do not exceed 3% of the Participant’s Compensation, plus 50% of the amount of the Participant’s Elective Deferrals that exceed 3% of the Participant’s Compensation but do not exceed 5% of the Participant’s Compensation.

			2.	o	Enhanced Matching Contribution. The Employer will make Matching Contributions to the account of each “Eligible Participant” in an amount equal to the sum of:

					a.	o	___% (may not be less than 100%) of the Participant’s Elective Deferrals that do not exceed ___% (if over 6% or if left blank, the ACP test will still apply) of the Participant’s Compensation, plus

					b.	o	___% of the Participant’s Elective Deferrals that exceed ___% of the Participant’s Compensation but do not exceed ___% (if over 6% or if left blank, the ACP test will still apply) of the Participant’s Compensation.

					NOTE:		a. and b. must be completed so that, at any rate of Elective Deferrals, the matching contribution is at least equal to the matching contribution receivable if the Employer were making Basic Matching Contributions, but the rate of match cannot increase as deferrals increase. For example, if a. is completed to provide a match equal to 100% of deferrals up to 4% of Compensation, then b. need not be completed.

			3.	o	The safe harbor matching contribution will be determined on the following basis (and Compensation for such purpose will be based on the applicable period):

					a.	o	the entire Plan Year.

					b.	o	each payroll period.

					c.	o	all payroll periods ending with or within each month.

					d.	o	all payroll periods ending with or within the Plan Year quarter.

	e.	o	Nonelective Safe Harbor Contributions (select one)

			1.	o	The Employer will make a Safe Harbor Nonelective Contribution to the account of each “Eligible Participant” in an amount equal to ___% (may not be less than 3%) of the Employee’s Compensation for the Plan Year.

			2.	o	The Employer will make a Safe Harbor Nonelective Contribution to another defined contribution plan maintained by the Employer (specify the name of the other plan): ___.

	FOR PURPOSES OF THE ADP Test Safe Harbor contribution, the term “Eligible Participant” means any Participant who is eligible to make Elective Deferrals with the following exclusions:

	f.	o	Highly Compensated Employees.

	g.	o	Employees who have not satisfied the greatest minimum age and service conditions permitted under Code Section 410(a).

	h.	o	Other: ____________________________________________________________
			(must be a category that could be excluded under the permissive or mandatory disaggregation rules of Regulations 1.401(k)-1(b)(3) and 1.401(m)-1(b)(3)).

SPECIAL EFFECTIVE DATE OF ADP AND ACP TEST SAFE HARBOR PROVISIONS

	i.	o	N/A. The safe harbor provisions are effective as of the later of the Effective Date of this Plan or, if this is an amendment or restatement, the effective date of the amendment or restatement.

	j.	o	The ADP and ACP Test Safe Harbor provisions are effective for the Plan Year beginning:
			__________________________________ (enter the first day of the Plan Year for which the provisions are (or, for GUST updates, were) effective and, if necessary, enter any other special effective dates that apply with respect to the provisions).

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


31.	FORMULA FOR DETERMINING EMPLOYER MATCHING CONTRIBUTIONS (Plan Section 12.1(a)(2))

	NOTE:		Regardless of any election below, if the ACP test safe harbor is being used (i.e., Question 30.c. is selected), then the Plan automatically provides that only Elective Deferrals up to 6% of Compensation are taken into account in applying the match set forth below and that the maximum discretionary matching contribution that may be made on behalf of any Participant is 4% of Compensation.

	a.	o	N/A. There will not be any matching contributions (Skip to Question 33).

	b.	x	The Employer... (select 1. or 2.)

			1.	o	may make matching contributions equal to a discretionary percentage, to be determined by the Employer, of the Participant’s Elective Deferrals.

			2.	x	will make matching contributions equal to 50% (e.g., 50) of the Participant’s Elective Deferrals, plus:

			a.	x	N/A.

			b.	o	an additional discretionary percentage, to be determined by the Employer.

			AND, in determining the matching contribution above, only Elective Deferrals up to the percentage or dollar amount specified below will be matched: (select 3. and/or 4. OR 5.)

			3.	x	6% of a Participant’s Compensation.

			4.	o	$___.

			5.	o	a discretionary percentage of a Participant’s Compensation or a discretionary dollar amount, the percentage or dollar amount to be determined by the Employer on a uniform basis to all Participants.

	c.	o	The Employer may make matching contributions equal to a discretionary percentage, to be determined by the Employer, of each tier, to be determined by the Employer, of the Participant’s Elective Deferrals.

	d.	o	The Employer will make matching contributions equal to the sum of ___ % of the portion of the Participant’s Elective Deferrals which do not exceed ___ % of the Participant’s Compensation or $___ plus ___ % of the portion of the Participant’s Elective Deferrals which exceed ___ % of the Participant’s Compensation or $ ___, but does not exceed ___ % of the Participant’s Compensation or $ ___.

	NOTE:		If c. or d. above is elected, the Plan may violate the Code Section 401(a)(4) nondiscrimination requirements if the rate of matching contributions increases as a Participant’s Elective Deferrals or Years of Service (or Periods of Service) increase.

	PERIOD OF DETERMINING MATCHING CONTRIBUTIONS

	Matching contributions will be determined on the following basis (and any Compensation or dollar limitation used in determining the match will be based on the applicable period):

	e.	x	the entire Plan Year.

	f.	o	each payroll period.

	g.	o	all payroll periods ending within each month.

	h.	o	all payroll periods ending with or within the Plan Year quarter.

	THE MATCHING CONTRIBUTION MADE ON BEHALF OF ANY PARTICIPANT for any Plan Year will not exceed:

	i.	x	N/A.

	j.	o	$___.

	MATCHING CONTRIBUTIONS WILL BE MADE ON BEHALF OF:

	k.	x	all Participants.

	l.	o	only Non-Highly Compensated Employees.

	SHALL THE MATCHING CONTRIBUTIONS BE QUALIFIED MATCHING CONTRIBUTIONS?

	m.	o	Yes. If elected, ALL matching contributions will be fully Vested and will be subject to restrictions on withdrawals. In addition, Qualified Matching Contributions may be used in either the ADP or ACP test.

	n.	x	No.

32.	ONLY PARTICIPANTS WHO SATISFY THE FOLLOWING CONDITIONS WILL BE ELIGIBLE TO SHARE IN THE ALLOCATION OF MATCHING CONTRIBUTIONS:

	REQUIREMENTS FOR PARTICIPANTS WHO ARE ACTIVELY EMPLOYED AT THE END OF THE PLAN YEAR.

	a.	o	N/A.

	b.	x	No service requirement.

	c.	o	A Participant must complete a Year of Service (or Period of Service if the Elapsed Time Method is elected). (Could cause Plan to violate coverage requirements under Code Section 410(b).)

	d.	o	A Participant must complete at least (may not be more than 1,000) Hours of Service during the Plan Year. (Could cause the Plan to violate coverage requirements under Code Section410(b).)

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


	REQUIREMENTS FOR PARTICIPANTS WHO ARE NOT ACTIVELY EMPLOYED AT THE END OF THE PLAN YEAR (except as otherwise provided in i. through k. below).

	e.	o	A Participant must complete more than ___ Hours of Service (not more than 500) (or ___ months of service (not more than three (3)) if the Elapsed Time Method is elected).

	f.	o	A Participant must complete a Year of Service (or Period of Service if the Elapsed Time Method is elected). (Could cause the Plan to violate coverage requirements under Code Section 410(b).)

	g.	o	Participants will NOT share in such allocations, regardless of service. (Could cause the Plan to violate coverage requirements under Code Section 410(b).)

	h.	x	Participants will share in such allocations, regardless of service.


	PARTICIPANTS WHO ARE NOT ACTIVELY EMPLOYED AT THE END OF THE PLAN YEAR due to the following shall be eligible to share in the allocation of matching contributions regardless of the above conditions (select all that apply):

	i.	x	Death.

	j.	x	Total and Permanent Disability.

	k.	x	Early or Normal Retirement.

	AND, if 32.c., d., f., or g. is selected, shall the 410(b) ratio percentage fail safe provisions apply (Plan Section 12.3(f))?

	l.	x	No or N/A.

	m.	o	Yes (If selected, the Plan must satisfy the ratio percentage test of Code Section 410(b).)


33.	FORMULA FOR DETERMINING EMPLOYER’S PROFIT SHARING CONTRIBUTION (Plan Section 12.1(a)(3)) (d. may be selected in addition to b. or c.)

	a.	o	N/A. No Employer Profit Sharing Contributions may be made (other than top heavy minimum contributions) (Skip to Question 34.)

	b.	x	Discretionary, to be determined by the Employer, not limited to current or accumulated Net Profits.

	c.	o	Discretionary, to be determined by the Employer, out of current or accumulated Net Profits.

	d.	o	Prevailing Wage Contribution. The Employer will make a Prevailing Wage Contribution on behalf of each Participant who performs services subject to the Service Contract Act, Davis-Bacon Act or similar Federal, State, or Municipal Prevailing Wage statutes. The Prevailing Wage Contribution shall be an amount equal to the balance of the fringe benefit payment for health and welfare for each Participant (after deducting the cost of cash differential payments for the Participant) based on the hourly contribution rate for the Participant’s employment classification, as designated on Schedule A as attached to this Adoption Agreement. Notwithstanding anything in the Plan to the contrary, the Prevailing Wage Contribution shall be fully Vested. Furthermore, the Prevailing Wage Contribution shall not be subject to any age or service requirements set forth in Question 15. nor to any service or employment conditions set forth in Question 35.

			AND, if d. is selected, is the Prevailing Wage Contribution considered a Qualified Non-Elective Contribution?

			1.	o	Yes.

			2.	o	No.

			AND, if d. is selected, shall the amounts allocated on behalf of a Participant for a Plan Year pursuant to e. or f. below be reduced (offset) by the Prevailing Wage Contribution made on behalf of such Participant for the Plan Year under this Plan?

			3.	o	No (If selected, then the Prevailing Wage Contribution will be added to amounts allocated pursuant to e. or f. below.)

			4.	o	Yes.

	CONTRIBUTION ALLOCATIONS

	If b. or c. above is selected, the Employer’s discretionary profit sharing contribution for a Plan Year will be allocated as follows:

	e.	o	NON-INTEGRATED ALLOCATION

			1.	o	In the same ratio as each Participant’s Compensation bears to the total of such Compensation of all Participants.

			2.	o	In the same dollar amount to all Participants (per capita).

			3.	o	In the same dollar amount per Hour of Service completed by each Participant.

			4.	o	In the same proportion that each Participant’s points bears to the total of such points of all Participants. A Participant’s points with respect to any Plan Year shall be computed as follows (select all that apply):

					a.	o	___ point (s) shall be allocated for each Year of Service (or Period of Service if the Elapsed Time Method is elected). However, the maximum Years of Service (or Periods

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


							of Service) taken into account shall not exceed____ (leave blank if no limit on service applies).

					b.	o	____ point (s) shall be allocated for each full $___ (may not exceed $200) of Compensation.

					c.	o	____ point (s) shall be allocated for each year of age as of the end of the Plan Year.

	f.	x	INTEGRATED ALLOCATION
			In accordance with Plan Section 4.3(b)(2) based on a Participant’s Compensation in excess of:

			1.	x	The Taxable Wage Base.

			2.	o	____ % (not to exceed 100%) of the Taxable Wage Base. (See Note below)

			3.	o	80% of the Taxable Wage Base plus $1.00.

			4.	o	$____ (not greater than the Taxable Wage Base). (See Note below)

			NOTE:		The integration percentage of 5.7% shall be reduced to:

					1.	4.3% if 2. or 4. above is more than 20% and less than or equal to 80% of the Taxable Wage Base.

					2.	5.4% if 3. is elected or if 2. or 4. above is more than 80% of the Taxable Wage Base.

34.	QUALIFIED NON-ELECTIVE CONTRIBUTIONS (Plan Section 12.1(a)(4))

	NOTE: Regardless of any election made in this Question, the Plan automatically permits Qualified Non-Elective Contributions to correct a failed ADP or ACP test.

	a.	x	N/A. There will be no additional Qualified Non-Elective Contributions except as otherwise provided in the Plan.

	b.	o	The Employer will make a Qualified Non-Elective Contribution equal to ___ % of the total Compensation of those Participants eligible to share in the allocations.

	c.	o	The Employer may make a Qualified Non-Elective Contribution in an amount to be determined by the Employer, to be allocated in proportion to the Compensation of those Participants eligible to share in the allocations.

	d.	o	The Employer may make a Qualified Non-Elective Contribution in an amount to be determined by the Employer, to be allocated equally to all Participants eligible to share in the allocations (per capita).

	AND, if b., c., or d. is selected, the Qualified Non-Elective Contributions above will be made on behalf of:

	e.	o	all Participants.

	f.	o	only Non-Highly Compensated Employees.

35.	REQUIREMENTS TO SHARE IN ALLOCATIONS OF EMPLOYER DISCRETIONARY PROFIT SHARING CONTRIBUTION, QUALIFIED NON-ELECTIVE CONTRIBUTIONS (other than Qualified Non-Elective Contributions under Plan Sections 12.5(c) and 12.7(g)) AND FORFEITURES

	a.	o	N/A. Plan does not permit such contributions.

	b.	x	Requirements for Participants who are actively employed at the end of the Plan Year.

			1.	o	No service requirement.

			2.	o	A Participant must complete a Year of Service (or Period of Service if the Elapsed Time Method is elected). (Could cause Plan to violate coverage requirements under Code Section 410(b).)

			3.	x	A Participant must complete at least 1000 (may not be more than 1,000) Hours of Service during the Plan Year. (Could cause the Plan to violate coverage requirements under Code Section 410(b).)

	REQUIREMENTS FOR PARTICIPANTS WHO ARE NOT ACTIVELY EMPLOYED AT THE END OF THE PLAN YEAR (except as otherwise provided in g. through i. below).

	c.	o	A Participant must complete more than ___ Hours of Service (not than 500)(or___ months of service (not more than three (3)) if the more Elapsed Time Method is elected).

	d.	o	A Participant must complete a Year of Service (or Period of Service if the Elapsed Time Method is elected). (Could cause Plan to violate coverage requirements under Code Section 410(b).)

	e.	x	Participants will NOT share in such allocations, regardless of service. (Could cause Plan to violate coverage requirements under Code Section 410(b).)

	f.	o	Participants will share in such allocations, regardless of service.

	PARTICIPANTS WHO ARE NOT ACTIVELY EMPLOYED AT THE END OF THE PLAN YEAR due to the following will be eligible to share in the allocations regardless of the above conditions (select all that apply):

	g.	x	Death.

	h.	x	Total and Permanent Disability.

	i.	x	Early or Normal Retirement.

	AND, if 35.b.2, b.3, d. or e. is selected, shall the 410(b) ratio percentage fail safe provisions apply (Plan Section 12.3(f))?

	j.	x	No or N/A.

	k.	o	Yes (If selected, the Plan must satisfy the ratio percentage test of Code Section 410(b)).

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


36.	FORFEITURES (Plan Sections 1.27 and 4.3(e))

	Except as provided in Plan Section 1.27, a Forfeiture will occur (if no election is made, a. will apply):

	a.	x	as of the earlier of (1) the last day of the Plan Year in which the Former Participant incurs five (5) consecutive 1-Year Breaks in Service, or (2) the distribution of the entire Vested portion of the Participant’s Account.

	b.	o	as of the last day of the Plan Year in which the Former Participant incurs five (5) consecutive 1-Year Breaks in Service.

	Will Forfeitures first be used to pay any administrative expenses?

	c.	x	Yes.

	d.	o	No.

	AND, EXCEPT as otherwise provided below with respect to Forfeitures attributable to matching contributions, any remaining Forfeitures will be...

	e.	o	added to any Employer discretionary contribution.

	f.	x	used to reduce any Employer contribution.

	g.	o	added to any Employer matching contribution and allocated as an additional matching contribution.

	h.	o	allocated to all Participants eligible to share in the allocations in the same proportion that each Participant’s Compensation for the Plan Year bears to the Compensation of all Participants for such year.

	FORFEITURES OF MATCHING CONTRIBUTIONS WILL BE...

	i.	o	N/A. Same as above or no matching contributions.

	j.	x	used to reduce the Employer’s matching contribution.

	k.	o	added to any Employer matching contribution and allocated as an additional matching contribution.

	l.	o	added to any Employer discretionary profit sharing contribution.

	m.	o	allocated to all Participants eligible to share in the matching allocations (regardless of whether a Participant elected any salary reductions) in proportion to each such Participant’s Compensation for the year.

	n.	o	allocated to all Non-Highly Compensated Employees eligible to share in the matching allocations (regardless of whether a Participant elected any salary reductions) in proportion to each such Participant’s Compensation for the year.

37.	ALLOCATIONS OF EARNINGS (Plan Section 4.3(c))

	Allocations of earnings with respect to amounts which are not subject to Participant directed investments and which are contributed to the Plan after the previous Valuation Date will be determined...

	a.	x	N/A. All assets in the Plan are subject to Participant investment direction.

	b.	o	by using a weighted average based on the amount of time that has passed between the date a contribution or distribution was made and the date of the prior Valuation Date.

	c.	o	by treating one-half of all such contributions as being a part of the Participant’s nonsegregated account balance as of the previous Valuation Date.

	d.	o	by using the method specified in Plan Section 4.3(c) (balance forward method).

	e.	o	other: ____ (must be a definite predetermined formula that is not based on Compensation and that satisfies the nondiscrimination requirements of Regulation 1.401(a)(4)-4 and is applied uniformly to all Participants).

38.	LIMITATIONS ON ALLOCATIONS (Plan Section 4.4)

	If any Participant is covered under another qualified defined contribution plan maintained by the Employer, other than a Master or Prototype Plan, or if the Employer maintains a welfare benefit fund, as defined in Code Section 419(e), or an individual medical account, as defined in Code Section 415(l)(2), under which amounts are treated as Annual Additions with respect to any Participant in this Plan:

	a.	x	N/A. The Employer does not maintain another qualified defined contribution plan.

	b.	o	The provisions of Plan Section 4.4(b) will apply as if the other plan were a Master or Prototype Plan.

	c.	o	Specify the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any Excess Amounts, in a manner that precludes Employer discretion:

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN



DISTRIBUTIONS

39.	FORM OF DISTRIBUTIONS (Plan Sections 6.5 and 6.6)

	Distributions under the Plan may be made in (select all that apply)...

	a.	x	lump-sums.

	b.	x	substantially equal installments.

	c.	o	partial withdrawals provided the minimum withdrawal is $____.

	AND, pursuant to Plan Section 6.12,

	d.	x	no annuities are allowed (Plan Section 6.12(b) will apply and the joint and survivor rules of Code Sections 401(a)(11) and 417 will not apply to the Plan).

			AND, if this is an amendment that is eliminating annuities, then an annuity form of payment is not available with respect to distributions that have an Annuity Starting Date beginning on or after:

			1.	o	N/A

			2.	x	January 1, 2002 (may not be a retroactive date), except that regardless of the date entered, the amendment will not be effective prior to the time set forth in Plan Section 8.1(e).

	e.	o	annuities are allowed as the normal form of distribution (Plan Section 6.12 will not apply and the joint and survivor rules of Code Sections 401(a)(11) and 417 will automatically apply). If elected, the Pre-Retirement Survivor Annuity (minimum spouse’s death benefit) will be equal to:

			1.	o	100% of Participant’s interest in the Plan.

			2.	o	50% of Participant’s interest in the Plan.

			3.	o	____ % (may not be less than 50%) of a Participant’s interest in the Plan.

			AND, the normal form of the Qualified Joint and Survivor Annuity will be a joint and 50% survivor annuity unless otherwise elected below:

			4.	o	N/A.

			5.	o	Joint and 100% survivor annuity.

			6.	o	Joint and 75% survivor annuity.

			7.		Joint and 66 2/3% survivor annuity.

	NOTE:		If only a portion of the Plan assets may be distributed in an annuity form of payment, then select d. AND e. and the assets subject to the joint and survivor annuity provisions will be those assets attributable to (specify): ____ (e.g., the money purchase pension plan that was merged into this Plan).

	AND, distributions may be made in...

	f.	o	cash only (except for insurance or annuity contracts).

	g.	x	cash or property.

40.	CONDITIONS FOR DISTRIBUTIONS UPON TERMINATION OF EMPLOYMENT

	Distributions upon termination of employment pursuant to Plan Section 6.4 (a) of the Plan will not be made unless the following conditions have been satisfied:

	a.	o	No distributions may be made until a Participant has reached Early or Normal Retirement Date.

	b.	x	Distributions may be made as soon as administratively feasible at the Participant’s election.

	c.	o	The Participant has incurred 1-Year Break(s) in Service (or Period(s) of Severance if the Elapsed Time Method is elected).

	d.	o	Distributions may be made at the Participant’s election as soon as administratively feasible after the Plan Year coincident with or next following termination of employment.

	e.	o	Distributions may be made at the Participant’s election as soon as administratively feasible after the Plan Year quarter coincident with or next following termination of employment.

	f.	o	Distributions may be made at the Participant’s election as soon as administratively feasible after the Valuation Date coincident with or next following termination of employment.

	g.	o	Distributions may be made at the Participant’s election as soon as administratively feasible___ months following termination of employment.

	h.	o	Other: __________________________________________________________________________
			(must be objective conditions which are ascertainable and are not subject to Employer discretion except as otherwise permitted in Regulation 1.411(d)-4 and may not exceed the limits of Code Section 401(a)(14) as set forth in Plan Section 6.7).

41.	INVOLUNTARY DISTRIBUTIONS

	Will involuntary distributions of amounts less than $5,000 be made in accordance with the provisions of Sections 6.4, 6.5 and 6.6?

	a.	x	Yes

	b.	o	No

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


42.	MINIMUM DISTRIBUTION TRANSITIONAL RULES (Plan Section 6.5(e))

	NOTE:	This Section does not apply to (1) a new Plan or (2) an amendment or restatement of an existing Plan that never contained the provisions of Code Section 401(a)(9) as in effect prior to the amendments made by the Small Business Job Protection Act of 1996 (SBJPA).

	The “required beginning date” for a Participant who is not a “five percent (5%) owner” is:

	a.	o	N/A. (This is a new Plan or this Plan has never included the pre-SBJPA provisions.)

	b.	o	April 1st of the calendar year following the year in which the Participant attains age 70 1/2. (The pre-SBJPA rules will continue to apply.)

	c.	x	April 1st of the calendar year following the later of the year in which the Participant attains age 70 1/2 or retires (the post-SBJPA rules), with the following exceptions (select one or both and if no election is made, both will apply effective as of January 1, 1996):

			1.	o	A Participant who was already receiving required minimum distributions under the pre-SBJPA rules as of __ (not earlier than January 1, 1996) may elect to stop receiving distributions and have them recommence in accordance with the post-SBJPA rules. Upon the recommencement of distributions, if the Plan permits annuities as a form of distribution then the following will apply:

					a.	o	N/A. Annuity distributions are not permitted.

					b.	o	Upon the recommencement of distributions, the original Annuity Starting Date will be retained.

					c.	o	Upon the recommencement of distributions, a new Annuity Starting Date is created.

			2.	x	A Participant who had not begun receiving required minimum distributions as of December 31, 1996 (not earlier than January 1, 1996) may elect to defer commencement of distributions until retirement. The option to defer the commencement of distributions (i.e., to elect to receive in-___service distributions upon attainment of age 70 1/2) will apply to all such Participants unless the option below is elected:

					a.	x	N/A.

					b.	o	The in-service distribution option is eliminated with respect to Participants who attain age 70 1/2 in or after the calendar year that begins after the later of (1) December 31, 1998, or (2) the adoption date of the amendment and restatement to bring the Plan into compliance with SBJPA. (This option may only be elected if the amendment to eliminate the in- service distribution is adopted no later than the last day of the remedial amendment period that applies to the Plan for changes under SBJPA.)

43.	DISTRIBUTIONS UPON DEATH (Plan Section 6.6(h)) Distributions upon the death of a Participant prior to receiving any benefits shall...

	a.	x	be made pursuant to the election of the Participant or beneficiary.

	b.	o	begin within 1 year of death for a designated beneficiary and be payable over the life (or over a period not exceeding the life expectancy) of such beneficiary, except that if the beneficiary is the Participant’s spouse, begin prior to December 31st of the year in which the Participant would have attained age 70 1/2.

	c.	o	be made within 5 (or if lesser____ ) years of death for all beneficiaries.

	d.	o	be made within 5 (or if lesser____ ) years of death for all beneficiaries, except that if the beneficiary is the Participant’s spouse, begin prior to December 31st of the year in which the Participant would have attained age 70 1/2 and be payable over the life (or over a period not exceeding the life expectancy) of such surviving spouse.

44.	HARDSHIP DISTRIBUTIONS (Plan Sections 6.11 and/or 12.9)

	a.	o	No hardship distributions are permitted.

	b.	x	Hardship distributions are permitted from the following accounts (select all that apply):

			1.	o	All accounts.

			2.	x	Participant’s Elective Deferral Account.

			3.	o	Participant’s Account attributable to Employer matching contributions.

			4.	o	Participant’s Account attributable to Employer profit sharing contributions.

			5.	x	Participant’s Rollover Account.

			6.	o	Participant’s Transfer Account.

			7.	o	Participant’s Voluntary Contribution Account.

	NOTE:		Distributions from a Participant’s Elective Deferral Account are limited to the portion of such account attributable to such Participant’s Elective Deferrals (and earnings attributable thereto up to December 31, 1988). Hardship distributions are not permitted from a Participant’s Qualified Non-Elective Account (including any 401(k) Safe Harbor Contributions) or Qualified Matching Contribution Account.

	AND, shall the safe harbor hardship rules of Plan Section 12.9 apply to distributions made from all accounts? (Note: The safe harbor hardship rules automatically apply to hardship distributions of Elective Deferrals.)

	c.	o	No or N/A. The provisions of Plan Section 6.11 apply to hardship distributions from all accounts other than a Participant’s Elective Deferral Account.

	d.	x	Yes. The provisions of Plan Section 12.9 apply to all hardship distributions.

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


	AND, are distributions restricted to those accounts in which a Participant is fully Vested?

	e.	x	Yes, distributions may only be made from accounts which are fully Vested.

	f.	o	No. (If elected, the fraction at Plan Section 6.5(h) shall apply in determining vesting of the portion of the account balance not withdrawn).

	AND, the minimum hardship distribution shall be...

	g.	o	N/A. There is no minimum.

	h.	x	$500 (may not exceed $1,000).

45.	IN-SERVICE DISTRIBUTIONS (Plan Section 6.10)

	a.	o	In-service distributions may not be made (except as otherwise elected for Hardship Distributions).

	b.	x	In-service distributions may be made to a Participant who has not separated from service provided any of the following conditions have been satisfied (select all that apply):

		1.	o	the Participant has attained age_____.

		2.	x	the Participant has reached Normal Retirement Age.

		3.	o	the Participant has been a Participant in the Plan for at least ____ years (may not be less than five (5)).

		4.	o	the amounts being distributed have accumulated in the Plan for at least two (2) years.

	AND, in-service distributions are permitted from the following accounts (select all that apply):

	c.	x	All accounts.

	d.	o	Participant’s Elective Deferral Account.

	e.	o	Qualified Matching Contribution Account and portion of Participant’s Account attributable to Employer matching contributions.

	f.	o	Participant’s Account attributable to Employer profit sharing contributions.

	g.	o	Qualified Non-Elective Contribution Account.

	h.	o	Participant’s Rollover Account.

	i.	o	Participant’s Transfer Account.

	j.	o	Participant’s Voluntary Contribution Account.

	NOTE:	Distributions from a Participant’s Elective Deferral Account, Qualified Matching Contribution Account and Qualified Non-Elective Account (including 401(k) Safe Harbor Contributions) are subject to restrictions and generally may not be distributed prior to age 59 1/2.

	AND, are distributions restricted to those accounts in which a Participant is fully Vested?

	k.	x	Yes, distributions may only be made from accounts which are fully Vested.

	l.	o	No. (If elected, the fraction at Plan Section 6.5(h) will apply in determining vesting of the portion of the account balance not withdrawn.)

	AND, the minimum distribution shall be...

	m.	o	N/A. There is no minimum.

	n.	x	$1000 (may not exceed $1,000).

NONDISCRIMINATION TESTING

46.	HIGHLY COMPENSATED EMPLOYEE (Plan Section 1.31)

	NOTE:		If this is a GUST restatement, complete the questions in this Section retroactively to the first Plan Year beginning after 1996.

	TOP-PAID GROUP ELECTION. Will the top ___ -paid group election be made? (The election made below for the latest year will continue to apply to subsequent Plan Years unless a different election is made.)

	a.	o	Yes, for the Plan Year beginning in: ______.

	b.	x	No, for the Plan Year beginning in: 1997.

	CALENDAR YEAR DATA ELECTION. Will the calendar year data election be used? (The election made below for the latest year will continue to apply to subsequent Plan Years unless a different election is made.)

	c.	o	Yes, for the Plan Year beginning in: ______.

	d.	x	No, for the Plan Year beginning in: 1997.

NON-STANDARDIZED 401(k) PROFIT SHARING PLAN


47.	ADP AND ACP TESTS (Plan Sections 12.4 and 12.6). The ADP ratio and ACP ratio for Non-Highly Compensated Employees will be based on the following. The election made below for the latest year will continue to apply to subsequent Plan Years unless the Plan is amended to a different election.

	a.	o	N/A. This Plan satisfies the ADP Test Safe Harbor rules and there are no contributions subject to an ACP test or for all Plan Years beginning in or after the Effective Date of the Plan or, in the case of an amendment and restatement, for all Plan Years to which the amendment and restatement relates.

	b.	o	PRIOR YEAR TESTING: The prior year ratio will be used for the Plan Year beginning in _____. (Note: If this election is made for the first year the Code Section 401(k) or 401(m) feature is added to this Plan (unless this Plan is a successor plan), the amount taken into account as the ADP and ACP of Non-Highly Compensated Employees for the preceding Plan Year will be 3%.)

	c.	x	CURRENT YEAR TESTING: The current year ratio will be used for the Plan Year beginning in 1997.

	NOTE:		In any Plan Year where the ADP Test Safe Harbor is being used but not the ACP Test Safe Harbor, then c. above must be used if an ACP test applies for such Plan Year.

TOP HEAVY REQUIREMENTS

48.	TOP HEAVY DUPLICATIONS (Plan Section 4.3(i)): When a Non-Key Employee is a Participant in this Plan and a Defined Benefit Plan maintained by the Employer, indicate which method shall be utilized to avoid duplication of top heavy minimum benefits: (If b., c., d. or e. is elected, f. must be completed.)

	a.	x	N/A. The Employer does not maintain a Defined Benefit Plan. (Go to next Question)

	b.	o	The full top heavy minimum will be provided in each plan (if selected, Plan Section 4.3(i) shall not apply).

	c.	o	5% defined contribution minimum.

	d.	o	2% defined benefit minimum.

	e.	o	Specify the method under which the Plans will provide top heavy minimum benefits for Non-Key Employees that will preclude Employer discretion and avoid inadvertent omissions:


	NOTE:		If c., d., or e. is selected and the Defined Benefit Plan and this Plan do not benefit the same Participants, the uniformity requirement of the Section 401(a)(4) Regulations may be violated.

	AND,		the “Present Value of Accrued Benefit” (Plan Section 9.2) for Top Heavy purposes shall be based on...


	f.	o	Interest Rate: _________________________________________________________________________

			Mortality Table: _______________________________________________________________________


49.	TOP HEAVY DUPLICATIONS (Plan Section 4.3(f)): When a Non-Key Employee is a Participant in this Plan and another defined contribution plan maintained by the Employer, indicate which method shall be utilized to avoid duplication of top heavy minimum benefits:

	a.	x	N/A. The Employer does not maintain another qualified defined contribution plan.

	b.	o	The full top heavy minimum will be provided in each plan.
	c.	o	A minimum, non-integrated contribution of 3% of each Non-Key Employee’s 415 Compensation shall be provided in the Money Purchase Plan (or other plan subject to Code Section 412).

	d.	o	Specify the method under which the Plans will provide top heavy minimum benefits for Non-Key Employees that will preclude Employer discretion and avoid inadvertent omissions, including any adjustments required under Code Section 415:


	NOTE:		If c. or d. is selected and both plans do not benefit the same Participants, the uniformity requirement of the Section 401(a)(4) Regulations may be violated.



MISCELLANEOUS

50.	LOANS TO PARTICIPANTS (Plan Section 7.6)

	a.	o	Loans are not permitted.

	b.	x	Loans are permitted.

NON–STANDARDIZED 401(k) PROFIT SHARING PLAN


	IF loans are permitted (select all that apply)...

	c.	x	loans will be treated as a Participant directed investment.

	d.	o	loans will only be made for hardship or financial necessity.

	e.	x	the minimum loan will be $500 (may not exceed $1,000).

	f.	x	a Participant may only have 2 (e.g., one (1)) loan(s) outstanding at any time.

	g.	o	all outstanding loan balances will become due and payable in their entirety upon the occurrence of a distributable event (other than satisfaction of the conditions for an in-service distribution).

	h.	x	loans will only be permitted from the following accounts (select all that apply):

			1.	x	All accounts.

			2.	o	Participant’s Elective Deferral Account.

			3.	o	Qualified Matching Contribution Account and/or portion of Participant’s Account attributable to Employer matching contributions.

			4.	o	Participant’s Account attributable to Employer profit sharing contributions.

			5.	o	Qualified Non-Elective Contribution Account.

			6.	o	Participant’s Rollover Account.

			7.	o	Participant’s Transfer Account.

			8.	o	Participant’s Voluntary Contribution Account.

	NOTE:		Department of Labor Regulations require the adoption of a separate written loan program setting forth the requirements outlined in Plan Section 7.6.

51.	DIRECTED INVESTMENT ACCOUNTS (Plan Section 4.10)

	a.	o	Participant directed investments are not permitted.

	b.	x	Participant directed investments are permitted for the following accounts (select all that apply):

			1.	x	All accounts.

			2.	o	Participant’s Elective Deferral Account.

			3.	o	Qualified Matching Contribution Account and/or portion of Participant’s Account attributable to Employer matching contributions.

			4.	o	Participant’s Profit Sharing Account.

			5.	o	Qualified Non-Elective Contribution Account.

			6.	o	Participant’s Rollover Account.

			7.	o	Participant’s Transfer Account.

			8.	o	Participant’s Voluntary Contribution Account.

			9.	o	Other:


	AND, is it intended that the Plan comply with Act Section 404(c) with respect to the accounts subject to Participant investment direction?

	c.	o	No.

	d.	x	Yes

	AND, will voting rights on directed investments be passed through to Participants?

	e.	o	No. Employer stock is not an alternative OR Plan is not intended to comply with Act Section 404(c).

	f.	x	Yes, for Employer stock only.

	g.	o	Yes, for all investments.

52.	ROLLOVERS (Plan Section 4.6)

	a.	o	Rollovers will not be accepted by this Plan.

	b.	x	Rollovers will be accepted by this Plan.


	AND, if b. is elected, rollovers may be accepted...

	c.	x	from any Eligible Employee, even if not a Participant.

	d.	o	from Participants only.

	AND, distributions from a Participant’s Rollover Account may be made...

	e.	x	at any time.

	f.	o	only when the Participant is otherwise entitled to a distribution under the Plan.

53.	AFTER-TAX VOLUNTARY EMPLOYEE CONTRIBUTIONS (Plan Section 4.8)

	a.	x	After-tax voluntary Employee contributions will not be allowed.

	b.	o	After-tax voluntary Employee contributions will be allowed.

54.	LIFE INSURANCE (Plan Section 7.5)

	a.	x	Life insurance may not be purchased.

	b.	o	Life insurance may be purchased at the option of the Administrator.

	c.	o	Life insurance may be purchased at the option of the Participant.

NON–STANDARDIZED 401(k) PROFIT SHARING PLAN


	AND, if b. or c. is elected, the purchase of initial or additional life insurance will be subject to the following limitations (select all that apply):

	d.	o	N/A, no limitations.

	e.	o	each initial Contract will have a minimum face amount of $_______.

	f.	o	each additional Contract will have a minimum face amount of $_______.

	g.	o	the Participant has completed _____ Years of Service (or Periods of Service).

	h.	o	the Participant has completed _____ Years of Service (or Periods of Service) while a Participant in the Plan.

	i.	o	the Participant is under age _____ on the Contract issue date.

	j.	o	the maximum amount of all Contracts on behalf of a Participant may not exceed $_______.

	k.	o	the maximum face amount of any life insurance Contract will be $_______.

GUST TRANSITION RULES

	The following questions only apply if this is a GUST restatement (i.e., Question 6.c. is selected). If this is not a GUST restatement, then this Plan will not be considered an individually designed plan merely because the following questions are deleted from the Adoption Agreement.

55.	COMPENSATION

	The family aggregation rules of Code Section 401(a)(17) as in effect under Code Section 414(q)(6) prior to the enactment of SBJPA do not apply to this Plan effective as of:

	a.	x	The first day of the first Plan Year beginning after 1996.

	b.	o	______ (may not be prior to the first day of the first Plan Year beginning in 1997 and may not be later than the first day of the Plan Year following the Plan Year in which this GUST restatement is adopted).

	NOTE:		If family aggregation continued to apply after 1996, the Plan is not a safe harbor plan for Code Section 401(a)(4) purposes and the Employer may not rely on the opinion letter issued by the Internal Revenue Service that this Plan is qualified under Code Section 401.

56.	LIMITATION ON ALLOCATIONS AND TOP HEAVY RULES If any Participant is a Participant in this Plan and a qualified defined benefit plan maintained by the Employer, then the limitations of Code Section 415(e) as in effect under Code Section 414(q)(6) prior to the enactment of SBJPA do not apply to this Plan effective with respect to Limitation Years beginning on or after:

	a.	x	N/A. The Employer does not maintain, and has never maintained, a qualified defined benefit plan OR the provisions of Code Section 415(e) have already been removed from this Plan.

	b.	o	______ (may not be prior to the first Limitation Year beginning in 2000 and may not be later than the first Limitation Year beginning after the Limitation Year in which this GUST restatement is adopted).

	NOTE:		If the Code Section 415(e) limits continued to apply to Limitation Years beginning after 1999, the Plan is not a safe harbor plan for Code Section 401(a)(4) purposes and the Employer may not rely on the opinion letter issued by the Internal Revenue Service that this Plan is qualified under Code Section 401.

	AND, if b. is selected with a date that is later than the effective date of this GUST restatement, then with respect to the Limitation Year in which this restatement is adopted, if any Participant is a Participant in this Plan and a qualified defined benefit plan maintained by the Employer, specify the method under which the plans involved will provide top heavy minimum benefits for Non-Key Employees and will satisfy the limitations of Code Section 415(e) in a manner that precludes Employer discretion:

	c.	o	N/A. The effective date of the GUST restatement is the date the provisions of Code Section 415(e) no longer apply to this Plan.

	d.	o


	NOTE:		If the top heavy minimum benefit is only provided in one plan and the Defined Benefit Plan and this Plan do not benefit the same Participants, the uniformity requirement of the Section 401(a)(4) Regulations may be violated.

57.	INVOLUNTARY DISTRIBUTIONS If the Plan provides for involuntary distributions (i.e., 41.a. is elected) then the increase in the involuntary amount threshold from $3,500 to $5,000 became effective with respect to distributions made on or after:

	a.	o	N/A. The plan doesn’t provide for involuntary distributions less than $5,000.

	b.	x	August 6, 1997, or if later _____ (leave blank if not applicable).

NON–STANDARDIZED 401(k) PROFIT SHARING PLAN


58.	MINIMUM DISTRIBUTIONS

	The proposed Code Section 401(a)(9) Regulations issued in January 2001 apply with respect to distributions under the Plan made on or after January 1, 2001, unless a later date is specified below:

	a.	o	N/A.

	b.	x	January 1, 2002 (may be any date in 2001 or the first day of any calendar year after 2001).

	AND, if b. is selected, for years prior to the date specified above, life expectancies for minimum distributions required pursuant to Code Section 401(a)(9) shall...

	c.	o	be recalculated at the Participant’s election.

	d.	o	be recalculated.

	e.	x	not be recalculated.

59.	ADP AND ACP TESTS. For Plan Years beginning in and prior to the Plan Year in which the restatement is adopted, the following will apply:

	ADP TEST:

	a.	o	PRIOR YEAR TESTING: The prior year ratio will be used for the Plan Year beginning in the year specified below. (If this election is made for the first year the Code Section 401(k) feature is added to this Plan (unless this Plan is a successor plan), the amount taken into account as the ADP of Non-Highly Compensated Employees for the preceding Plan Year will be 3%.) 1. o 1997 2. o 1998 3. o 1999 4. o 2000 5. o __

	b.	x	CURRENT YEAR TESTING: The current year ratio will be used for the Plan Year beginning in: 1. x 1997 2. x 1998 3. x 1999 4. x 2000 5. o __

	ACP TEST:

	c.	o	N/A.

	d.	o	PRIOR YEAR TESTING: The prior year ratio will be used for the Plan Year beginning in the year specified below. (If this election is made for the first year the Code Section 401(m) feature is added to this Plan (unless this Plan is a successor plan), the amount taken into account as the ACP of Non-Highly Compensated Employees for the preceding Plan Year will be 3%.) 1. o 1997 2. o 1998 3. o 1999 4. o 2000 5. o __

	e.	x	CURRENT YEAR TESTING: The current year ratio will be used for the Plan Year beginning in: 1. x 1997 2. x 1998 3. x 1999 4. x 2000 5. o __

NON–STANDARDIZED 401(k) PROFIT SHARING PLAN

The adopting Employer may rely on an opinion letter issued by the Internal Revenue Service as evidence that the plan is qualified under Code Section 401 only to the extent provided in Announcement 2001-77, 2001-30 I.R.B.

The Employer may not rely on the opinion letter in certain other circumstances or with respect to certain qualification requirements, which are specified in the opinion letter issued with respect to the plan and in Announcement 2001-77.

In order to have reliance in such circumstances or with respect to such qualification requirements, application for a determination letter must be made to Employee Plans Determinations of the Internal Revenue Service.

This Adoption Agreement may be used only in conjunction with basic Plan document 01. This Adoption Agreement and the basic Plan document shall together be known as Markley Actuarial Services, Inc. Prototype Non-Standardized 401(k) Profit Sharing Plan and Trust 01-005.

The adoption of this Plan, its qualification by the IRS, and the related tax consequences are the responsibility of the Employer and its independent tax and legal advisors.

Markley Actuarial Services, Inc. will notify the Employer of any amendments made to the Plan or of the discontinuance or abandonment of the Plan. Furthermore, in order to be eligible to receive such notification, we agree to notify Markley Actuarial Services, Inc. of any change in address.

This Plan may not be used, and shall not be deemed to be a Prototype Plan, unless an authorized representative of Markley Actuarial Services, Inc. has acknowledged the use of the Plan. Such acknowledgment is for administerial purposes only. It acknowledges that the Employer is using the Plan but does not represent that this Plan, including the choices selected on the Adoption Agreement, has been reviewed by a representative of the sponsor or constitutes a qualified retirement plan.

Markley Actuarial Services, Inc.


By:	/s/ JOHN R. MARKLEY

	John R. Markley

With regard to any questions regarding the provisions of the Plan, adoption of the Plan, or the effect of an opinion letter from the IRS, call or write (this information must be completed by the sponsor of this Plan or its designated representative):


Name:	John R. Markley


Address:	8 North Queen Street, Suite 900


	Lancaster	Pennsylvania	17603


Telephone:	(800) 815-9654

NON–STANDARDIZED 401(k) PROFIT SHARING PLAN

The Employer and Trustee hereby cause this Plan to be executed on September 3, 2002.

Furthermore, this Plan may not be used unless acknowledged by Markley Actuarial Services, Inc. or its authorized representative.

EMPLOYER:

Getty Realty Corp.


By:	/s/ THOMAS STIRNWEIS

	Thomas Stirnweis Corporate Controller and Treasurer

o	The signature of the Trustee appears on a separate trust agreement attached to the Plan,


/s/ LEO LIEBOWITZ

Leo Liebowitz TRUSTEE

/s/ RANDI YOUNG FILIP

Randi Young Filip TRUSTEE

/s/ THOMAS STIRNWEIS

Thomas Stirnweis TRUSTEE

EGTRRA

AMENDMENT TO THE

GETTY REALTY CORP. RETIREMENT AND PROFIT SHARING PLAN

EGTRRA – Employer

ARTICLE I

PREAMBLE


1.1	Adoption and effective date of amendment. This amendment of the plan is adopted to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”). This amendment is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. Except as otherwise provided, this amendment shall be effective as of the first day of the first plan year beginning after December 31, 2001.

1.2	Supersession of inconsistent provisions. This amendment shall supersede the provisions of the plan to the extent those provisions are inconsistent with the provisions of this amendment.

ARTICLE II

ADOPTION AGREEMENT ELECTIONS

THE QUESTIONS IN THIS ARTICLE II ONLY NEED TO BE COMPLETED IN ORDER TO OVERRIDE THE DEFAULT PROVISIONS SET FORTH BELOW. IF ALL OF THE DEFAULT PROVISIONS WILL APPLY, THEN THESE QUESTIONS SHOULD BE SKIPPED.

UNLESS THE EMPLOYER ELECTS OTHERWISE IN THIS ARTICLE II, THE FOLLOWING DEFAULTS APPLY:

	1)	THE VESTING SCHEDULE FOR MATCHING CONTRIBUTIONS WILL BE A 6 YEAR GRADED SCHEDULE (IF THE PLAN CURRENTLY HAS A GRADED SCHEDULE THAT DOES NOT SATISFY EGTRRA) OR A 3 YEAR CLIFF SCHEDULE (IF THE PLAN CURRENTLY HAS A CLIFF SCHEDULE THAT DOES NOT SATISFY EGTRRA), AND SUCH SCHEDULE WILL APPLY TO ALL MATCHING CONTRIBUTIONS (EVEN THOSE MADE PRIOR TO 2002).

	2)	ROLLOVERS ARE AUTOMATICALLY EXCLUDED IN DETERMINING WHETHER THE $5,000 THRESHOLD HAS BEEN EXCEEDED FOR AUTOMATIC CASH-OUTS (IF THE PLAN IS NOT SUBJECT TO THE QUALIFIED JOINT AND SURVIVOR ANNUITY RULES AND PROVIDES FOR AUTOMATIC CASH-OUTS). THIS IS APPLIED TO ALL PARTICIPANTS REGARDLESS OF WHEN THE DISTRIBUTABLE EVENT OCCURRED.

	3)	THE SUSPENSION PERIOD AFTER A HARDSHIP DISTRIBUTION IS MADE WILL BE 6 MONTHS AND THIS WILL ONLY APPLY TO HARDSHIP DISTRIBUTIONS MADE AFTER 2001.

	4)	CATCH-UP CONTRIBUTIONS WILL BE ALLOWED.

	5)	FOR TARGET BENEFIT PLANS, THE INCREASED COMPENSATION LIMIT OF $200,000 WILL BE APPLIED RETROACTIVELY (I.E., TO YEARS PRIOR TO 2002).


2.1	VESTING SCHEDULE FOR MATCHING CONTRIBUTIONS

	If there are matching contributions subject to a vesting schedule that does not satisfy EGTRRA, then unless otherwise elected below, for participants who complete an hour of service in a plan year beginning after December 31, 2001, the following vesting schedule will apply to all matching contributions subject to a vesting schedule:

	If the plan has a graded vesting schedule (i.e., the vesting schedule includes a vested percentage that is more than 0% and less than 100%) the following will apply:


Years of vesting service	Nonforfeitable percentage

2	20	%
3	40	%
4	60	%
5	80	%
6	100	%

If the plan does not have a graded vesting schedule, then matching contributions will be nonforfeitable upon the completion of 3 years of vesting service.

EGTRRA – Employer


In lieu of the above vesting schedule, the employer elects the following schedule:

	a.	o	3 year cliff (a participant’s accrued benefit derived from employer matching contributions shall be nonforfeitable upon the participant’s completion of three years of vesting service).

	b.	o	6 year graded schedule (20% after 2 years of vesting service and an additional 20% for each year thereafter).

	c.	o	Other (must be at least as liberal as a. or the b. above):


Years of vesting service		Nonforfeitable percentage

_______		_______%
_______		_______%
_______		_______%
_______		_______%
_______		_______%


	The vesting schedule set forth herein shall only apply to participants who complete an hour of service in a plan year beginning after December 31, 2001, and, unless the option below is elected, shall apply to all matching contributions subject to a vesting schedule.

	d.	o	The vesting schedule will only apply to matching contributions made in plan years beginning after December 31, 2001 (the prior schedule will apply to matching contributions made in prior plan years).

2.2	EXCLUSION OF ROLLOVERS IN APPLICATION OF INVOLUNTARY CASH-OUT PROVISIONS (FOR PROFIT SHARING AND 401(K) PLANS ONLY). If the plan is not subject to the qualified joint and survivor annuity rules and includes involuntary cash-out provisions, then unless one of the options below is elected, effective for distributions made after December 31, 2001, rollover contributions will be excluded in determining the value of the participant’s nonforfeitable account balance for purposes of the plan’s involuntary cash-out rules.

	a.	o	Rollover contributions will not be excluded.

	b.	x	Rollover contributions will be excluded only with respect to distributions made after January 1, 2002. (Enter a date no earlier than December 31, 2001.)

	c.	o	Rollover contributions will only be excluded with respect to participants who separated from service after ________. (Enter a date. The date may be earlier than December 31, 2001.)

2.3	SUSPENSION PERIOD OF HARDSHIP DISTRIBUTIONS. If the plan provides for hardship distributions upon satisfaction of the safe harbor (deemed) standards as set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then, unless the option below is elected, the suspension period following a hardship distribution shall only apply to hardship distributions made after December 31, 2001.

		x	With regard to hardship distributions made during 2001, a participant shall be prohibited from making elective deferrals and employee contributions under this and all other plans until the later of January 1, 2002, or 6 months after receipt of the distribution.

2.4	CATCH-UP CONTRIBUTIONS (FOR 401(k) PROFIT SHARING PLANS ONLY): The plan permits catch-up contributions (Article VI) unless the option below is elected.

		o	The plan does not permit catch-up contributions to be made.

ARTICLE III

VESTING OF MATCHING CONTRIBUTIONS

3.1	Applicability. This Article shall apply to participants who complete an Hour of Service after December 31, 2001, with respect to accrued benefits derived from employer matching contributions made in plan years beginning after December 31, 2001. Unless otherwise elected by the employer in Section 2.1 above, this Article shall also apply to all such participants with respect to accrued benefits derived from employer matching contributions made in plan years beginning prior to January 1, 2002.

3.2	Vesting schedule. A participant’s accrued benefit derived from employer matching contributions shall vest as provided in Section 2.1 of this amendment.

ARTICLE IV

INVOLUNTARY CASH-OUTS

4.1	Applicability and effective date. If the plan provides for involuntary cash-outs of amounts less than $5,000, then unless otherwise elected in Section 2.2 of this amendment, this Article shall apply for distributions made after December 31, 2001, and shall apply to all participants. However, regardless of the preceding, this Article shall not apply if the plan is subject to the qualified joint and survivor annuity requirements of Sections 401(a)(11) and 417 of the Code.

4.2	Rollovers disregarded in determining value of account balance for involuntary distributions. For purposes of the Sections of the plan that provide for the involuntary distribution of vested accrued benefits of $5,000 or less, the value of a participant’s nonforfeitable account balance shall be determined without regard to that portion of the account

EGTRRA - Employer


	balance that is attributable to rollover contributions (and earnings allocable thereto) within the meaning of Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code. If the value of the participant’s nonforfeitable account balance as so determined is $5,000 or less, then the plan shall immediately distribute the participant’s entire nonforfeitable account balance.

ARTICLE V

HARDSHIP DISTRIBUTIONS

5.1	Applicability and effective date. If the plan provides for hardship distributions upon satisfaction of the safe harbor (deemed) standards as set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then this Article shall apply for calendar years beginning after 2001.

5.2	Suspension period following hardship distribution. A participant who receives a distribution of elective deferrals after December 31, 2001, on account of hardship shall be prohibited from making elective deferrals and employee contributions under this and all other plans of the employer for 6 months after receipt of the distribution. Furthermore, if elected by the employer in Section 2.3 of this amendment, a participant who receives a distribution of elective deferrals in calendar year 2001 on account of hardship shall be prohibited from making elective deferrals and employee contributions under this and all other plans until the later of January 1, 2002, or 6 months after receipt of the distribution.

ARTICLE VI

CATCH-UP CONTRIBUTIONS

Catch-up Contributions. Unless otherwise elected in Section 2.4 of this amendment, all employees who are eligible to make elective deferrals under this plan and who have attained age 50 before the close of the plan year shall be eligible to make catch-up contributions in accordance with, and subject to the limitations of, Section 414(v) of the Code. Such catch-up contributions shall not be taken into account for purposes of the provisions of the plan implementing the required limitations of Sections 402(g) and 415 of the Code. The plan shall not be treated as failing to satisfy the provisions of the plan implementing the requirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of the making of such catch-up contributions.

ARTICLE VII

INCREASE IN COMPENSATION LIMIT

Increase in Compensation Limit. The annual compensation of each participant taken into account in determining allocations for any plan year beginning after December 31, 2001, shall not exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code. Annual compensation means compensation during the plan year or such other consecutive 12-month period over which compensation is otherwise determined under the plan (the determination period). If this is a target benefit plan, then except as otherwise elected in Section 2.5 of this amendment, for purposes of determining benefit accruals in a plan year beginning after December 31, 2001, compensation for any prior determination period shall be limited to $200,000. The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year.

ARTICLE VIII

PLAN LOANS

Plan loans for owner-employees or shareholder-employees. If the plan permits loans to be made to participants, then effective for plan loans made after December 31, 2001, plan provisions prohibiting loans to any owner-employee or shareholder-employee shall cease to apply.

ARTICLE IX

LIMITATIONS ON CONTRIBUTIONS (IRC SECTION 415 LIMITS)


9.1	Effective date. This Section shall be effective for limitation years beginning after December 31, 2001.

9.2	Maximum annual addition. Except to the extent permitted under Article VI of this amendment and Section 414(v) of the Code, if applicable, the annual addition that may be contributed or allocated to a participant’s account under the plan for any limitation year shall not exceed the lesser of:

	a.	$40,000, as adjusted for increases in the cost-of-living under Section 415(d) of the Code, or

	b.	100 percent of the participant’s compensation, within the meaning of Section 415(c)(3) of the Code, for the limitation year.

The compensation limit referred to in b. shall not apply to any contribution for medical benefits after separation from service (within the meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is otherwise treated as an annual addition.

EGTRRA - Employer

ARTICLE X

MODIFICATION OF TOP-HEAVY RULES


10.1	Effective date. This Article shall apply for purposes of determining whether the plan is a top -heavy plan under Section 416(g) of the Code for plan years beginning after December 31, 2001, and whether the plan satisfies the minimum benefits requirements of Section 416(c) of the Code for such years. This Article amends the top-heavy provisions of the plan.

10.2	Determination of top-heavy status.

10.2.1	Key employee. Key employee means any employee or former employee (including any deceased employee) who at any time during the plan year that includes the determination date was an officer of the employer having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Code for plan years beginning after December 31, 2002), a 5-percent owner of the employer, or a 1-percent owner of the employer having annual compensation of more than $150,000. For this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a key employee will be made in accordance with Section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder.

10.2.2	Determination of present values and amounts. This Section 10.2.2 shall apply for purposes of determining the present values of accrued benefits and the amounts of account balances of employees as of the determination date.

	a.	Distributions during year ending on the determination date. The present values of accrued benefits and the amounts of account balances of an employee as of the determination date shall be increased by the distributions made with respect to the employee under the plan and any plan aggregated with the plan under Section 416(g)(2) of the Code during the 1-year period ending on the determination date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the plan under Section 416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason other than separation from service, death, or disability, this provision shall be applied by substituting “5-year period” for “1-year period.”

	b.	Employees not performing services during year ending on the determination date. The accrued benefits and accounts of any individual who has not performed services for the employer during the 1-year period ending on the determination date shall not be taken into account.

10.3	Minimum benefits.

10.3.1	Matching contributions. Employer matching contributions shall be taken into account for purposes of satisfying the minimum contribution requirements of Section 416(c)(2) of the Code and the plan. The preceding sentence shall apply with respect to matching contributions under the plan or, if the plan provides that the minimum contribution requirement shall be met in another plan, such other plan. Employer matching contributions that are used to satisfy the minimum contribution requirements shall be treated as matching contributions for purposes of the actual contribution percentage test and other requirements of Section 401(m) of the Code.

10.3.2	Contributions under other plans. The employer may provide, in an addendum to this amendment, that the minimum benefit requirement shall be met in another plan (including another plan that consists solely of a cash or deferred arrangement which meets the requirements of Section 401(k)(12) of the Code and matching contributions with respect to which the requirements of Section 401(m)(11) of the Code are met). The addendum should include the name of the other plan, the minimum benefit that will be provided under such other plan, and the employees who will receive the minimum benefit under such other plan.

ARTICLE XI

DIRECT ROLLOVERS


11.1	Effective date. This Article shall apply to distributions made after December 31, 2001.

11.2	Modification of definition of eligible retirement plan. For purposes of the direct rollover provisions of the plan, an eligible retirement plan shall also mean an annuity contract described in Section 403(b) of the Code and an eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this plan. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in Section 414(p) of the Code.

11.3	Modification of definition of eligible rollover distribution to exclude hardship distributions. For purposes of the direct rollover provisions of the plan, any amount that is distributed on account of hardship shall not be an eligible rollover

EGTRRA - Employer


	distribution and the distributee may not elect to have any portion of such a distribution paid directly to an eligible retirement plan.

11.4	Modification of definition of eligible rollover distribution to include after-tax employee contributions. For purposes of the direct rollover provisions in the plan, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.

ARTICLE XII

ROLLOVERS FROM OTHER PLANS

Rollovers from other plans. The employer, operationally and on a nondiscriminatory basis, may limit the source of rollover contributions that may be accepted by this plan.

ARTICLE XIII

REPEAL OF MULTIPLE USE TEST

Repeal of Multiple Use Test. The multiple use test described in Treasury Regulation Section 1.401(m)-2 and the plan shall not apply for plan years beginning after December 31, 2001.

ARTICLE XIV

ELECTIVE DEFERRALS


14.1	Elective Deferrals - Contribution Limitation. No participant shall be permitted to have elective deferrals made under this plan, or any other qualified plan maintained by the employer during any taxable year, in excess of the dollar limitation contained in Section 402(g) of the Code in effect for such taxable year, except to the extent permitted under Article VI of this amendment and Section 414(v) of the Code, if applicable.

14.2	Maximum Salary Reduction Contributions for SIMPLE plans. If this is a SIMPLE 401(k) plan, then except to the extent permitted under Article VI of this amendment and Section 414(v) of the Code, if applicable, the maximum salary reduction contribution that can be made to this plan is the amount determined under Section 408(p)(2)(A)(ii) of the Code for the calendar year.

ARTICLE XV

SAFE HARBOR PLAN PROVISIONS

Modification of Top-Heavy Rules. The top-heavy requirements of Section 416 of the Code and the plan shall not apply in any year beginning after December 31, 2001, in which the plan consists solely of a cash or deferred arrangement which meets the requirements of Section 401(k)(12) of the Code and matching contributions with respect to which the requirements of Section 401(m)(11) of the Code are met.

ARTICLE XVI

DISTRIBUTION UPON SEVERANCE OF EMPLOYMENT


16.1	Effective date. This Article shall apply for distributions and transactions made after December 31, 2001, regardless of when the severance of employment occurred.

16.2	New distributable event. A participant’s elective deferrals, qualified nonelective contributions, qualified matching contributions, and earnings attributable to these contributions shall be distributed on account of the participant’s severance from employment. However, such a distribution shall be subject to the other provisions of the plan regarding distributions, other than provisions that require a separation from service before such amounts may be distributed.

This amendment has been executed this third day of September, 2003.

Name of Employer: Getty Realty Corp.


By:	/s/ THOMAS STIRNWEIS

	Thomas Stirnweis Corporate Controller and Treasurer EMPLOYER

Name of Plan: Getty Realty Corp. Retirement and Profit Sharing Plan

EXHIBIT 10.3 ASSET PURCHASE AGREEMENT AMONG POWER TEST CORP. (NOW KNOWN AS GETTY PROPERTIES CORP.), TEXACO INC., GETTY OIL COMPANY AND GETTY REFINING AND MARKETING COMPANY, DATED AS OF DECEMBER 21, 1984.

[Conformed Copy - As Executed]

ASSET PURCHASE AGREEMENT

Dated December 21, 1984

between

Power Test Corp.

and

Texaco Inc.,
Getty Oil Company, and
Getty Refining and Marketing Company

Purchase by Power Test Corp. of assets consisting of the petroleum marketing operations of Getty Oil Company located in the Northeast.

TABLE OF CONTENTS


				Page


Parties				1

Recitals				1

Section 1.	Sale and Transfer of Assets			2

Section 2.	(a)	Estimated Purchase Price; Subordinated Note		6
	(b)	Adjustment to Purchase Price		8
	(c)	Value of Leased Stations and Equipment; Appraisals		10
	(d)	Reimbursement of Purchase Price		12

Section 3.	Assumption of Liabilities and Obligations			13

Section 4.	Instruments of Conveyance and Transfer; Title Insurance			14

Section 5.	Further Assurances			16

Section 6.	Representations and Warranties of Texaco, GOC and GRMC			17

	(a)	Organization and Good Standing of Texaco, GOC and GRMC		18
	(b)	Certificate of Incorporation and By-Laws		18
	(c)	Corporate Authority		18
	(d)	Absence of Undisclosed Liabilities and Obligations		20
	(e)	Inventory		21
	(f)	Title to Properties; Absence of Liens and Encumbrances, etc.		21
	(g)	Lists of Contracts and Other Data		22
	(h)	Copies of Documents; Other Information		24
	(i)	Intellectual Property Rights		25
		(i)	Patents and Technology	25
		(ii)	Trademarks and Copyrights	25
	(j)	Insurance		27
	(k)	Litigation		27
	(1)	Compliance with Laws		28
	(m)	No Brokers		29
	(n)	Transactions with Certain Persons		29


			Page


	(o)	Investment Intent	30
	(p)	Consents and Approvals	30
	(q)	No Material Adverse Change	30
	(r)	Ownership of Assets	30
	(s)	Disclosure	31
	(t)	Merger Agreement	31

Section 7.	Representations and Warranties of Buyer		31

	(a)	Organization and Good Standing of Buyer and The Realty Company	31
	(b)	Certificate of Incorporation and By-Laws	31
	(c)	Corporate Authority	32
	(d)	No Brokers	33
	(e)	Validity of Liens	34
	(f)	Consents and Approvals	34
	(g)	Financial Statements	34
	(h)	No Material Adverse Change	35
	(i)	Disclosure	36

Section 8.	The Closing		36

Section 9.	Certain Covenants		38

	(a)	Conduct of the Operation’s Business	38
	(b)	Access to the Operation’s Business; Confidentiality	39
	(c)	Best Efforts; Mutual Cooperation; Performance	40
	(d)	Accounts Receivable	41
	(e)	Agreements With Franchisees	42
	(f)	Employees	44
	(g)	Antitrust Compliance	45
	(h)	Negotiations With Third Parties	45
	(i)	Use of Trademark	46
	(j)	Conduct of Buyer’s Business	46
	(k)	Notice of Material Adverse Change in Buyer’s Business	46
	(l)	Notice of Material Adverse Change in Operation	47
	(m)	Powers of Attorney	47
	(n)	Removal of Excluded Assets	47
	(o)	No Franchise Created; Mutual Cancellation Agreement	48
	(p)	Maintenance Support	49
	(q)	Financial Statements	49


			Page


Section 10.	Conditions to Obligations of Buyer		50

	(a)	Antitrust Compliance	50
	(b)	Approvals and Consents	50
	(c)	Trademarks	51
	(d)	PMPA Compliance	51
	(e)	Representations and Warranties True at the Closing Date	51
	(f)	Performance by Texaco, GOC and GRMC	51
	(g)	Authority	52
	(h)	Opinion of Texaco’s Counsel	52
	(i)	Litigation	55
	(j)	No Material Adverse Changes or New Facts	55
	(k)	Assets	55
	(l)	Forms of Documents	56

Section 11.	Conditions to Obligations of Texaco, GOC and GRMC		56

	(a)	Antitrust Compliance	56
	(b)	Representations and Warranties True at the Closing Date	56
	(c)	Buyer’s Performance	57
	(d)	Authority	57
	(e)	Opinion of Buyer’s Counsel	57
	(f)	Forms of Documents	59

Section 12.	Bulk Sales Act		59

Section 13.	Nature and Survival of Representations; Indemnification; etc.		60

	(a)	Nature and Survival of Covenants, Representations and Warranties	60
	(b)	Agreement by Texaco, GOC and GRMC to Indemnify	61
	(c)	Buyer’s Agreement to Indemnify	63
	(d)	Indemnity Relating to the Transaction which is the Subject of this Agreement	65
		Defense; Notice of Claims	67
		PMPA Class Action	68
		Liability Threshold and Right of Set-Off	68
		Standard of Materiality	69

Section 14.	Related Agreements		70

	(a)	Trademark License Agreement	70
	(b)	Supply Agreement	70
	(c)	ECRA Agreement	72

iii


		Page


Section 15.	Terminaling Arrangements	72

Section 16.	Specific Performance; Payment of Certain Expenses; Sales and Use Taxes	73

Section 17.	Waiver	74

Section 18.	Notices	74

Section 19.	Entire Agreement; Amendment	75

Section 20.	General	76

Section 21.	Third Party Beneficiary	77

Power Test Realty Company Acknowledgment		79


		Page


	Exhibits

Exhibit A.	Withheld Service Stations	3
Exhibit A-1.	Non-withheld Service Stations	5
Exhibit B.	Previously Sold Service Stations	3
Exhibit C.	Transferred Properties	3
Exhibit D.	Leases, Permits and Contracts	3
Exhibit E.	Excluded Assets	4
Exhibit F.	Intentionally Omitted
Exhibit G.	Intentionally Omitted
Exhibit H.	Intentionally Omitted
Exhibit I.	Intentionally Omitted
Exhibit J.	Liabilities and Obligations with Respect to the Operation	13
Exhibit K.	Intentionally Omitted
Exhibit L.	Title; Liens; Encumbrances	21
Exhibit M.	Pending or Threatened Litigation	27
Exhibit N.	Pending Legislation	28
Exhibit O.	Form of Mutual Cancellation Agreement	49
Exhibit P.	Form of Trademark License Agreement	70
Exhibit Q.	Form of Supply Agreement	70
Exhibit R.	Form of Delaware City Handling Agreement	70

	Schedules

Schedule A.	Personal Property	22
Schedule B.	Insurance	22
Schedule C.	Powers of Attorney	23
Schedule D.	Computer Programs; Management, Accounting and Data Processing Systems	23
Schedule E.	Petroleum Product Volumes	23
Schedule F.	Personnel	23
Schedule G.	Real Estate	23
Schedule H.	Product Supply and Distribution	23
Schedule I.	Product Sales	24
Schedule J.	Outside Counsel	24
Schedule K.	Company Operated Stations	24
Schedule L.	Getty Dealer Agreements	24
Schedule M.	Intellectual Property Rights	24


Defined Terms

Term		Page

Agreement		1
Alpha Portland		35
Assets		2
Assignment and Assumption Agreement		13
Bills of Sale		15
Buyer		1
Buyer’s Documents		32
Claim		67
Closing		36
Closing Date		36
Closing Time		36
Collateral		33
Collection Period		41
Confidentiality Agreement		19
Consent Decree		1
Contracts		3
Dealer Amortizations		4
Deeds		14
Delaware City Handling Agreement		70
ECRA		28
ECRA Agreement		72
Fee Properties		6
Franchisees		42
FTC		1
GOC Group		1
GOC		1
GRMC		1
Inventory		3
Leased Stations		3
Leases		3
Marketing Equipment		6
Memorandum of Agreement		2
Merger Agreement		31
Mutual Cancellation Agreement		49
Newark Terminal		37
Operation		1
Operative Documents		19
PT Leases		8
Permits		3
PMPA		28
Prime Rate		7
Properties		3
Realty Company		6
Receivables		4
Related Agreements		18
Representatives		39
Second Mortgages and Deeds of Trust		7
Security Agreements		8
Security Instruments		8
Subordinated Note		7


		Page


Supply Agreement		70
Territory		1
Texaco		1
Third Party Contracts		17
Trademark License Agreement		70
Trademarks		26

THIS ASSET PURCHASE AGREEMENT (the “Agreement”), dated December 21, 1984, is between POWER TEST CORP., a Delaware corporation (“Buyer”), and TEXACO INC., a Delaware corporation (“Texaco”), GETTY OIL COMPANY, a Delaware corporation (“GOC”) and GETTY REFINING AND MARKETING COMPANY, a Delaware corporation (“GRMC”).

WHEREAS, Texaco has acquired by merger GOC, which is now an indirect wholly-owned subsidiary of Texaco and the indirect owner, through its subsidiary GRMC, of the Operation (as hereinafter defined), subject to the terms of the Agreement Containing Consent Order between Texaco and the Federal Trade Commission (the “FTC”), dated July 10, 1984 (the “Consent Decree”);

WHEREAS, GOC is the owner of the Trademarks (as hereinafter defined) and GRMC conducts the Operation and owns the Assets (as hereinafter defined), other than the Trademarks, of the Operation and GOC and GRMC are hereinafter together referred to as the “GOC Group”;

WHEREAS, Texaco, GOC and GRMC desire to sell and Buyer desires to purchase those assets of the GOC Group consisting of the petroleum marketing operations (the “Operation”) of the GOC Group located in the jurisdictions of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, West Virginia, Virginia and the District of Columbia (the “Territory”) for the consideration provided herein;

WHEREAS, Buyer and Texaco entered into a legally binding Memorandum of Agreement dated January 27, 1984 with respect to the purchase and sale of the Operation (the “Memorandum of Agreement”) wherein Texaco and Buyer agreed, notwithstanding the legally binding nature of the Memorandum of Agreement, to execute a more detailed acquisition agreement which when executed and delivered would supersede the Memorandum of Agreement; and

WHEREAS, this Asset Purchase Agreement, together with the Related Agreements (as hereinafter defined), Exhibits and Schedules contemplated herein, is the more detailed acquisition agreement contemplated by, and is intended to supersede, the Memorandum of Agreement (except it is not intended to supersede the provisions of Paragraph 23 of the Memorandum of Agreement respecting confidentiality);

NOW, THEREFORE, the parties agree as follows:

1. Sale and Transfer of Assets . (a) Subject to the terms and conditions of this Agreement, the GOC Group will sell, convey, assign, transfer and deliver, and Texaco will cause to be sold, conveyed, assigned, transferred and delivered, to Buyer and Buyer will purchase, or cause to be purchased as provided in Section 2(a) herein, at the Closing (as hereinafter defined) all of the assets of the Operation existing at the Closing Date (as hereinafter defined) including, without limitation, the following assets (the “Assets”):


	(i) all of GRMC’s right, title and interest in all of the real and personal properties (in-


	cluding properties which are leased from third parties, including both Lessor-built stations and service stations owned by GRMC on leased land, (collectively, the “Leased Stations”), but excluding the service stations designated on Exhibit A hereto as withheld properties and excluding the stations listed on Exhibit B hereto which have been sold or for which a binding contract to sell has been executed in the ordinary course of business prior to January 27, 1984), including all equipment and fixtures used in the Operation (collectively, the “Properties”), an accurate list of which is set forth in Exhibit C hereto, subject to the adjustment provisions of subsections (c)(i), (c)(iv), (c)(v) and (c)(vii) of this Section 1;

	(ii) all of GRMC’s right, title and interest in, by assignment of, all of the leases and related security deposits (including leases for Leased Stations and dealer leases) (the “Leases”), contracts (including certain consumer contracts and distributorship agreements, but excluding those contracts listed on Exhibit E) (the “Contracts”), licenses, permits and other intangible property rights used in the Operation (the “Permits”), an accurate list of which Leases, Contracts and Permits is set forth in Exhibit D hereto, subject to the adjustment provisions of subsections (c)(ii) and (c)(iii) of this Section 1;

	(iii) the exclusive license to use the Trademarks in the Territory as provided for in the Trademark License Agreement (as hereinafter defined);

	(iv) all of GRMC’s right, title and interest in all of the petroleum products and other inventory owned by GRMC and located at the Properties (including the Leased Stations), including product in transit and finished inventory products owned by GRMC and held at third-party locations for use in the Operation on the Closing Date (the “Inventory”), exclusive of tires, batteries and accessories (which shall be retained by GRMC), subject to the adjustment provisions of subsection (c)(vi) of this Section 1;

	(v) copies of all relevant documents owned by GRMC, copies of which are in the possession of Texaco or any member of the GOC Group, pertaining to the Properties (including, without limitation, all certificates of occupancy, surveys and construction drawings), the Leases, Contracts and


	Permits, the Inventory, the Receivables (as hereinafter defined) and the use of the Trademarks by the Operation, and all advertising and promotional material, price and product lists, sales records and customer lists;

	(vi) agreements (whether in the form of notes or contracts) by dealers to pay GRMC with respect to improvements on the service stations including the use of the Trademarks at the service stations (the “Dealer Amortizations”) listed on Exhibit D;

	(vii) all of GRMC’s right, title and interest to claims and causes of action relating to the Operation which arise on or after the Closing Date; and

	(viii) all of GRMC’s right, title and interest to underground tanks, related piping and other property located in or under real property owned by GRMC’s dealers, the dealers of GRMC’s distributors or GRMC’s consumer customers in the Territory.

(b) Notwithstanding anything herein to the contrary, the transaction contemplated by this Agreement does not include (i) the transfer to Buyer by GRMC of the accounts receivable, other than the Dealer Amortizations, of the Operation which originate prior to the Closing Time (as hereinafter defined) (the “Receivables”); or (ii) the transfer to Buyer by the GOC Group of the excluded assets listed in Exhibit E hereto.

(i) in the event that Buyer is not satisfied with the status of title with respect to any of the Properties, Texaco and GRMC shall use their respective best efforts to cure title at their expense, subject to the provisions of the second sentence of Section 9(c) herein, prior to the Closing, or if they cannot so cure title, Buyer, at its option, may exclude the property from the Properties sold hereunder, in which case the value


	to GRMC at GRMC’s expense (as provided in Section 9(n) herein) in which case the value of such products shall not be included in the final purchase price hereunder; and

	(vii) in the event that any third party exercises a right of first refusal, or an option or other right to acquire any of the Properties prior to the Closing, such Property shall not be transferred and the appraised value of such Property shall not be included in the purchase price hereunder; in the event that such right or option is exercised after the Closing but not more than ninety (90) days after the Closing Date, the purchase price of such Property received by Buyer pursuant to such right or option shall be paid-over by Buyer to GRMC, and the appraised value of such Property shall not be included in the final purchase price pursuant to Section 2(b) herein.

2. (a) Estimated Purchase Price; Subordinated Note . The aggregate estimated purchase price of the Assets shall be $69,077,660 plus the value of petroleum products included in Inventory at Closing Time, subject to increase or decrease as provided in Section 2(b) herein. At the Closing, Power Test Realty Company Limited Partnership, a limited partnership organized under the laws of the State of New York (the “Realty Company”), shall purchase all of the service stations and distribution terminals which are owned in fee by GRMC, including the pumps and all fixtures thereon and appurtenances thereto (the “Fee Properties”), and all of the personal property and equipment located at the Leased Stations and third party locations, including pumps, tanks and furniture, and all motor vehicles and other rolling stock owned by GRMC wherever located (the “Marketing Equipment”). Buyer shall purchase all of the other Assets being transferred hereunder. At the Closing, Buyer shall, or

shall cause the Realty Company to, deliver (i) a negotiable, subordinated promissory note of the Realty Company payable to GRMC in the principal amount of $35 million (the “Subordinated Note”) which shall be non-recourse with respect to Buyer and (ii), by wire transfer to GRMC, the balance of the aggregate estimated purchase price (subject to any decrease in accordance with Section 8(c) herein) in immediately available funds. The Subordinated Note shall mature six years after the Closing Date with the principal amount payable in eight equal installments on the last business day of each three month period beginning in the fifth year after the date of issuance thereof. The Subordinated Note shall be subordinated only to $35 million principal amount, plus accrued interest, of first mortgage debt (and any renewals or extensions thereof) which debt, and any renewals or extensions thereof, may consist of one or more first mortgages on the Fee Properties aggregating not more than $35 million, incurred by such Realty Company to purchase such assets at the Closing. Such Subordinated Note shall bear interest on the unpaid principal amount thereof at the prime commercial lending rate set by Manufacturers Hanover Trust Company as it may float from time to time (the “Prime Rate”) minus 200 basis points, payable quarterly in arrears, and shall be secured by: (i), at GRMC’s expense (except that Buyer shall pay all mortgage recording taxes), second mortgage liens and security interests on the Fee Properties conveyed to the Realty Company (the “Second Mortgages and Deeds of Trust”),

evidenced by one or more instruments containing covenants customarily required by institutional investors, including, without limitation, the terms required by the Realty Company’s lender; and (ii) first security interests and liens on the Marketing Equipment evidenced by one or more mutually satisfactory security agreements (the “Security Agreements”) (the Security Agreements together with the Second Mortgages and Deeds of Trust are hereinafter referred to as the ‘Security Instruments”). Texaco and GRMC understand that the Realty Company, and not Buyer itself, shall be the mortgagor and debtor under such Security Instruments, and that GRMC, together with the Realty Company’s lender, will enter into customary non-disturbance agreements with respect to the leases (which shall be subordinate to the Second Mortgages and Deeds of Trust) to be entered into between the Realty Company (as lessor) and the Buyer (as lessee) with respect to the Fee Properties (the “PT Leases”). Texaco and GRMC further understand that the Subordinated Note will not be registered under the Securities Act of 1933, as amended, and that the Realty Company will have no obligation to so register the Subordinated Note.

(b) Adjustment to Purchase Price . The final purchase price for all of the Assets hereunder shall consist of the sum of:


	(i) the amounts set forth in the appraisals required by Section 2(c) herein for all of the Properties (excluding the Leased Stations) to be transferred to the Buyer or the Realty Company at the Closing, less the amount of any assumptions or payments made by Buyer or the Realty Company pursuant to Section 3(b) herein,


	except to the extent that the amount of any debt, security interest or lien assumed or paid by Buyer or the Realty Company was expressly deducted in any appraisal made pursuant to Section 2(c) herein; plus

	(ii) the amounts (x) set forth in Section 2(c)(i); (y) to be determined by applying the unit prices provided for in Section 2(c)(i); and (z) to be determined by the appraisals required by Section 2(c)(i) herein for all of the personal property, equipment and fixtures (not included under the appraisals set forth in clause (i) above) to be transferred to the Buyer or the Realty Company at the Closing; plus

CONFIDENTIAL

Omitted and filed separately with the
Securities and Exchange Commission.


	(v) the value of the other items included in Inventory at the Closing Time (including Inventory items at third party locations) at the lover of wholesale cost or then current market price; less

	(vi) the appraised value of any Properties transferred at the Closing but not to be included in the final purchase price hereunder pursuant to Sections 1(c)(vi) and (vii) herein.

Any resulting adjustment to the aggregate estimated purchase price set forth in Section 2(a) herein shall be made by wire transfer of immediately available funds not later than ninety (90) days after the Closing Date and the amount of such adjustment shall bear interest at the Prime

Rate minus 200 basis points from the Closing Date to the date of such payment.

(c) Value of Leased Stations and Equipment; Appraisals . (i) The value of the Leased Stations for purposes of this Agreement shall be deemed to be zero. The value of the underground tanks and other personal property (other than motor vehicles and other rolling stock) located at the Fee Properties shall be determined by the appraisals referred to below in this Section 2(c)(i). The value of the underground tanks located at the Leased Stations and at dealer/contract and consumer accounts for purposes of this Agreement shall be deemed to be $2.6 million. The value of all other equipment located on the Closing Date at Leased Stations, distributor, dealer/contract and consumer accounts and at third party locations shall be determined by applying the unit prices for such equipment as set forth in Exhibit C. GRMC’s present estimated aggregate value of such other equipment is $5 million. The value of all furniture, office equipment, supplies and other personal property located on the Closing Date at the distribution terminals transferred to Buyer hereunder shall be determined by applying the unit prices set forth in Exhibit C. GRMC’s present estimated value of such equipment is $250,000. The value of all motor vehicles and other rolling stock shall be the aggregate value of such equipment as more fully set forth in Exhibit C hereto subject to adjustment based on the vehicles and other rolling stock actually delivered to Buyer on the Closing

Date. As of the date hereof, the aggregate value of the vehicles and other rolling stock listed on Exhibit C is $1,499,915. The value of all of the service stations and distribution terminals listed on Exhibit C hereto shall be determined by appraisals based on current use as a service station or distribution terminal, as the case may be, prepared by reputable appraisers jointly selected by GRMC and Buyer and satisfactory to Buyer’s or the Realty Company’s lenders, at GRMC’s expense. Such appraisals shall set forth the current fair market value of the Properties (without deduction for the amount of any debts, security interests or liens on such Properties), except that service stations or distribution terminals which are not on the date hereof in active use shall be appraised based on their highest and best use. The parties hereto acknowledge and agree that they have received copies of such appraisals, a summary schedule of which has been heretofore delivered to the parties, and that the results of such appraisals are accepted by them for purposes of this Agreement, except as noted on the summary schedule. In addition, on or before the Closing, Buyer and GRMC will agree on values of all personal property, equipment and fixtures, other than that which is described above in this Section 2(c)(i) and the Inventory which is to be valued at the Closing Time in accordance with the provisions of Sections 2(b) (iii), (iv) and (v) herein; provided , however , that if Buyer and GRMC are unable to agree on such values then, promptly after the Closing, appraisals shall be prepared by reputable appraisers (who may

be employees or representatives of Buyer and GRMC) selected by GRMC and Buyer, at GRMC and Buyer’s joint expense covering all the property described in this sentence.

(ii) The amounts set forth in the appraisals provided for in Section 2(c)(i) shall be binding upon the parties for purposes of determining the purchase price hereunder; provided , however , that either Buyer or GRMC may object to any appraisal and request that such appraisal be submitted to arbitration. If arbitration is requested, each of Buyer and GRMC may at its own expense select its own reputable licensed appraiser who shall appraise the property in question, end the appraisal(s) of the new appraiser(s) shall be averaged with the original appraisal, such average amount to be binding on the parties.

(iii) In the event that the aggregate amount of the values of the Properties to be transferred at Closing pursuant to this Section 2(c), after giving effect to the adjustments required by Section l(c) herein, is (A) less than $75 million, the purchase price under this Section 2 shall be reduced by an amount equal to the difference between $75 million and the aggregate amount of such appraised values; or (B) greater than $75 million, the purchase price under this Section 2 shall be increased by an amount equal to 50% of the difference between $75 million and the aggregate amount of such appraised values.

(d) Reimbursement of Purchase Price . Except as provided in Sections l(c)(vii) and 2(b)(vi) herein, the parties agree that GRMC shall reimburse Buyer or the Realty

Company for one-half of that amount of the purchase price (without any interest) for which Buyer or the Realty Company is not otherwise reimbursed in respect to any assets purchased and paid for by Buyer or the Realty Company hereunder in the event that Buyer or the Realty Company is compelled by any court, agency or other authority, whether state, federal, local or otherwise, to convey, assign or transfer such assets to any distributor or service station dealer. It is specifically agreed by the parties hereto that in such event reimbursement of the purchase price as set forth herein or an adjustment to the final purchase price as provided in Sections 1(c)(vii) and 2(b)(vi) herein shall be Buyer’s and the Realty Company’s sole remedy against Texaco, GOC or GRMC.

3. Assumption of Liabilities and Obligations . (a) Buyer agrees that at the Closing (i) it, or the Realty Company, as the case may be, will purchase the Assets and (ii) it will accept the assignment of the Leases, Contracts and Permits and assume all of the obligations set forth in the Leases (including the liability for lessee security deposits), Contracts and Permits, and execute an Assignment and Assumption Agreement (the “Assignment and Assumption Agreement”).

(b) Buyer, Texaco and GRMC agree that, if any of the Properties, including equipment, are encumbered by mortgage debt or other security interest or lien, such information shall be disclosed by Texaco and GRMC in Exhibit J hereto and Buyer, or the Realty Company, as the case may be,

shall, at its option, either assume the underlying debt and the lien (but only if GRMC is released and discharged from such debt) or require GRMC to discharge, and Texaco to cause the discharge of, such debt and lien, in which case Buyer or the Realty Company, as the case may be, will pay GRMC, in cash, whatever amount is required to satisfy such debt (not in excess of the principal amount of such debt plus accrued interest, any such excess to be paid by GRMC) and release and discharge such lien.

(c) Except as set forth above in this Section 3, Buyer and the Realty Company will assume no other liabilities, whether direct or contingent, known or unknown, or disclosed in any Exhibit or Schedule to this Agreement, relating to the Operation.

4. Instruments of Conveyance and Transfer; Title Insurance . (a) Conveyance of the real property at the Closing shall be made by special warranty deeds (or the equivalent instruments in the jurisdiction where such real property is located) (the “Deeds”) fully insurable by the title insurance company or companies referred to below; and GRMC shall pay for and affix any documentary taxes which may be required, and shall pay all recording fees and state or local real property gains or transfer taxes (provided that Buyer shall pay all mortgage recording taxes) arising as a result of such conveyances. Real property taxes, personal property taxes, lease rentals (paid or collected) and utilities shall be prorated at the Closing. Such Deeds shall be accompanied by commitments for ALTA title insurance policies

in minimum amounts determined by GRMC for the real property, issued by a reputable title insurance company or companies, to be selected by GRMC and obtained at GRMC’s expense, together with a current survey, obtained at GRMC’s expense, of the real property, issued by a duly certified surveyor, acceptable (such that no survey exception will be taken) to the title insurance company issuing the title insurance commitments. It is further understood and agreed that GRMC and Buyer shall share equally in the expense of any title insurance in excess of minimum amounts required for such commitments, covering the Realty Company as the owner in amounts up to the aggregate purchase price of such real property under this Agreement and GRMC as the original holder of the Second Mortgages and Deeds of Trust in amounts aggregating up to $35 million.

(b) Conveyances of the personal property at the Closing (including the Inventory) shall be made by Bills of Sale mutually acceptable to Buyer and GRMC (the “Bills of Sale”), and GRMC shall pay all state or local gains or transfer taxes in connection therewith, except as provided in the last sentence of Section 16(b) herein. Such Bills of Sale conveying the personal property (other than the Inventory) may disclaim any warranty other than the warranty of title and may state that such personal property is transferred “AS IS” and “WHERE IS” and “WITHOUT ANY WARRANTIES OF FITNESS AND MERCHANTABILITY.”

and sufficient instruments of conveyance and transfer, in form and substance satisfactory to Buyer and its counsel, as are effective to transfer to Buyer or the Realty Company, as the case may be, all of GRMC’s right, title and interest in the balance of the Assets free and clear of any lien, security interest, charge or encumbrance (but only if, and to the extent that, payment of money by GRMC, will discharge such lien, security interest, charge or encumbrance in accordance with its terms), subject to Section 3(b) herein.

(d) Simultaneously with the delivery of the instruments of conveyance under subsections (a) through (c) of this Section 4, Texaco, GOC and GRMC shall take or cause to be taken all such other steps as are required hereunder to put Buyer or the Realty Company, as the case may be, in actual possession and operating control of the Assets, subject to any leasehold interests set forth in Exhibit D hereto.

5. Further Assurances . Buyer and, subject to the provisions of the second sentence of Section 9(c) herein, Texaco, GOC and GRMC each will use its best efforts without further consideration to obtain as promptly as possible written consents to the transfer, assignment or sublicense to Buyer of all agreements, commitments, purchase orders, contracts, licenses, leases, rights, documents and other assets being transferred pursuant hereto where the approval or other consent of any other person may be required and has not yet been obtained. If any such approval or other con-

sent cannot be obtained, or if the parties hereafter agree in writing that it is not in their respective best interests to obtain any such approval or other consent, the parties will enter into such other mutually satisfactory arrangements as will put the parties in substantially the same economic condition as if such approval or other consent had been obtained and the transfer effected on the Closing Date, unless Buyer shall elect, pursuant to Section 1(c) (ii) herein, not to purchase such affected property. Buyer shall cooperate with Texaco and GRMC (including, where necessary, entering into appropriate instruments of assumption as shall be agreed upon) to attempt to have GRMC released from all liability to third parties with respect to any commitments, purchase orders, agreements, contracts, licenses and leases assumed pursuant to this Agreement (the “Third Party Contracts”), but the failure of any third party, notwithstanding such cooperation, to so release GRMC upon the assumption by Buyer of the Third Party Contracts shall not relieve Texaco, GOC or GRMC of their obligations to consummate the transactions contemplated by this Agreement. The indemnification provisions contained in Sections 12 and 13 herein shall continue to apply in favor of Texaco, GOC and GRMC despite the failure, if any, of a third party to so release GRMC.

6. Representations and Warranties of Texaco, GOC and GRMC . Texaco, GOC and GRMC hereby, jointly and severally, represent and warrant to Buyer as follows:

(a) Organization and Good Standing of Texaco, GOC and GRMC . Texaco, GOC and GRMC are each corporations duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) Certificate of Incorporation and By-laws . Texaco has delivered to Buyer copies of its Certificate of incorporation (certified as of a recent date by its Secretary) and its By-laws (certified as of the date hereof by its Secretary) and copies of the Certificate of Incorporation of each member of the GOC Group (certified as of a recent date by its respective Secretary) and the By-laws of each member of the GOC Group (certified as of the date hereof by its respective Secretary), all of which copies are complete and correct as of the date hereof.

(c) Corporate Authority . The execution, delivery and performance by Texaco, GOC or GRMC, as appropriate, of this Agreement, the Trademark License Agreement, the Supply Agreement, the Delaware City Handling Agreement, the ECRA Agreement and the Mutual Cancellation Agreement (the Trademark License Agreement, the Supply Agreement, the Delaware City Handling Agreement, the ECRA Agreement and the Mutual Cancellation Agreement, being collectively referred to as the “Related Agreements”), the Assignment and Assumption Agreement, the Deeds (and other instruments of conveyance referred to in Section 4 herein), the Bills of Sale (the Assignment and Assumption Agreement, the Deeds and related instruments of conveyance and the Bills of Sale being col-

lectively referred to as the “Operative Documents”), the Confidentiality Agreement among Buyer, Texaco and GOC, dated February 15, 1984 (the “Confidentiality Agreement”), and the Memorandum of Agreement, including without limitation, the sale, conveyance, assignment, transfer and delivery of the Assets contemplated hereby and thereby, have been duly and effectively authorized by the Boards of Directors (or Executive Committees) of Texaco and of each Member of the GOC Group, as appropriate. No other corporate proceedings on the part of Texaco or any member of the GOC Group are necessary to authorize this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement or the Memorandum of Agreement or the transactions contemplated herein and therein; and this Agreement, the Confidentiality Agreement and the Memorandum of Agreement are, and the Related Agreements and the Operative Documents will be, valid and binding obligations of Texaco, GOC or GRMC, as appropriate. Except as set forth in Exhibit J hereto, neither Texaco nor any member of the GOC Group has any legal obligation, absolute or contingent, to any other person or firm to sell the Assets or to effect any merger, consolidation or other reorganization or to enter into any agreement with respect thereto. Neither the execution and delivery of this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement or the Memorandum of Agreement nor the consummation of the transactions contemplated hereby or thereby nor compliance by Texaco or any member of the GOC

Group with any of the provisions hereof or thereof will (i) violate, or conflict with, or result in a breach of any provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien, security interest, charge or encumbrance upon any of the Assets under, any of the terms, conditions or provisions of the Certificate of Incorporation or By-Laws of Texaco or any member of the GOC Group or any note, bond, mortgage, indenture, deed of trust, license, agreement or other instrument or obligation to which Texaco or any member of the GOC Group is a party, or by which Texaco or any member of the GOC Group or any of the Assets may be bound or affected, except for any such conflict, breach or default heretofore disclosed in writing by Texaco to Buyer as to which requisite waivers or consent shall have been obtained prior to the Closing Date, or (ii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Texaco or any member of the GOC Group or any of the Properties or Assets.

(d) Absence of Undisclosed Liabilities and Obligations . Except to the extent reflected in Exhibit J hereto, Texaco, GOC and GRMC do not have and will not have any liabilities or obligations with respect to the Assets or the Operation (whether accrued, absolute, contingent or

otherwise), which are material to the Operation taken as a whole.

(e) Inventory . The Inventory of the Operation will consist of items of a quality and quantity usable or salable, in the normal course of the Operation’s business. On the Closing Date, the Inventory of the Operation will not be excessive in kind or amount in light of the business of the Operation done or to be done and any increase in such Inventory subsequent to the date hereof will be reasonable and warranted in the ordinary course of business of the Operation.

(f) Title to Properties; Absence of Liens and Encumbrances, etc . Except as otherwise disclosed in Exhibit L hereto, (i) GRMC has title to all the real and personal Properties and Inventory of the Operation, and all the Properties and Inventory are free and clear of all liens, security interests, charges and encumbrances of any nature whatsoever, except such imperfections of title and encumbrances, if any, as do not materially detract from the value, or interfere with the present use, of the Properties of the Operation or otherwise materially impair the business activities of the Operation; (ii) all Leases represented in Exhibit D hereto to be held by GRMC in connection with the Properties or the Operation are valid, binding and in full force and effect in accordance with their terms and neither Texaco nor any member of the GOC Group has any knowledge of any breaches, liens, encumbrances, easements, rights of way,

building or use restrictions, exceptions, reservations or limitations which in any material respect interfere with or impair the present and continued use, possession or quiet enjoyment thereof in the usual and normal conduct of the business of the Operation; (iii) neither Texaco nor any member of the GOC Group has received written notice of violation of any applicable zoning or environmental regulation, ordinance or other law, order, regulation or requirement relating to the operations of, or owned or leased Properties of, the Operation and, so far as known to Texaco or any member of the GOC Group, there is no such violation; and (iv) neither Texaco nor any member of the GOC Group has received any written notice of any pending or threatened condemnation proceedings relating to any of the owned or leased Properties of the Operation.

(g) Lists of Contracts and Other Data . Exhibits A, A-l, B, C, D, E, J, L, M and N hereto contain in all material respects accurate lists of the information purported to be contained therein under this Agreement. Schedules A through M hereto contain in all material respects accurate lists and summary descriptions of the following as they pertain to the Operation:


	(i) Schedule A: all automobiles, trucks and other vehicles (whether owned or leased) used in the Operation, indicating the state of registration and registration number of owned vehicles, and a schedule of all personal property, a list of equipment leases and similar documents and personal property tax returns;

	(ii) Schedule B: all policies of insurance in force with respect to the Operation and


	the Assets, including, without restricting the generality of the foregoing, those covering properties, buildings, machinery, equipment, furniture, fixtures and operations, including the policy numbers, names and addresses of insurers, expiration dates and descriptions as of December 31, 1983;

	(iii) Schedule C: the names of all persons holding powers of attorney to act for the Operation;

	(iv) Schedule D: all computer programs and related software and all management information systems utilised in the Operation, all accounting and data processing systems, including financial information, asset schedule, cash management procedures, bank list, chart of accounts, accounting forms and manuals, including payroll, names of inside and outside auditors and outside bookkeeping and accounting services;

	(v) Schedule E: the volumes of petroleum products (including, without limitation, lubricants and motor oils) sold by the Operation for each of the three years ended December 31, 1983, which information shall be updated to a date which is as close as reasonably practicable to the Closing Date;

	(vi) Schedule F: personnel information regarding the Operation, including organization charts, employee profiles for those employees of GRMC who have consented in writing to the release of their profiles, job descriptions, salaries, terms of employment, employee benefit packages and union agreements;

	(vii) Schedule G: real estate information of GRMC, copies of which are in the possession of Texaco, GOC or GRMC, including title reports, certificates of occupancy, surveys, construction drawings and the terms of all leases or copies thereof;

	(viii) Schedule H: product supply and distribution information, including terminal manuals and procedures, product specifications, packaging agreements for motor oils, lubricants, chemicals and other specialty products sold in service stations, common carrier agreements and rates, distribution procedure manuals and warehousing information;


	(ix) Schedule I: product sales information for the three years ended December 31, 1983, which information shall be updated to a date which is as close as reasonably practicable to the Closing Date, including customer listing by class, credit terms by customer, credit card sales and procedure, advertising information, sales contracts by class and sales volume by customer;

	(x) Schedule J: outside counsel by specialty and location;

	(xi) Schedule K: company operated station information for the three years ended December 31, 1983, which information shall be updated to a date which is as close as reasonably practicable to the Closing Date, including lists of management, other personnel, supply and distribution, money handling procedures, retail pricing policies, operation manuals, and revenues and expenses by station and consolidated for the Operation;

	(xii) Schedule L: information regarding Getty dealer agreements, including lease term expirations, rental and security information and station equipment;

	(xiii) Schedule M: all trademarks and State and Federal applications and registrations thereof, tradenames (except for tradenames employed by dealers or distributors which incorporate the name “Getty” with the permission of GOC or GRMC), copyrights and licenses of trademarks used in, necessary to the conduct of or otherwise relating to the business of the Operation.

(h) Copies of Documents; Other Information . Texaco, GOC and GRMC have previously delivered to Buyer true and complete, in all material respects, copies of all GRMC leases, agreements, contracts, arrangements, plans and other writings referred to in Exhibits D, J, L, M and N hereto and Schedules A through M hereto.

Texaco, GOC and GRMC, jointly and severally, represent and warrant to Buyer that all information, not lim-

ited to the information enumerated above, supplied on or after the date hereof is, or will be, complete and accurate in all material respects as of the date on which such information is furnished.

(i) Intellectual Property Rights . (i) Patents and Technology . Except for proprietary formulations for greases, motor oils and lubricants (which are excluded assets listed in Exhibit E), none of Texaco, GOC or GRMC is aware of any patent (s) or proprietary technical information existing at the Closing Date used in or necessary to continue the conduct of the business of the Operation. Should any such patent(s) or information come to the attention of Texaco or the GOC Group, Texaco agrees to grant, to the extent Texaco has the legal right to do so, to Buyer the right to continue the Operation under such patent rights of the GOC Group and to use solely in the Operation such information of the GOC Group as previously used. No infringement or other proceedings have been instituted against or claims received by Texaco or any member of the GOC Group in respect of the Operation or the Assets, nor does Texaco or any member of the GOC Group have any knowledge of any infringement or claim of infringement based upon a third party patent, patent application, license, invention, trade secret or technical assistance arrangement.

(ii) Trademarks and Copyrights . (A) Except for the trademark “Veedol” which is an excluded asset listed in Exhibit E, Schedule M hereto is a complete list of all

trademarks and State and Federal applications and registrations thereof, tradenames (except for tradenames employed by dealers or distributors which incorporate the name “Getty” with the permission of GOC or GRMC), copyrights and licenses of trademarks used in, necessary to the conduct of or otherwise relating to the business of the Operation (collectively the “Trademarks”); (B) all of the Trademarks are valid and in full force and effect; (C) no infringement or other proceedings have been instituted against, or claims received by, Texaco or any member of the GOC Group with respect to the Trademarks, nor, to the knowledge of Texaco or any member of the GOC Group are any such proceedings relating to the Trademarks threatened alleging any such violation nor does Texaco or any member of the GOC Group know of any basis for any such proceeding or claim; (D) except as set forth in Exhibit M hereto, to the knowledge of Texaco and each member of the GOC Group, there is no infringement of the Trademarks by any third party or adverse claim by any third party to the Trademarks or entitlement of any third party to royalties from the use of the Trademarks; (E) as of the time of the Closing no other party or person other than Texaco or the members of the GOC Group has a right to use the Trademarks; and (F) all of the right and authority of Texaco and each member of the GOC Group to use the Trademarks in the conduct of the Operation’s business is freely and fully licensable by them to Buyer as the purchaser of the Assets and business of the Operation.

(j) Insurance . All policies of insurance (or renewals thereof) set forth in Schedule B hereto are outstanding and duly in force on the date hereof. Such policies (which are excluded assets listed in Exhibit E) insure against such losses and risks as are adequate in the judgment of GRMC to protect the properties and business of the Operation. Neither Texaco nor any member of the GOC Group has received any notice or recommendation from any insurer or agent of such insurer that substantial capital improvements or other expenditures should be made in order to continue such insurance.

(k) Litigation . Except as disclosed in Exhibit M hereto, (i) there is no (A) litigation, proceeding, labor dispute (other than routine grievance procedures), arbitration or government investigation pending or, so far as known to Texaco or any member of the GOC Group, threatened against Texaco or any member of the GOC Group with respect to the business of, or otherwise relating to, (v) the Operation, (w) the Assets, (x) the Trademarks, (y) the transactions contemplated by this Agreement, or (z) personnel employed in the Operation with reference to actions taken by them in such capacities, nor (B) valid basis known to Texaco or any member of the GOC Group for any litigation of the type described in clause (A) above, proceeding or investigation which if adversely determined could, in any one case or in the aggregate, have a material adverse effect on the business of the Operation or the Assets taken as a whole; and

(ii) there are no decrees, injunctions or orders of any court or governmental department or agency outstanding against Texaco or any member of the GOC Group with respect to the business of the Operation.

(1) Compliance with Laws . Texaco and each member of the GOC Group have complied in all material respects with all applicable statutes, regulations, orders, ordinances and other laws of the United States of America and all state and local governments, and agencies of any of the foregoing as they relate in any respect to the Operation or any of the Assets, including the Petroleum Marketing Practices Act (“PMPA”) and any similar state or local government law, regulation or ordinance pertaining to service stations, and the Environmental Cleanup Responsibility Act of New Jersey (“ECRA”). Except as set forth in Exhibit M hereto, neither Texaco, GOC nor GRMC has received any written notice to the effect that, or otherwise been advised in writing that, any one of them is not in compliance with any of such statutes, regulations and orders, ordinances or other laws as they relate in any material respect to the Operation or any of the Assets, taken as a whole, and none has any reason to anticipate that any presently existing circumstances are likely to result in violations of any such regulations which could, in any one case or in the aggregate, have a material adverse effect on the business of the Operation or the Assets, taken as a whole. To the best of Texaco’s, GOC’s and GRMC’s knowledge, except as set forth in Exhibit N hereto,

there is not presently pending any proceeding, hearing or investigation with respect to the adoption of amendments or modifications to existing laws or ordinances, regulations or restrictions with respect to such matters which, if adopted, would materially adversely affect the Assets or present business of the Operation, taken as a whole.

(m) No Brokers . Neither Texaco nor any member of the GOC Group has contacted or had any dealings with or entered into, and will not enter into, any agreement, arrangement or understanding with any broker, leasing agent, finder or similar person or entity with respect to this Agreement and the transaction contemplated herein which will result in the obligation of Buyer or Texaco or any member of the GOC Group to pay any finder’s fee, brokerage commission or similar payment in connection with the transaction contemplated herein.

(n) Transactions with Certain Persons . No officer, director or employee of Texaco or of any member of the GOC Group is presently a party to any transaction with Texaco or any member of the GOC Group relating to the business of the Operation, including without limitation, any contract, agreement or other arrangement (i) providing for the furnishing of services by, (ii) providing for the rental of real or personal property from, or (iii) otherwise requiring payments to (other than for services as officers, directors or employees) any such person or corporation, partnership, trust or other entity in which any such person

has a substantial interest as an officer, director, trustee, partner or shareholder.

(o) Investment Intent. The Subordinated Note is being acquired by GRMC for its account for investment and not with a view to the distribution or resale thereof and may bear customary legends to this effect.

(p) Consents and Approvals . Except in accordance with Sections 10(a) and 11(a) herein and as set forth in Exhibit L hereto, no consent, approval, permission or other authorization of or by, or designation, declaration, filing, registration or qualification with, any Federal or state court, administrative agency or other governmental authority is required on the part of Texaco or any member of the GOC Group in connection with the execution and delivery by Texaco, GOC and GRMC of this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement and Memorandum of Agreement or the consummation of the transactions contemplated hereby and thereby.

(q) No Material Adverse Change . Except for the effect of adverse market conditions in the petroleum industry generally, since December 31, 1983 through the date of this Agreement there has been no material adverse change in the business or financial condition of the Operation, taken as a whole.

(r) Ownership of Assets . GOC has legal title to all of the Trademarks. GRMC has title to all of the Assets, other than the Trademarks, free and clear of all claims,

liens, security interests, charges and encumbrances except as set forth in Exhibit L hereto.

(s) Disclosure . No representation or warranty made by Texaco, GOC or GRMC in this Agreement or as provided herein contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein not false or misleading.

(t) Merger Agreement . The merger provided for in the Merger Agreement dated January 6, 1984 between Texaco and GOC (the “Merger Agreement”) has been completed and a copy of the Merger Agreement has been delivered to Buyer.

7. Representations and Warranties of Buyer . Buyer hereby represents and warrants to Texaco, GOC and GRMC as follows:

(a) Organization and Good Standing of Buyer and the Realty Company . Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. At the Closing, the Realty Company will be a limited partnership duly organized and validly existing under the laws of the State of New York and will be qualified to do business in each state where the ownership of its assets require it to be so qualified.

(b) Certificate of Incorporation and By-laws . Buyer (x) has delivered to Texaco copies of its Certificate of Incorporation (certified as of a recent date by its Secretary) and its By-laws (certified as of the date hereof by its Secretary) and (y), prior to the Closing, will deliver

to Texaco a copy of the Partnership Agreement of the Realty Company (certified as of a recent date by its general partner), all of which copies are complete and correct as of the date of delivery.

(c) Corporate Authority . Buyer has, and to the extent necessary the Realty Company will have, full power and authority, whether corporate or other, to enter into this Agreement, the Related Agreements, the Subordinated Note, the Security Instruments, the Assignment and Assumption Agreement (the Subordinated Mote, the Security Instruments and the Assignment and Assumption Agreement being collectively referred to as “Buyer’s Documents”), the Confidentiality Agreement and the Memorandum of Agreement and to carry out its obligations thereunder; all requisite corporate action has been taken by the Board of Directors of Buyer and all requisite action, will be taken by the Realty Company to authorize the execution, delivery and performance of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement and the Memorandum of Agreement. This Agreement, the Confidentiality Agreement and the Memorandum of Agreement are, and the Related Agreements and Buyer’s Documents, when executed and delivered will be, valid and binding obligations of the Buyer or the Realty Company, as the case may be. Neither the execution and delivery of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement or the Memorandum of Agreement nor the consummation of the transac-

tions contemplated hereby or thereby nor compliance by Buyer or the Realty Company, as the case may be, with any of the provisions hereof or thereof will (i) violate, or conflict with, or result in a breach of any provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien, security interest, charge or encumbrance upon any of the Properties which are subject to the Security Instruments (the “Collateral”) under, any of the terms, conditions or provisions of the Certificate of Incorporation or By-Laws of Buyer or the Partnership Agreement of the Realty Company, as the case may be, or any note, bond, mortgage, indenture, deed of trust, license, agreement or other instrument or obligation by which any of the Collateral may be bound or affected, except for such conflict, breach or default disclosed in writing by Buyer to Texaco as to which requisite waivers or consent shall have been obtained prior to the Closing Date, or (ii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to, or affecting, any of the Collateral.

(d) No Brokers . Neither Buyer nor the Realty Company has contacted or had any dealings with or entered into, and will not enter into, any agreement, arrangement or understanding with any broker, leasing agent, finder or similar person or entity with respect to this Agreement and

the transaction contemplated herein which will result in the obligation of Buyer, Texaco or any member of the GOC Group to pay any finder’s fee, brokerage commission or similar payment in connection with the transaction contemplated herein.

(e) Validity of Liens . The Security Instruments will each create a valid and continuing lien and security interest in the Collateral in favor of GRMC, subject to no other lien, security interest or adverse claim except as described in the Second Mortgages and Deeds of Trust and the PT Leases.

(f) Consents and Approvals . Except in accordance with Sections 10(a) and 11(a) herein and as set forth in Exhibit L hereto, no consent, approval, permission or other authorization of or by, or designation, declaration, filing, registration or qualification with any Federal or state court, administrative agency or other governmental authority is required on the part of Buyer or the Realty Company, as the case may be, or in connection with the execution and delivery of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement or the Memorandum of Agreement or the consummation of the transactions contemplated hereby or thereby.

(g) Financial Statements . Buyer has delivered to Texaco true and complete copies of the following financial statements, each of which has been prepared in accordance with generally accepted accounting principles consistently

applied (except as otherwise stated therein) throughout the periods indicated:


	(i) Consolidated balance sheets of Buyer and its subsidiaries at January 31, 1983 and 1984, certified by Coopers & Lybrand, independent certified public accountants, and at July 31, 1984 each of which fairly presents the consolidated financial position of Buyer and its subsidiaries as of such dates;

	(ii) Consolidated balance sheets of Alpha Portland Industries, Inc. (“Alpha Portland”) and its subsidiaries at December 31, 1982 and 1983, certified by Coopers & Lybrand, independent certified public accountants, and at September 30, 1984 each of which, to the best of Buyer’s knowledge, fairly presents the consolidated financial position of Alpha Portland and its subsidiaries as of such dates;

	(iii) Consolidated statements of income and retained earnings and changes in financial position of Buyer and its subsidiaries for the fiscal years ended January 31, 1982, 1983 and 1984, certified by Coopers & Lybrand, independent certified public accountants, and for the six months ended July 31, 1984 each of which fairly presents the consolidated results of operations of Buyer and its subsidiaries for the fiscal periods then ended; and

	(iv) Consolidated statements of income and retained earnings and changes in financial positon of Alpha Portland and its subsidiaries for the fiscal years ended December 31, 1981, 1982 and 1983, certified by Coopers & Lybrand, independent certified public accountants, and for the nine months ended September 30, 1984 each of which, to the best of Buyer’s knowledge, fairly presents the consolidated results of operations of Alpha Portland and its subsidiaries for the fiscal periods then ended.

(h) No Material Adverse Change . Except for the effect of adverse market conditions in the petroleum industry generally since January 31, 1984 through the date of this Agreement there has been no material adverse change in the business or financial condition of Buyer, its Subsidiar-

ies or, to the best of Buyer’s knowledge, Alpha Portland or its Subsidiaries, taken as a whole.

(i) Disclosure . No representation or warranty made by Buyer in this Agreement or as provided herein contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein not false or misleading.

8. The Closing . (a) Each party agrees that it will promptly begin preparing for Closing by commencing performance of the respective obligations hereunder. At such time that all of the conditions to Closing of this Agreement are fulfilled, the Closing shall be held on a date agreed upon by the parties which shall be on or before January 31, 1985 (the “Closing Date”) effective as of the close of business on the day immediately preceding the Closing Date (the “Closing Time”). If the Closing does not occur by January 31, 1985 by reason of the circumstances set forth in Sections 10(a) or (i) or 11(a) herein, any of the parties may, at its option, at any time up to 15 days prior to January 31, 1985, or such previously extended Closing Date, elect, from time to time, to extend such January 31, 1985 Closing Date to a Closing Date or Dates which in no event shall be later than March 31, 1985.

(b) The Closing shall take place on the Closing Date at such mutually convenient time and place as shall be agreed upon by the parties.

(c) In the event that GRMC cannot transfer the assets comprising its distribution terminal located in Newark, New Jersey (the “Newark Terminal”) to the Buyer or the Realty Company, as the case may be, on the Closing Date because GRMC has not fully complied with ECRA at that time, it is understood and agreed that the parties hereto will enter into the ECRA Agreement and the Newark Terminal shall be so transferred promptly after compliance with ECRA. Until such transfer, Buyer or the Realty Company, as the case may be, shall not pay GRMC that part of the purchase price allocable hereunder to the Newark Terminal, and GRMC shall continue to occupy and operate the Newark Terminal solely for the account of Buyer subject to the terms and conditions of this Agreement and further subject to Buyer reimbursing GRMC for all operating costs it may incur (including customary maintenance costs and real property taxes) from the Closing Date to the transfer date in respect of the Newark Terminal; provided , however , that the Buyer and its agents shall have the right to enter the premises for the purposes of assisting GRMC in such operation and operating Buyer’s business. Except for the foregoing reimbursement obligations, GRMC shall receive no fee for such operation, shall be solely responsible for such operation, and GRMC and the Buyer shall at all times be independent contractors with respect thereto.

9. Certain Covenants . (a) Conduct of the Operation’s Business . (i) Except as disclosed in Exhibit B hereto, from January 1, 1984 through the date of this Agreement, GOC and GRMC have conducted, and Texaco has caused to be conducted, and from the date hereof up to and including the Closing Date, GOC and GRMC shall conduct, and Texaco will cause to be conducted, the business of the Operation only in the ordinary course, and GOC and GRMC will not do or cause to be done, and Texaco will ensure that no party shall do or cause to be done, anything which is represented and warranted not to have been done in this Agreement.

(ii) In addition, GOC and GRMC will not, and Texaco will ensure that GOC and GRMC will not, except as otherwise permitted by this Agreement or consented to in writing by Buyer:


	(A) knowingly fail to comply with any laws, ordinances, regulations or other governmental restrictions applicable in any respect to the Operation or any of the Assets;

	(B) grant any powers of attorney to act for the Operation;

	(C) mortgage or pledge or otherwise encumber any of the Assets;

	(D) sell, assign or transfer any service stations, or any of the other Assets, other than in the ordinary course of business of the Operation or as contemplated by the provisions of Section 1(a)(i) herein;

	(E) cancel or terminate any contract, agreement or other instrument material to the Operation; or

	(F) engage in or enter into any material transaction with respect to the business of the Operation of any nature not expressly provided for


	herein, except transactions in the ordinary course of business and except transactions which do not exceed $10,000 individually or $100,000 in the aggregate.

	(iii) GOC and GRMC shall, and Texaco shall ensure that GOC and GRMC shall, until the Closing Date:

	(A) maintain in full force and effect the insurance policies set forth in Schedule B hereto (or policies providing substantially the same coverage);

	(B) take such action as may reasonably be necessary to preserve the Assets, wherever located, which are material to the business of the Operation, including, without limitation, the distribution terminals owned by GRMC;

	(C) maintain its books and records in accordance with generally accepted accounting principles and in the manner consistent with past practices and promptly advise Buyer in writing of any material adverse change in the condition (financial or otherwise) of the Assets or the Operation; and

	(D) use its best efforts (w) to preserve the business organization of the Operation intact, (x) to continue its operations at its present levels, (y) to keep available to Buyer the services of the Operations personnel and (z) to preserve for Buyer the goodwill of the Operation’s suppliers, customers, creditors and others having business relations with it.

(b) Access to the Operation’s Business; Confidentiality . GOC and GRMC shall furnish, and Texaco shall ensure that GOC and GRMC shall furnish, to Buyer and Buyer’s attorneys, accountants, agents and representatives (“Representatives”) all information Buyer reasonably requests regarding the Operation, including all relevant financial information with respect to the Operation, and shall afford Buyer and its Representatives such opportunities and access, at such times and in such manner as is reasonably acceptable

to Texaco, GOC or GRMC to such books, records, Assets, Properties, and other facilities of the Operation as they may reasonably request to investigate the accuracy and completeness of such information, and Buyer or its Representatives shall have the right to reasonably reproduce any papers in connection with any such examination of the Operation by Buyer or its Representatives; provided , however , that Buyer agrees to hold in strict confidence all such information in accordance with (x) the terms of the Confidentiality Agreement, and (y) the provisions of Paragraph 23 of the Memorandum of Agreement; and provided , that Buyer’s Representatives enter into similar confidentiality agreements at the request of Texaco, GOC or GRMC; and provided , further , that with respect to any such books and records not exclusively related to the Operation, Texaco, GOC or GRMC may make and deliver, and permit inspection of, excerpts of such information as may be reasonably requested by Buyer or its Representatives.

(c) Best Efforts; Mutual Cooperation; Performance . Texaco and GRMC agree to use their respective best efforts (i) to cure title to any of the assets as provided in Section l(c)(i) herein, (ii) to obtain all necessary consents to assignments and transfers pursuant to Section 5 herein, (iii) to conduct the business and provide information to Buyer in accordance with Sections 9(a) and 9(b) herein, and (iv) to assist Buyer, if Buyer elects to hire former GOC Group personnel, pursuant to Section 9(f) herein.

The parties hereto agree that in curing title to assets and obtaining all necessary consents as provided in clauses (i) and (ii) of the preceding sentence, Texaco or GRMC will pay any required amounts up to, but not in excess of, $100,000 in the aggregate. Texaco, GOC and GRMC agree that whenever it is appropriate or necessary for the Realty Company to perform obligations or exercise rights under this Agreement or the Related Agreements other than as set forth in Section 2(a) herein, Buyer will give reasonable written notice thereof to Texaco, GOC or GRMC as may be appropriate and Texaco, GOC and GRMC will accept such performance or honor such exercise; provided that any such performance or exercise will not constitute or be deemed to constitute an assignment of Buyer’s rights and obligations hereunder and if such performance or exercise is not satisfactory, it will not relieve Buyer from any of its obligations or liabilities hereunder or thereunder.

(d) Accounts Receivable . The transaction contemplated by this Agreement does not include the transfer to Buyer by GRMC of the Receivables, other than the Dealer Amortizations, of the Operation which originated on or prior to the Closing Date. However, during the sixty day period commencing on the Closing Date (the “Collection Period”). Buyer agrees to use its best efforts, in accordance with Buyer’s customary collection procedure, and at GRMC’s expense with respect to out-of-pocket costs incurred, to collect on behalf of GRMC the Receivables retained by GRMC

hereunder; provided , however , Buyer shall have no obligation to institute any legal proceedings to collect such Receivables, or to give preference to the collection of the Receivables over the collection of its own accounts receivable. Buyer agrees to pay GRMC on a weekly basis the amount of any and all monies received by Buyer relating to the Receivables retained by GRMC hereunder. At the end of the Collection Period, or such earlier date as may be requested by GRMC, Buyer will return to GRMC all of the Receivables (and related documents) which originated on or prior to the Closing Date and remain uncollected.

(e) Agreements with Franchisees . Buyer agrees that promptly after the Closing it will confirm in writing to each service station dealer or retailer, contract third-party dealer or retailer or jobber or distributor (collectively, “Franchisees”) whose lease, supply contract and/or distributor agreement is assigned to Buyer at the Closing, the continuance of all existing arrangements between GOC and GRMC and the Franchisees which Buyer is assuming under Section 3 herein, including the right to use the Trademarks at each such service station. Buyer further agrees that promptly after the Closing it will also offer in writing to each Franchisee whose lease, supply contract and/or distributor agreement is assigned to Buyer at the Closing, an agreement or contract wherein Buyer will agree and obligate itself to afford to each such Franchisee the same protection and rights currently provided to it as a

franchisee under PMPA, provided that such Franchisee agrees and undertakes to perform all duties and obligations imposed on it as a franchisee under PMPA as if the terms of PMPA were applicable as a matter of law to the relationship existing between Buyer and such Franchisee, and Buyer were a “franchisor” and Franchisee were a “franchisee” as those terms are defined in PMPA. Buyer also agrees that, for purposes of satisfying the requirements of PMPA, GOC end GRMC may permit (x) the Franchisees of the service stations in the Territory which GRMC is retaining pursuant to Section 1(c) herein, and (y), after the transfer of the Trademarks to User pursuant to Paragraph 17 of the Trademark License Agreement, the Franchisees of, or in respect of, service stations in the United States outside the Territory to continue to use the Trademarks under license from Buyer to Texaco, GOC and/or their affiliates on the same terms and conditions as set forth in the Trademark License Agreement until the expiration of each such Franchisees’ respective then current franchise agreement, or such later time as may be required by order of a court of competent jurisdiction (provided that Texaco shall have made a bona fide offer of a Texaco franchise to such Franchisee).

It is understood and agreed that Texaco, GOC and GRMC shall have the right and obligation, in furtherance of Texaco’s obligation to divest under the Consent Decree, not less than 90 days prior to the date the Trademarks are transferred and assigned to Buyer pursuant to Paragraph 17

of the Trademark License Agreement, to send notices of termination to each Franchisee (substantially in the form heretofore delivered by GRMC to Buyer) notifying each Franchisee that such franchise will be terminated effective as of the date the Trademarks are transferred and assigned to Buyer.

Buyer agrees that such notices of termination shall not be construed to be a breach of any obligation owed Buyer under this Agreement or elsewhere. Buyer further understands and agrees that in any legal proceeding which may arise from such notices, Texaco, GOC and GRMC will be bound to abide by any judgment or order in such legal proceeding and Buyer agrees that compliance with such judgment or order shall not be construed to be a breach of any obligation owed Buyer under this Agreement or elsewhere.

(f) Employees . It is understood and agreed that Texaco, GOC and GRMC shall not transfer any employees to Buyer and Buyer shall, pursuant to this Agreement, assume no liabilities or obligations therefor, including, without limitation, no liabilities or obligations with respect to wages, pensions, insurance, vacation, severance or termination pay, withholding or unemployment or other taxes, collective bargaining agreements between Texaco or any member of the GOC Group and any bargaining unit or union representing employees of Texaco or any member of the GOC Group or other employee benefit plans or arrangements. Texaco, GOC and GRMC will use reasonable efforts to assist Buyer in the event that Buyer elects to hire any personnel who previously

were employed by any of the members of the GOC Group. It is further understood and agreed that the currently existing arrangements with respect to the loan of GRMC’s personnel to Buyer will continue until the Closing Date, provided that Buyer continues to reimburse GRMC in the manner previously agreed upon.

(g) Antitrust Compliance . Each of GOC, GRMC and Buyer agrees to use, and if required, Texaco shall cause GOC and GRMC to use, its best efforts to comply as promptly as practicable with all statutes administered by, and the rules and regulations of, the FTC and the United States Department of Justice in connection with the transaction contemplated by this Agreement, including complying as promptly as practicable with any requests for information. Without limiting the foregoing, Buyer and Texaco agree to use their respective best efforts to have Buyer approved by the FTC as the purchaser of the Operation under the Consent Decree.

(h) Negotiations With Third Parties . The parties have incurred and will incur by the nature of the negotiations and investigations regarding this Agreement and the Memorandum of Agreement substantial expenses with respect to the subject matter of this Agreement. Accordingly, Texaco, GOC and GRMC represent and warrant to Buyer that they have ceased, and agree that they will not commence, negotiating with other third parties for the sale of any or all of the Operation. Texaco, GOC and GRMC further agree not to solicit any inquiries or proposals from, or to negotiate with,

or provide any information to, any other person, firm or corporation relating to the sale of any or all of the Operation.

(i) Use of Trademark . Texaco, GOC and GRMC consent to the use of the Trademarks as provided in the Trademark License Agreement. Texaco, GOC and GRMC also consent to the use by Buyer, and by one or more corporations or unincorporated divisions which may be organized by Buyer, and agree to cooperate with Buyer in obtaining the use, of one or more corporate, divisional or partnership names containing the word “GETTY” to the extent permitted by Paragraph 18 of the Trademark License Agreement. Further, Texaco, GOC and GRMC agree not to use the Trademarks in any petroleum marketing or refining operations in the jurisdictions enumerated in Paragraph 1 of the Trademark License Agreement, including, without limitation, in the Delaware Refinery, except such use as is allowed by Section 9(e) herein.

(j) Conduct of Buyer’s Business . Buyer agrees that, from the date hereof up to and including the Closing Date, Buyer will not merge, consolidate, reorganize, liquidate or dissolve or enter into any agreement with respect thereto.

(k) Notice of Material Adverse Change in Buyer’s Business . Buyer will notify Texaco of any event (other than changes in general economic conditions or changes generally affecting the petroleum industry) from and after the date

hereof up to and including the Closing Date, which, in Buyer’s good faith and reasonable judgment, materially adversely affects the business of Buyer and its subsidiaries, taken as a whole.

(l) Notice of Material Adverse Change in the Operation . Texaco, GOC and GRMC will each notify Buyer of any event (other than changes in general economic conditions or changes generally affecting the petroleum industry) from and after the date hereof up to and including the Closing Date, which, in their good faith and reasonable judgment, materially adversely affects the business of the Operation.

(m) Powers of Attorney . At or prior to the Closing, all powers of attorney relating to the Operation shall be revoked by their terms or Texaco, GOC or GRMC shall revoke them or cause them to be revoked.

(n) Removal of Excluded Assets . Buyer agrees that GRMC shall have 90 days after the Closing Date to remove any of the excluded assets listed on Exhibit E from the Properties. Such removals shall be done only upon reasonable advance notice to Buyer and during normal business hours. Texaco agrees to indemnify Buyer pursuant to Section 13(b) herein for any damages caused by GRMC or its agents by or during such removals. In the event that such excluded assets are not removed during such ninety (90) day period, such excluded assets will thereafter become the property of Buyer without any adjustment to the final purchase price under this Agreement.

(o) No Franchise Created; Mutual Cancellation Agreement . The parties further understand and agree that none of them has any intention or desire to create any franchise relationship between Texaco, GOC or GRMC and Buyer that is subject to the provisions of the PMPA or any similar state or local government law, regulation or ordinance by virtue of entering into this Agreement, the Trademark License Agreement, the Supply Agreement, or any other agreement among the parties; provided , however , that nothing herein shall terminate, amend, affect or alter the existing agreements between Texaco and Leemilts Petroleum, Inc. The foregoing sentence is not intended by the parties hereto to affect any rights of Franchisees under PMPA or any similar state or local government law, rule or regulation. The parties further understand and agree that the transfer of the Trademarks to Buyer pursuant to Paragraph 17 of the Trademark License Agreement will be, and it is their intention to construe it as, an event which would make termination of any franchise or franchise relationship between the parties reasonable if it were ever determined by a court of competent jurisdiction that such relationship arose.

In furtherance of the foregoing, the parties agree that not more than 12 days and not less than 8 days prior to the transfer of the Trademarks pursuant to Paragraph 17 of the Trademark License Agreement, the parties and the Realty Company shall enter into a mutual cancellation of any and all franchise and/or franchise relationship rights among the

parties and the Realty Company. The effective date of such mutual cancellation shall be the date on which the Trademarks are transferred and assigned to Buyer pursuant to Paragraph 17 of the Trademark License Agreement. The mutual cancellation agreement shall be substantially in the form of Exhibit O hereto (the “Mutual Cancellation Agreement”).

(p) Maintenance Support . Provided that Buyer is not in default under this Agreement or any of the Related Agreements, GRMC agrees that it will pay Buyer amounts up to and including $560,000 per year for each of the first three years after the Closing Date in maintenance support for the service stations and distribution terminals (including all related equipment) transferred to Buyer under this Agreement. Such maintenance support shall be paid promptly by GRMC against third-party vendor invoices for work actually performed, materials or supplies used or equipment repaired or installed at such service stations and distribution terminals (including all related equipment).

(q) Financial Information . From and after the date hereof and until such time as the Subordinated Note shall have been paid in full, Buyer will provide Texaco with copies of all (i) reports and other financial information filed by it after the date hereof with the Securities and Exchange Commission pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, and (ii) (x) unaudited financial statements of the Realty Company within 45 days after the end of each fiscal quarter of the Realty Company

and (y) audited (by Coopers & Lybrand or other nationally recognized firm of independent certified public accountants) financial statements of the Realty Company within 90 days after the end of each fiscal year of the Realty Company.

10. Conditions to Obligations of Buyer . The obligation of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or the waiver by Buyer, on or prior to the Closing Date, of the following conditions:

(a) Antitrust Compliance . Buyer shall have been approved by the FTC as the purchaser of the Operation under the Consent Decree. No preliminary or permanent injunction, court order, order issued by or consent decree entered into with the FTC, or other regulatory restraint shall be in effect which prevents Texaco, any member of the GOC Group or Buyer from performing any of its obligations hereunder and, after reasonably diligent efforts to remove same, remains in effect at the Closing Date, as it may be extended pursuant to Section 8 herein.

(b) Approvals and Consents . Except as set forth in Exhibit L hereto, Texaco, GOC and GRMC shall have obtained all requisite approvals and consents from governmental or regulatory bodies or agencies or pursuant to leases, mortgages, contracts, agreements, permits or licenses for the transfer of the Assets to Buyer in the manner contemplated by this Agreement.

(c) Trademarks . Buyer shall be satisfied that there are no material limitations on Buyer’s ability to use the Trademarks after the Closing in the manner contemplated by the Trademark License Agreement in the jurisdictions enumerated therein.

(d) PMPA Compliance . Buyer shall be satisfied that the parties have complied with the PMPA and any other similar state or local government law, regulation or ordinance pertaining to service stations.

(e) Representations and Warranties True at the Closing Date . The representations and warranties of Texaco, GOC and GRMC contained in this Agreement shall be deemed to have been made again on and as of the Closing Date and shall then be true and correct in all material respects, and on the Closing Date, each of Texaco, GOC and GRMC shall have delivered to Buyer a certificate to such effect signed by the Vice Chairman of the Board and by the principal financial officer in the case of Texaco, and by the President or any Vice President and the principal financial officer in the case of GOC and GRMC.

(f) Performance by Texaco, GOC and GRMC . Each of the obligations of Texaco, GOC and GRMC to be performed by them on or before the Closing Date, pursuant to the terms of this Agreement, shall have been duly performed by the Closing Date and, on the Closing Date, each of Texaco, GOC and GRMC shall have delivered to Buyer a certificate to such effect signed by the Vice Chairman of the Board and by the

principal financial officer in the case of Texaco, and by the President or any Vice President and the principal financial officer in the case of GOC and GRMC.

(g) Authority . All action required to be taken by, or on the part of, Texaco or any member of the GOC Group to authorize the execution, delivery and performance of this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement and the Memorandum of Agreement and the consummation of the transaction contemplated hereby and thereby shall have been duly and velidly taken by the Boards of Directors (or Executive Committees) of Texaco and the members of the GOC Group, as appropriate.

(h) Opinion of Texaco’s Counsel . There shall have been delivered to Buyer an opinion of Arthur G. Taylor, Esq., a General Attorney of Texaco, dated the Closing Date and addressed to Buyer, to the effect that:


	(i) Texaco, GOC and GRMC are each corporations duly organized, validly existing and in good standing under the laws of the State of Delaware and have corporate power to carry on the business of the Operation as it is then being conducted (including the power to own or lease the Assets);

	(ii) Texaco and each member of the GOC Group, as appropriate, have full corporate power and authority to enter into this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement and the Memorandum of Agreement and to carry out their respective obligations thereunder; the execution, delivery and performance of this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement and the Memorandum of Agreement by Texaco and by each member of the GOC Group, as appropriate, including without limitation the sale, conveyance, assignment, transfer and delivery of the Assets as provided herein and therein, have been duly authorized and approved by all


	requisite corporate action of Texaco and of each member of the GOC Group, as appropriate, and, this Agreement, the Related Agreements (other than the Mutual Cancellation Agreement), the Operative Documents, the Confidentiality Agreement and the Memorandum of Agreement have been duly executed and delivered by Texaco and by each member of the GOC Group, as appropriate, pursuant to such authorization and constitute valid and binding obligations of Texaco and of each member of the GOC Group, as appropriate, enforceable in accordance with their respective terms;

	(iii) Neither the execution and delivery of this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement or the Memorandum of Agreement nor the consummation of the transactions contemplated hereby or thereby nor compliance by Texaco or any member of the GOC Group with any of the provisions hereof or thereof will (x) violate or conflict with, or result in a breach of any provisions of the Certificate of Incorporation or By-laws of Texaco or any member of the GOC Group, (y) to the best of such counsel’s knowledge, violate, conflict with, result in a breach of any provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of, any lien, security interest, charge or encumbrance upon any of the Assets under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license, agreement or other instrument or obligation of which such counsel has knowledges to which Texaco or any member of the GOC Group is a party, or by which Texaco or any member of the GOC Group or any of the Assets may be bound or affected, except for any such conflict, breach or default heretofore disclosed in writing by Texaco to Buyer as to which requisite waivers or consents (specifying such waivers or consents) shall have been obtained by Texaco or any member of the GOC Group by the Closing Date, or (z) violate any order, writ, injunction or decree, of which such counsel has knowledge, or any statute, rule or regulation applicable to Texaco or any member of the GOC Group, the Operation or any of the Assets;

	(iv) To the best of such counsel’s knowledge, the Assets are free and clear of any and all liens and encumbrances except as otherwise disclosed in Exhibit L hereto;


	(v) Except as otherwise disclosed in Exhibit M hereto, such counsel does not know of any litigation, proceeding, labor dispute (other than routine grievance procedures) arbitration or governmental investigation pending or threatened against Texaco or any member of the GOC Group with respect to the business of, or otherwise relating to, the Operation, or the Assets, or the transaction contemplated by this Agreement, or Operation personnel in reference to actions taken by them in such capacities or of any legal impediment to the operation of the Properties and business of the Operation in the ordinary course;

	(vi) The Deeds, Bills of Sale and other instruments of conveyance and transfer referred to in Section 4 herein are valid in accordance with their terms and effectively vest in Buyer or the Realty Company good title in and to the Assets, free and clear of all liens, claims and security interests whatsoever, except as disclosed in Exhibit L hereto (assuming that Buyer or the Realty Company has no actual knowledge of any adverse claims to the Assets and that Buyer or the Realty Company is duly authorized and empowered to accept title to the Assets);

	(vii) The merger provided for in the Merger Agreement has been completed; and

	(viii) No consent, approval, permission or other authorization of or by, or designation, declaration, filing, registration or qualification with any Federal or state court, administrative agency or other governmental authority is required on the part of Texaco or any member of the GOC Group in connection with the execution and delivery by Texaco GOC or GRMC of this Agreement, the Related Agreements, the Operative Documents, the Confidentiality Agreement and the Memorandum of Agreement or the consummation of the transactions contemplated hereby and thereby.

The opinion of Texaco’s counsel may (x) rely on the opinion of GOC’s counsel as to matters involving GOC or any member of the GOC Group, (y) be given subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors’ rights generally, and (z) be limited to the extent

that enforcement may be affected by the availability of equitable remedies or the applicability of principles of equity. In addition, any matters as to which Texaco’s counsel is required to state an opinion based on his knowledge shall be made after due inquiry of the legal staff of Texaco and of the legal staff of each member of the GOC Group.

(i) Litigation . No claim, action, suit, investigation or other proceeding shall be pending or threatened before any court or governmental agency challenging the purchase of the Assets by Buyer or which may in the reasonable judgment of Buyer otherwise affect Buyer, the Assets or the Operation in a manner which is materially adverse.

(j) No Material Adverse Changes or New Facts . There shall not, in Buyer’s judgment, have been since December 31, 1983 any development which materially adversely affects, or is reasonably likely to materially adversely affect, the Assets or the Operation (other than changes in general economic conditions or changes generally affecting the petroleum industry). Neither shall Buyer have discovered any fact which in its judgment materially and adversely affects the Operation or the Properties taken as a whole and not disclosed to it pursuant to this Agreement.

(k) Assets . GRMC or GOC shall have title to all of the Assets, free and clear of all claims, liens, security interests, charges and encumbrances except as set forth in Exhibit L hereto. The Deeds, Bills of Sale and other instruments of conveyance and transfer referred to in Section

4 herein shall have been duly and validly executed and delivered and shall effectively vest in Buyer or the Realty Company, as the case may be, title to all of the Assets free and clear of any lien, security interest or encumbrance, except as set forth in Exhibit L hereto.

(1) Forms of Documents . Buyer shall have approved the forms of the Operative Documents, the Subordinated Note and the Security Instruments, which approval shall not be unreasonably withheld.

11. Conditions to Obligations of Texaco, GOC and GRMC . The obligations of Texaco, GOC and GRMC to consummate the transaction contemplated hereby shall be subject to the fulfillment, or the waiver by Texaco, GOC and GRMC on or prior to the Closing Date, of the following conditions:

(a) Antitrust Compliance . No preliminary or permanent injunction, court order, order issued by or consent decree entered into with the FTC, or other regulatory restraint shall be in effect which prevents Texaco, any member of the GOC Group or Buyer from performing any of its obligations hereunder and, after reasonably diligent efforts to remove same, remains in effect at the Closing Date, as it may be extended pursuant to Section 8 herein.

(b) Representations and Warranties True at the Closing Date . The representations and warranties of Buyer contained in this Agreement shall be deemed to have been made again at and as of the Closing Date and shall then be true and correct in all material respects, and on the Clos-

ing Date, Buyer shall hava delivered to Texaco a certificate to such effect, signed by its President and by its Chief Financial Officer.

(c) Buyer’s Performance . The Realty Company shall have executed the acknowledgment on the last page of this Agreement; and Buyer or the Realty Company, as the case may be, shall on the Closing Date pay to GRMC the purchase price for the Assets as provided in Section 2 herein and shall assume all of the obligations to be assumed by it pursuant to Section 3 herein.

(d) Authority . All action required to be taken by, or on the part of, Buyer or the Realty Company to authorize the execution, delivery and performance of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement and the Memorandum of Agreement by it, and the consummation of the transaction contemplated hereby and thereby shall have been duly and validly taken by the Board of Directors of Buyer or the general partners of the Realty Company.

(e) Opinion of Buyer’s Counsel . There shall have been delivered to Texaco an opinion of Buyer’s counsel, Messrs. Dewey, Ballantine, Bushby, Palmer & Wood, dated the Closing Date and addressed to Texaco, GOC and GRMC, to the effect that:


	(i) Buyer is a corporation duly organized and existing and in good standing under the laws of the State of Delaware;


	(ii) The Realty Company is a limited partnership duly organized and validly existing under the laws of the State of New York;

	(iii) Buyer and the Realty Company each has, as necessary, full power and authority to enter into this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement and the Memorandum of Agreement and to carry out their obligations thereunder; all requisite corporate action has been taken by the Board of Directors of Buyer and by the general partners of the Realty Company, as the case may be, to authorize the execution, delivery and performance of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement and the Memorandum of Agreement by Buyer or the Realty Company, as the case may be, and, this Agreement, the Related Agreements (other than the Mutual Cancellation Agreement), Buyer’s Documents, the Confidentiality Agreement and the Memorandum of Agreement have been executed and delivered by Buyer or the Realty Company, as the case may be, pursuant to such authorization and constitute the valid and binding obligation of Buyer or the Realty Company, as the case may be, enforceable in accordance with their respective terms;

	(iv) Neither the execution and delivery of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement and the Memorandum of Agreement nor the consummation of the transactions contemplated hereby and thereby nor compliance by Buyer or the Realty Company with any of the provisions hereof or thereof will (x) violate, or conflict with, or will result in a breach of any provisions of the Certificate of Incorporation or By-laws of Buyer or, if applicable, the Partnership Agreement of the Realty Company, (y) to the best of such counsel’s knowledge, violate, conflict with, result in a breach of any provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in the creation of any lien, security interest, charge or encumbrance upon any of the Collateral under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, license agreement or other instrument or obligation known to such counsel by which any of the Collateral may be bound or affected, except for such conflict, breach or default disclosed in writing by Buyer to


	Texaco as to which requisite waivers or consents (specifying such waivers or consents) shall have been obtained by the Closing Date, or (z) violate any order, writ, injunction or decree, of which such counsel has knowledge, or any statute, rule or regulation applicable to, or affecting, any of the Collateral;

	(v) The Security Instruments create a valid and continuing lien and security interest in the Collateral in favor of GRMC, subject to no other lien, security interest or adverse claim except as described in the Second Mortgages and Deeds of Trust; and

	(vi) No consent, approval, permission or other authorization of or by, or designation, declaration, filing, registration or qualification with any Federal or state court, administrative agency or other governmental authority is required on the part of Buyer or, as applicable, the Realty Company in connection with the execution and delivery of this Agreement, the Related Agreements, Buyer’s Documents, the Confidentiality Agreement or the Memorandum of Agreement by the Buyer or the consummation of the transactions contemplated hereby and thereby.

The opinion of Buyer’s counsel may (y) be given subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforceability of creditors’ rights generally, and (z) be limited to the extent that enforcement may be affected by the availability of equitable remedies or the applicability of principles of equity.

(f) Forms of Documents . Texaco and GRMC shall have approved the forms of the Operative Documents, the Subordinated Note, the Security Instruments and the PT Leases, which approval shall not be unreasonably withheld.

12. Bulk Sales Act . The parties hereby waive compliance with the provisions of any applicable bulk sales

laws, including Article 6 of the Uniform Commercial Code. Texaco, GOC and GRMC, jointly and severally, agree to indemnify and hold harmless Buyer and the Realty Company from and against any and all losses, claims, demands, damages, costs and expenses (including reasonable attorneys’ fees) of every kind, nature, or description, arising out of or resulting from any failure to comply with any applicable bulk sales law. Buyer shall give Texaco notice of any such claim for indemnification in accordance with Section 13(e) herein.

13. Nature and Survival of Representations; Indemnification; etc .

(a) Nature and Survival of Covenants, Representations and Warranties . All statements contained in any Schedule or Exhibit hereto or in any certificate or instrument of conveyance delivered by or on behalf of Texaco, GOC and GRMC pursuant to this Agreement or in connection with the transaction contemplated hereby, except for covenants, shall be deemed representations and warranties by Texaco, GOC and GRMC hereunder. All covenants, representations and warranties of Texaco, GOC and GRMC made in this Agreement shall survive the Closing Date, notwithstanding any investigation at any time made by or on behalf of Buyer, except that all representations and warranties will terminate two years after the Closing Date.

All statements contained in any Schedule or Exhibit hereto or in any certificate or instrument of conveyance delivered by or on behalf of Buyer pursuant to this Agreement or in connection with the transaction contemplated

hereby, except for covenants, shall be deemed representations and warranties by Buyer hereunder. All covenants, representations and warranties of Buyer made in this Agreement shall survive the Closing Date, notwithstanding any investigation at any time made by or on behalf of Texaco, GOC and GRMC, except that all representations and warranties will terminate two years after the Closing Date.

(b) Agreement by Texaco, GOC and GRMC to Indemnify . In addition to indemnifying Buyer and the Realty Company in accordance with Sections 9(n) or 12 herein, Texaco, GOC and GRMC, jointly and severally, agree, as part of the consideration for the transaction which is the subject of this Agreement, to indemnify and hold harmless Buyer and the Realty Company from and against any and all claims, demands or causes of action and any liability, cost, expense (including but not limited to reasonable attorney’s fees and expenses incurred in defense of Buyer and the Realty Company), damage or loss which may be asserted by Buyer and the Realty Company or any other party or parties, on account of acts or omissions on the part of Texaco or any member of the GOC Group in respect of the Operation on or prior to the Closing Date, including, without limitation, (x) any loss due to any breach of a representation, warranty or covenant hereunder, (y) any loss on account of personal injury or death or property damage caused by or arising out of any event or occurrence happening on or prior to the Closing Date at the Operation, and (z) any loss resulting from any event, occurrence, condition or state of repair at the Oper-

ation which came into existence before the Closing Date, resulting from, but not limited to, the personal property, fixtures, equipment, underground storage tanks and connecting piping whether above or below ground, or any use thereof; provided , that Buyer and the Realty Company shall not be indemnified by Texaco, GOC or GRMC with respect to any claims asserted against Buyer and the Realty Company or by Buyer and the Realty Company against Texaco, GOC or GRMC more than one year after the Closing Date regarding leaks or seepage from underground tanks or connecting piping whether above or below ground. Notwithstanding the indemnification by Texaco, GOC and GRMC set forth in the preceding sentence with respect to damage caused by underground storage tanks or connecting piping, whether above or below ground, Buyer agrees that it will be responsible for the repair or replacement of all equipment purchased pursuant to this Agreement, including without limitation underground storage tanks and connecting piping, whether above or below ground, which require repair or replacement after the Closing. Buyer agrees that it will not assert any claims (other than claims for indemnification hereunder) or causes of action against Texaco or the GOC Group for leaking tanks or piping or underground leaks, unless Texaco fails to abide by and perform the foregoing indemnification. It is understood and agreed that the foregoing indemnification shall include any claims or proceedings asserted by the U.S. Environmental Protection Agency where the contamination of gasoline (or allegation

thereof) was caused by Texaco’s, GOC’s or GRMC’s acts or omissions.

Texaco, GOC and GRMC, jointly and severally, also agree to indemnify and hold harmless Buyer and the Realty Company with respect to costs, expenses (including, but not limited to, reasonable attorney’s fees and expenses incurred in defense of Buyer and the Realty Company), judgments, assessments and other losses incurred by Buyer and the Realty Company as a result of non-compliance (or alleged non-compliance) by Texaco or any member of the GOC Group in respect of the Operation prior to the Closing with PMPA or other similar state or local government law, regulation or ordinance pertaining to service stations; provided , however, that when such alleged non-compliance is a result of the transaction which is the subject of this Agreement, the Buyer and the Realty Company shall be indemnified pursuant to Sections 13(d) or (f) herein.

(c) Buyer’s Agreement to Indemnify . Buyer agrees, as a part of the consideration for the transaction which is the subject of this Agreement, to indemnify and hold harmless Texaco, GOC and GRMC from and against any and all claims, demands or causes of action and any liability, cost, expense (including but not limited to reasonable attorney’s fees and expenses incurred in defense of Texaco, GOC and GRMC), damage or loss which may be asserted by Texaco, GOC or GRMC or any other party or parties, on account of Buyer’s or the Realty Company’s acts or omissions

in respect of the Operation (including, without limitation, acts or omissions of Franchisees who use the Trademarks through Buyer) after the Closing Date, including, without limitation, (x) any loss due to any breach of a representation, warranty or covenant hereunder, (y) any loss on account of personal injury or death or property damage caused by or arising out of any event or occurrence happening after the Closing Date at the Operation, and (z) any loss resulting from any event, occurrence, condition or state of repair at the Operation which came into existence after the Closing Date resulting from, but not limited to, the personal property, fixtures, equipment, underground storage tanks and connecting piping, whether above or below ground, or any use thereof. It is understood and agreed that the foregoing indemnification shall include any claims or proceedings asserted by the U.S. Environmental Protection Agency where the contamination of gasoline (or allegation thereof) was caused by Buyer or the Realty Company’s acts or omissions.

Buyer also agrees to indemnify and hold harmless Texaco, GOC and GRMC with respect to costs, expenses (including, but not limited to, reasonable attorney’s fees and expenses incurred in defense of Texaco, GOC and GRMC), judgments, assessments and other losses incurred by Texaco, GOC or GRMC as a result of acts or omissions resulting in non-compliance (or alleged non-compliance) by the Buyer or the Realty Company in respect of the Operation after the Closing Date (other than as a result of the transaction

which is the subject of this Agreement) with PMPA or other similar state or loca1 government law, regulation or ordinance pertaining to service stations. For purposes of this paragraph “acts or omissions” shall be deemed to also include “termination or “non-renewal” (and allegations thereof) as such terms are used in PMPA, but shall not be deemed to include any situation where Buyer or the Realty Company has offered to renew a “franchise” (as such term is used in PMPA) in the manner prescribed by PMPA. Further, Buyer and the Realty Company agree that in the event that their acts or omissions are determined by a court of competent jurisdiction to be the event which resulted in the “termination” or “non-renewal,” the foregoing indemnification will apply notwithstanding the fact that it was also alleged that the transaction which is the subject of this Agreement also constituted a violation of PMPA, unless a court of competent jurisdiction shall determine that the transaction which is the subject of this Agreement also constituted a violation of PMPA, in which event Buyer and Texaco (or GRMC, as the case may be) shall share equally in the aforesaid costs, expenses, judgments, assessments and other losses.

(d) Indemnity Relating to the Transaction which is the Subject of this Agreement . Texaco, GOC and GRMC, jointly and severally, also agree to indemnify and hold harmless Buyer and the Realty Company with respect to their costs, expenses (excluding attorney’s fees and expenses

incurred in defense of Buyer and the Realty Company which shall be borne by Buyer and the Realty Company), judgments, assessments and other losses incurred by Buyer and the Realty Company as a result of non-compliance (or alleged non-compliance) by Texaco or any member of the GOC Group as a result of the transaction which is the subject of this Agreement with PMPA or other similar state or local government law, regulation or ordinance pertaining to Franchisees. Notwithstanding the foregoing, Buyer agrees that it shall be liable for 10% of the judgments, assessments, settlements and other losses enumerated in the preceding sentence (whether arising out of individual actions hereunder or class actions as set forth in Section 13(f) herein), but such liability shall not exceed in the aggregate $1 million; provided , however , that the attorneys’ fees and expenses of Buyer and the Realty Company in connection therewith shall not be included in such $1 million. The parties agree that the foregoing indemnification applies only to claims or causes of action asserted by third parties against Buyer or the Realty Company and that Texaco, GOC and GRMC shall not be responsible to Buyer or the Realty Company for the consequences of any injunctive relief therefrom, including, without limitation, any order or requirement that Buyer or the Realty Company divest itself of any of the assets acquired hereunder, except as and to the extent provided in Section 2(d) herein. Buyer agrees, on behalf of itself and the Realty Company, that it will not assert any claims (other

than claims for indemnification hereunder) or causes of action against Texaco or the GOC Group for violation of PMPA or other similar state or local government law, regulation or ordinance pertaining to service stations arising out of the transaction which is the subject of this Agreement, unless Texaco fails to comply with Section 2(d) herein or fails to abide by or comply with the foregoing indemnification.

(e) Defense; Notice of Claims . Except as provided in Sections 13(d) or (f) herein, each party shall retain its own counsel and defend itself, subject to being reimbursed by the indemnifying party for reasonable attorneys’ fees and expenses pursuant to this Section 13. The indemnified party agrees to give the indemnifying party thirty (30) days written notice of any action, suit, proceeding or discovery of fact upon which the indemnified party intends to base a claim for indemnification (“Claim”) under Sections 9(n) or 12 or subsections (b), (c) and (d) of this Section 13. Failure by the indemnified party to notify the indemnifying party shall relieve the indemnifying party from any liability under this Agreement to the indemnified party with respect to such a Claim. Except as provided in Sections 13(d) or (f) herein, the indemnifying party shall have the right to participate jointly with the indemnified party in the indemnified party’s defense of any claim, demand, lawsuit or other proceeding in connection with which indemnification is claimed hereunder. With respect to any

issue involved in such claim, demand, lawsuit or other proceeding as to which the indemnifying party shall have acknowledged in writing the obligation to indemnify the indemnified party hereunder, the indemnifying party shall have the sole right to settle or otherwise dispose of such claim, demand, lawsuit or other proceeding on such terms as the indemnifying party, in its sole discretion, shall deem appropriate. In addition, the parties agree to cooperate in any defense or settlement and to give each other full access to all information relevant thereto.

(f) PMPA Class Action . Texaco, GOC and GRMC shall, jointly and severally, assume the defense of any cause of action brought by any one or more Franchisees alleging a class action asserting violations of, or rights under, PMPA or other similar state or local government law, regulation or ordinance pertaining to service stations. Buyer and the Realty Company shall have the right to participate in such defense, but they shall bear the costs (including attorneys’ fees and expenses) of their participation and such costs shall not be included in the $1 million referred to in Section 13(d) herein. Texaco, GOC and GRMC, as the indemnifying parties, shall have all of the rights set forth in the penultimate sentence of Section 13(e) herein.

(g) Liability Threshold and Right of Set-Off . Notwithstanding anything to the contrary set forth in this Agreement, neither Texaco, GOC or GRMC, nor Buyer or the

Realty Company shall be liable under Section 12 or Subsections (b), (c) and (d) of this Section 13 as a result of any acts or omissions (other than non-compliance with PMPA or other similar state or local government law, regulation or ordinance pertaining to service stations) in respect of the Operation or as a result of the transaction which is the subject of this Agreement except to the extent that the liabilities, costs, expenses (including but not limited to the reasonable attorneys’ fees and expenses incurred in defense of the other party or parties) damages, losses, judgments or assessments incurred by the other party or parties as a result of such acts or omissions shall exceed in the aggregate $100,000.

The obligation of any party to indemnify another party under Section 12 or Subsections (b), (c) and (d) of this Section 13 is subject to the indemnifying party’s right to deduct and withhold, by way of set-off, from the payment of any money due the indemnified party, the amount of money by which the indemnified party is in default of payment to the indemnifying party under this Agreement or any one or more of the Related Agreements; provided , however , that both the claim for and the amount of payment are undisputed between the parties.

(h) Standard of Materiality . For purposes of the representations and warranties of Texaco, GOC and GRMC made in this Agreement, transactions or events shall be deemed to be material with respect to the business of the Operation or

the Assets, taken as a whole, if Buyer or the Realty Company would have a claim for indemnity under Sections 12 or 13 herein (without giving effect to the threshold limitation of Section 13(g) herein) with respect to transactions or events which exceed $10,000 individually or $100,000 in the aggregate.

14. Related Agreements . At the Closing, the appropriate parties will enter into the Trademark License Agreement, the Supply Agreement and the Delaware City Handling Agreement and, if required, the ECRA Agreement as set forth below.

(a) Trademark License Agreement . At the Closing, Texaco, GOC and Buyer shall enter into a Trademark License Agreement substantially in the form of Exhibit P hereto (the “Trademark License Agreement”) in respect of the Trademarks, including, without limitation, the trade name and trademark “Getty” or any variation thereof or combination of words therewith and as otherwise described in the Trademark License Agreement.

(b) Supply Agreement and Delaware City Handling Agreement . At the Closing, Buyer and Texaco shall enter into a Product Supply Agreement substantially in the form of Exhibit Q hereto (the “Supply Agreement”) and related Delaware City Handling Agreement substantially in the form of Exhibit R hereto (the “Delaware City Handling Agreement”) pursuant to which Texaco agrees that for a period of three years after the Closing, it will sell to Buyer, at Buyer’s

option, up to (i) 22 million barrels per annum of Buyer’s requirements for gasoline products for the Operation, and (ii) 11 million barrels per annum of Buyer’s requirements for middle distillate petroleum products for the Operation.

It is understood and agreed that the prices (and other terms and conditions) to be paid by Buyer for petroleum products to be sold by Texaco under the Supply Agreement for three years were negotiated as part of the total consideration to be paid by Buyer for the Assets to be transferred to Buyer pursuant to this Agreement and that Texaco would not offer such petroleum product prices (and other terms and conditions) for such a lengthy period of time except in the context of the transaction which is the subject of this Agreement. It is also understood and agreed that Texaco’s supply obligation to Buyer under this Agreement and under the Supply Agreement is only for the aforesaid three year term. If Buyer has not obtained alternative sources of supply after the aforesaid three year term of the Supply Agreement, Texaco shall have no obligation to provide petroleum products to Buyer at any price after the expiration of the aforesaid three year term. Buyer agrees to waive, and does hereby waive, any claim that it may have to have petroleum products supplied to it after the aforesaid three year term. Buyer further understands and agrees that if, for any reason, Texaco should at any time enter into negotiations to supply Buyer after the expiration of the Supply Agreement, Buyer shall not assert any right to a

price calculated in the manner set forth in the Supply Agreement. The parties agree that this paragraph is not intended to, and does not, apply to any supply arrangements between Texaco and Leemilts Petroleum, Inc.

In furtherance of the foregoing, Buyer covenants with Texaco, GOC and GRMC that Buyer will not bring an action in any court or claim before any regulatory agency asserting any rights against Texaco, GOC or GRMC to purchase petroleum products from Texaco, GOC or GRMC after the expiration of the aforesaid three year period.

(c) ECRA Agreement . At the Closing, Texaco, GRMC, Buyer and the Realty Company will, if required by the provisions of Section 8(c) hereof, enter into an Agreement regarding the clean-up of the Newark Terminal in compliance with ECRA (the “ECRA Agreement”).

15. Terminaling Arrangements . Texaco agrees that, in addition to the arrangements provided for in the Delaware City Handling Agreement, for a period of three years after the Closing it will provide to Buyer at Texaco’s distribution terminals throughput and storage facilities for use by the Operation at then prevailing charges and in mutually agreeable reasonable quantities. Exchange arrangements and in-plant purchase agreements will be entered into on terms as may be mutually agreed upon by the parties. It is understood and agreed that, notwithstanding the foregoing, Texaco has the absolute right in its sole discretion to terminate or reduce the scope of operations at any of its

distribution terminals; provided , however , that Buyer shall have the right to use of any of Texaco’s other distribution terminals for the throughput and storage facilities previously made available to Buyer at any such terminal where there is available capacity. Texaco further agrees to cause GRMC to perform all of its obligations under the Delaware City Handling Agreement.

16. Specific Performance; Payment of Certain Expenses; Sales and Use Taxes . (a) Each of the parties agree that any actual or threatened breach of any of the covenants or agreements contained in this Agreement shall entitle the other party to apply to any court of competent jurisdiction to enjoin such breach or otherwise enforce the obligations of the defaulting party hereunder. If Texaco, GOC or GRMC are unable to close the transaction due to the circumstances set forth in Section 11(a) herein by the Closing Date (as it may be extended), Texaco, GOC and GRMC agree to reimburse Buyer for its expenses in connection with the transaction which is the subject matter of this Agreement, including without limitation the Memorandum of Agreement, this Agreement and the Related Agreements up to $250,000.

(b) Except in accordance with Section 4(a) herein and subsection (a) of this Section 16, each party will be liable for its own costs and expenses incurred in connection with the negotiation, preparation, execution or performance of the transaction which is the subject matter of this Agreement, including without limitation the Memorandum of

Agreement, this Agreement and the Related Agreements (including without limitation, any and all legal, accounting and other professional fees and expenses), irrespective of whether the transaction closes. However, GRMC, on the one hand, and Buyer, on the other hand, shall each be liable for one-half of all applicable sales and use taxes resulting from the consummation of this transaction.

17. Waiver . Any of the terms or conditions of this Agreement may be waived at any time and from time to time in writing by the party entitled to the benefits thereof without affecting any other terms or conditions of this Agreement.

18. Notices . All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given, if delivered in person, telegraphed, or mailed by certified or registered mail, postage prepaid to the following:


	Texaco, GOC
	and GRMC:

		Texaco Inc.
		2000 Westchester Avenue
		White Plains, New York 10650

		Attention: Senior Vice President and General Counsel

	with a copy to:

		Texaco Inc. 1111 Rusk Avenue Houston, Texas 77002

		Attention: President-Texaco USA


	Buyer or the Realty Company:

		Power Test Corp. 175 Sunnyside Blvd. Plainview, New York 11803

		Attention: President

	with a copy to:

		Dewey, Ballantine, Bushby, Palmer & wood
		140 Broadway New York, New York 10005

		Attention: Philip E. Coviello, Esq.

or to such other person at such other address as the party to be notified shall have furnished to the other party in writing. All notices, requests, demands and other communications shall be effective upon receipt.

19. Entire Agreement; Amendment . This Agreement and the attached Exhibits and Schedules, which are specifically made a part of this Agreement, set forth the entire agreement and understanding of the parties in respect of the transaction contemplated hereby and supersede all prior agreements, arrangements and understandings relating to the subject matter hereof, including the Memorandum of Agreement; provided , however , that the provisions of Paragraph 23 of the Memorandum of Agreement respecting confidentiality and the Confidentiality Agreement shall survive the signing of this Asset Purchase Agreement. No representation, promise, inducement or statement of intention has been made by the parties which is not embodied in this Agreement, the Schedules or Exhibits hereto, or the written statements, certificates or other documents delivered pursuant hereto,

and none of the parties shall be bound by or liable for any alleged representation, promise, inducement or statement of intention not so set forth. This Agreement may be amended or modified only by a written instrument executed by Texaco, GOC, GRMC and Buyer or by their successors and permitted assigns.

20. General . This Agreement and the transaction contemplated herein: (a) shall be construed and enforced in accordance with the laws of the State of New York, without regard to the conflict of laws rules thereof; (b) shall inure to the benefit of and be binding upon Texaco, GOC, GRMC and Buyer and their respective successors and permitted assigns, nothing in this Agreement, expressed or implied, being intended to confer upon any other person (other than the Realty Company as provided in Section 21 herein) any rights or remedies hereunder; (c) may not be assigned by any party hereto without the written consent of the other parties hereto, provided that nothing in this clause (c) shall be deemed to limit Buyer’s right to have the Realty Company perform its obligations or exercise its rights hereunder in the manner and to the extent permitted by Section 9(c) herein; and provided further , that GRMC or GOC may assign its rights and obligations hereunder to Texaco; and (d) may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The Section and other headings contained in this Agreement are for reference pur-

poses only and shall not affect in any way the meaning or interpretation of this Agreement.

21. Third Party Beneficiary . The parties understand and agree that the Realty Company is a third party beneficiary of this Agreement and the Related Agreements; but only to the extent expressly so provided in this Agreement and the Related Agreements; provided , however , that it is understood and agreed that any provisions in this Agreement or the Related Agreements, or any agreement or waiver entered into by Buyer after the date hereof, which by its terms affects or limits the Realty Company’s rights shall be deemed effective on the Realty Company and its successors and assigns.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement the day and year first above written.


	TEXACO INC.

	By	/s/	J. W. Kinnear

			Title:	Vice Chairman

ATTEST:

/s/ Carl B. Davidson

Secretary

	GETTY OIL COMPANY

	By	/s/	William C. Weitzel Jr.

			Title:	Senior Vice President
				and General Counsel


ATTEST:

/s/ Carl B. Davidson

Secretary

	GETTY REFINING AND MARKETING COMPANY

	By	/s/	P. I. Bijur

			Title: Vice President

ATTEST:

/s/ Carl B. Davidson

Secretary

	POWER TEST CORP.

	By	/s/	Leo Liebowitz

			Title: President

ATTEST:

/s/ M. Cooper

Asst. Secretary

Power Test Realty Company Limited Partnership hereby acknowledges that it has been provided with a copy of the aforesaid Asset Purchase Agreement and the Related Agreements and that it is executing this acknowledgement solely for the purposes of its agreement with Section 21 of the Asset Purchase Agreement. Power Test Realty Company Limited Partnership further agrees to enter into the Mutual Cancellation Agreement as set forth in Section 9(o) of the Asset Purchase Agreement.


	POWER TEST REALTY COMPANY LIMITED PARTNERSHIP, a New York limited partnership

	By:	CLS GENERAL PARTNERSHIP CORP., as General Partner


	By	/s/ Leo Liebowitz

		Leo Liebowitz, President

EXHIBIT 10.5 FORM OF INDEMNIFICATION AGREEMENT BETWEEN THE COMPANY AND ITS DIRECTORS.

INDEMNIFICATION AGREEMENT

AGREEMENT, effective as of January 30, 1998 between GETTY REALTY CORP., a Maryland corporation (the “Company”), and ______________________ (the “Director”), a director of the Company;

WHEREAS, in recognition of Director’s need for substantial protection against personal liability in order to enhance Director’s continued service to the Company in an effective manner and Director’s reliance on the provisions of the By-Laws requiring indemnification of the Director under certain circumstances, and in part to provide Director with specific contractual assurance that the protection promised by such By-Laws will be available to Director (regardless of, among other things, any amendment to or revocation of such By-Laws or any change in the composition of the Company’s Board of Directors or acquisition transaction relating to the Company), the Company wishes to provide in this Agreement for the indemnification of and the advancing of expenses to Director to the full extent (whether partial or complete) permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained, for the continued coverage of Director under the Company’s directors’ and officers’ liability insurance policies.

NOW, THEREFORE, in consideration of the premises and of Director agreeing to serve or continuing to serve the Company directly or, at its request, with another enterprise, and intending to be legally bound hereby, the parties hereto agree as follows:

1. Basic Indemnification Agreement.

(a) In the event Director was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Claim (as hereinafter defined) by reason of (or arising in part out of) an Indemnifiable Event (as hereinafter defined), the Company shall indemnify Director to the fullest extent permitted by law as soon as practicable but in any event no later than 30 days after written demand is presented to the Company, against any and all Expenses (as hereinafter defined), judgment, fines, penalties and amounts paid in settlement of such Claim. If so requested by Director, the Company shall advance (within ten business days of such written request) any and all Expenses to Director (an “Expense Advance”). Notwithstanding anything in this Agreement to the contrary, and except as provided in Section 3, prior to a Change in Control (as hereinafter defined) Director shall not be entitled to indemnification pursuant to this Agreement in connection with any Claim initiated by Director against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Claim.

(b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 1(a) shall be subject to the condition that the Reviewing Party (as hereinafter defined) shall not have determined (in a written opinion, in any case in which the special independent counsel referred to in Section 2 is involved) that Director would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 1(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Director would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Director (who hereby agrees to reimburse the

Company) for all such amounts theretofore paid; provided, however, that if Director has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Director should be indemnified under applicable law, any determination made by the Reviewing Party that Director would not be permitted to be indemnified under applicable law shall not be binding and Director shall not be required to reimburse the Company for any Expense Advance until a final judicial determination that Director shall reimburse the Company for any Expense Advance is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed). If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, the Reviewing Party shall be the special independent counsel referred to in Section 2. The Board of Directors will appoint the Reviewing Party no later than 10 days after receipt of a demand for indemnification (including, without limitation, a demand for Expense Advance). The Reviewing Party shall make his determination no later than 20 days after his appointment. If after 30 days there has been no determination by the Reviewing Party or if the Reviewing Party determines that Director substantively would not be permitted to be indemnified in whole or in part under applicable law, Director shall have the right to commence litigation in any court in the states of New York or Maryland having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party of any aspect thereof, and the Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on the Company and Director.

2. Change in Control. The Company agrees that, if there is a Change in Control of the Company (other than a Change in Control which has been approved by a majority of the Company’s Board of Directors who were directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of Director to indemnity payments and Expense Advances under this Agreement or any other agreement or Company By-Law now or hereafter in effect relating to Claims for Indemnifiable Events, the Company shall seek legal advice only from special independent counsel selected by Director and approved by the Company (which approval shall not be unreasonably withheld), and who has not otherwise performed services for the Company within the last five years (other than in connection with such matters) or for Director. Such counsel, among other things, shall render a written opinion to the Company and Director as to whether and to what extent Director would be permitted to be indemnified under applicable law. The Company agrees to pay the reasonable fees of the special, independent counsel referred to above and to fully indemnify such counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.

3. Indemnification for Additional Expenses. The Company shall indemnify Director against any and all expenses (including attorneys’ fees) and, if requested by Director, shall (within ten business days of such written request) advance such expenses to Director, which are incurred by Director in connection with any claim asserted against or action brought by Director for (i) indemnification or advance payment of Expenses by the Company under this Agreement or any other agreement or Company By-Law now or hereafter in effect relating to Claims for Indemnifiable Events and/or (ii) recovery under any directors’ and officers liability insurance policies maintained by the Company, regardless of whether Director ultimately is determined to

be entitled to such indemnification, advance expense payment or insurance recovery, as the case may be.

4. Partial Indemnity, Etc. If Director is entitled under any provision of this Agreement to indemnification by the Company of some or a portion of the Expenses, judgments, fines, penalties and amounts paid in settlement of a Claim but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Director for the portion thereof to which Director is entitled. Moreover, notwithstanding any other provision of this Agreement, to the extent that Director has been successful on the merits or otherwise in defense of any or all Claims relating in whole or in part to an Indemniflable Event or in defense of any issue or matter therein, including dismissal without prejudice, Director shall be indemnified against all Expenses incurred in connection therewith. In connection with any determination by the Reviewing Party or otherwise as to whether Director is entitled to be indemnified hereunder the burden of proof shall be on the Company to establish that Director is not so entitled.

5. No Presumption. For purposes of this Agreement, the termination of any action, suit or proceeding by judgment, order, settlement (whether with or without court approval) or conviction, shall not create a presumption that Director did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.

6. Non-exclusivity, Etc. The rights of Director hereunder shall be in addition to any other rights Director may have under the Company’s By-Laws or the Maryland General Corporation Law or otherwise. To the extent that a change in the Maryland General Corporation Law (whether by statute or judicial decision), or the Company’s By-Laws, permits greater indemnification by agreement than would be afforded currently under the Company’s By-Laws and this Agreement, it is the intent of the parties hereto that Director shall enjoy by this Agreement the greater benefits so afforded by such change.

7. Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors’ and officers’ liability insurance, Director shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage reasonably and economically available (as solely determined by the Board of Directors) for any Company director.

8. Certain Definitions:

(a) “Change in Control” shall be deemed to have occurred if (i) any “person (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 20% or more of the total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two consecutive years, individuals who at the beginning of such two-year period constitute the Board of Directors of the

Company and any new director whose election by the Board of Directors or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of such two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company’s assets.

(b) Claim” shall mean any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation whether conducted by the Company or any other party, whether civil, criminal, administrative or investigative.

(c) “Expenses” include attorneys’ fees and all other costs, expenses and obligations paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be a witness in or participate in any Claim relating to any Indemnifiable Event.

(d) “Indemnifiable Event” is any event or occurrence related to the fact that Director is or was a director, officer, employee, agent or fiduciary of the Company, or is or was serving at the request of the Company as a director, officer, employee, trustee, agent or fiduciary of another corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, or arising by reason of anything done or not done by Director in any such capacity.

(e) Reviewing Party” is any appropriate person or body consisting of a member or members of the Company’s Board of Directors or any other person or body appointed by the Board (including the special independent counsel referred to in Section 2) who is not a party to the particular Claim for which Director is seeking indemnification.

(f) “Voting Securities” are any securities of the Company which vote generally in the election of directors.

9. Amendments and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.

10. Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Director, who shall execute all papers required and shall do everything that may be necessary to secure such rights,

including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.

11. No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any claim made against Director to the extent Director has otherwise actually received payment (under any insurance policy, By-Law or otherwise) of the amounts otherwise indemnifiable hereunder.

12. Binding Effect, Etc. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns, including any (i) direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, and (ii) spouses, heirs, and personal and legal representatives. This Agreement shall continue in effect regardless of whether Director continues to serve as a director (or in one of the capacities enumerated in Section 8(d) hereof) of the Company or of any other enterprise at the Company’s request.

13.Severabi1ity. The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provisions within a single section, paragraph or sentence) are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law.

14. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland applicable to contracts made and to be performed in such state without giving effect to the principles of conflicts of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.


ATTEST:	GETTY REALTY CORP.

	By:	(SEAL)

Secretary		Leo Liebowitz, President

WITNESS	DIRECTOR

EXHIBIT 10.6 AMENDED AND RESTATED SUPPLEMENTAL RETIREMENT PLAN FOR EXECUTIVES OF GETTY REALTY CORP. AND PARTICIPATING SUBSIDIARIES (ADOPTED BY THE COMPANY ON DECEMBER 16, 1997 AND AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2009).

SUPPLEMENTAL RETIREMENT PLAN
FOR EXECUTIVES OF
GETTY REALTY CORP.
AND PARTICIPATING SUBSIDIARIES
Amended and Restated effective January 1, 2009

TABLE OF CONTENTS


		Page
Article 1.	Definitions	1

Article 2.	Participation	2

Article 3.	Contributions and Funding	3

Article 4.	Payment of Benefits	4

Article 5.	General Provisions	5

Article 6.	Amendment and Termination	8

-i-

INTRODUCTION

This Supplemental Retirement Plan for Executives of Getty Realty Corp. and Participating Subsidiaries was originally effective January 1, 1989, and is hereby amended and restated effective January 1, 2009. This Plan is intended to promote extraordinary contributions by eligible executives by providing such executives with supplemental retirement benefits. The Plan is unfunded and is maintained by Getty Realty Corp. and its participating subsidiaries primarily for the purpose of providing deferred compensation for a select group of management and highly compensated employees. The Plan reads as hereinafter set forth.

Article 1. Definitions


1.01	“Account” shall mean a Member’s account in the Trust which shall consist of all amounts credited to a Member under Section 3.01, adjusted for any earnings or losses on those amounts pursuant to Section 3.05 and after payment of any expenses as provided by the provisions of the Trust.

1.02	“Affiliated Company” shall mean any company, corporation or business directly or indirectly controlled by the Company, whether or not such company, corporation or business participates in the Plan.

1.03	“Beneficiary” shall mean the beneficiary designated by a Member pursuant to Section 4.03.

1.04	“Code” shall mean the Internal Revenue Code of 1986 as it may be amended.

1.05	“Committee” shall mean the individuals appointed by the Company under Section 5.06 to administer the Plan.

1.06	“Company” shall mean Getty Realty Corp. or any successor by merger, purchase or otherwise, with respect to its employees.

1.07	“Company Contributions” shall mean the amount of contributions credited to a Member under Section 3.01.

1.08	“Compensation” shall mean “compensation” as defined in the Retirement Plan for purposes of profit sharing allocations thereunder. If the Company changes the definition of “compensation” in the Retirement Plan during the Plan Year, the change will be effective as of the next January 1 for purposes of this Plan.

1.09	“Effective Date” shall mean January 1, 1989.

1.10	“Member” shall mean an employee of a Participating Company for whom a Company Contribution has been made under the Plan.

1.11	“Participating Company” shall mean the Company and any Affiliated Company which


	the Company designates for participation in the Plan in accordance with Section 5.06(b).

1.12	“Plan” shall mean this Supplemental Plan for Executives of Getty Realty Corp. and Participating Subsidiaries.

1.13	“Plan Year” shall mean the calendar year starting on January 1, 1989 and each succeeding calendar year.

1.14	“Retirement Plan” shall mean the Getty Realty Corp. Retirement and Profit-Sharing Plan.

1.15	“Trust” shall mean the grantor trust established under Section 3.07.

1.16	“Valuation Date” shall mean the last business day of each calendar quarter following the Effective Date.

1.17	“Separation from Service” shall have the same meaning as that term is used in Section 409A(a)(2)(A)(i) of the Code including by reason of becoming disabled as that term is used in Section 409A(a)(2)(A)(ii) of the Code and excluding death.

Article 2. Participation

2.01	Participation

	(a)	Only officers and other senior management employees of the Participating Companies shall be eligible to have a Company Contribution made to the Plan on their behalf. Each Plan Year the Committee, in its sole discretion, shall select those officers and other senior management employees of the Participating Companies for whom a Company Contribution shall be made for that Plan Year or for the immediately preceeding Plan Year. An employee who receives a Company Contribution shall be a Member and shall remain a Member until he receives the full balance of his Account in accordance with Article 4. Employees shall be notified of their Membership in the Plan as soon as practicable after the Committee has made its selection.

	(b)	The Committee is not under any obligation to select an officer or other person as an employee for whom a Company Contribution shall be made for a Plan Year solely because he had a Company Contribution made on his behalf in a prior Plan Year.

2.02	Other Information

	As a condition of participation in this Plan, a Member may be required by the Committee to provide such information as the Committee may deem necessary to properly administer the Plan.

Article 3. Contributions and Funding


3.01	Amount of Contributions

	For any Plan Year beginning on or after January 1, 1989, each Participating Company shall make a contribution to the Trust for each of its employees selected by the Committee under Section 2.01 for that Plan Year. The amount of a Participating Company’s contribution on behalf of such an employee for a Plan Year shall be equal to ten percent of the Compensation the employee received in that Plan Year, reduced by the amount of any “Retirement Plan Contributions” allocated to the employee on account of that Plan Year. For purposes of this Section 3.01, “Retirement Plan Contributions” shall mean all contributions, other than elective deferrals as defined in Section 402(g)(3) of the Code, made by the Company or an Affiliated Company under the Retirement Plan as it may be amended, or under any successor thereto, or made pursuant to the provisions of any other plan, qualified under Section 401(a) of the Code, maintained by the Company or an Affiliated Company.

3.02	Crediting to Accounts

	The Company Contributions made by a Participating Company on behalf of a Member for any Plan Year shall be paid to the Trust as soon as practicable after the end of the Plan Year in which the employee is selected by the Committee and shall be credited to the Member’s Account as of the first Valuation Date coincident with or immediately following the date they are paid to the Trust.

3.03	Vesting of Account

	The Member shall vest in his Account at the same rate at which such Account would have vested under the Retirement Plan had the Account been maintained under the Retirement Plan. In the event the Member ceases to be employed by the Company or an Affiliated Company prior to vesting in all or any part of the Company Contributions credited on his behalf, such Company Contributions shall be forfeited and shall not be restored in the event the Member is subsequently reemployed by the Company or an Affiliated Company. Any amounts forfeited under this Section 3.03 shall be returned to the Participating Company which had employed the forfeiting Member as soon as practicable after the end of the Plan Year in which the forfeiture occurs or, in the alternative, credited towards any contributions the Participating Company may be required to make under Section 3.01 for the next Plan Year.

3.04	Investment of Accounts

	(a)	Hypothetical investment gains and losses will be credited to the Accounts based on the performance of one or more mutual funds or other investment vehicles selected by the Member from among those made available to the Member from time to time by the Committee, in its discretion. The Member must select investment options and make changes to those selections using forms and procedures acceptable to the Committee. Neither the Company nor any Participating Company will guarantee the Accounts against loss or depreciation, whether caused by poor investment performance of investment options or otherwise, nor will the Company, Participating Company, or any member of the


		Committee have any liability with respect to such performance.

	(b)	Notwithstanding anything to the contrary in this Plan, the Committee may use the assets of the Trust allocated to employees of a Participating Company to satisfy claims of the Participating Company’s general creditors in the event of the Participating Company’s bankruptcy or insolvency.

3.05	Valuation of Trust

	(a)	The Committee shall cause the Trust to be valued on the last Valuation Date in each Plan Year and on such other Valuation Dates as it deems advisable. Each time the Trust is valued, there shall be allocated to the Accounts of each Member his proportionate share of the increase or decrease in the fair market value of the Trust’s assets.

	(b)	Whenever an event requires a determination of the value of a Member’s Account, the value shall be computed as of the Valuation Date coincident with or next following the date of determination.

3.06	Individual Accounts

	The Committee shall maintain, or cause to be maintained, records showing the individual balances of each Member’s Account. At least once a year, each Member shall be furnished with a statement setting forth the value of his Account.

3.07	Establishment of a Trust

	(a)	The Company shall establish a grantor trust for the benefit of Members participating in the Plan. The assets of the Trust will be held separate and apart from the funds of the Participating Companies, and shall be used exclusively for the purposes set forth in the Plan and the applicable trust agreement, subject to the following conditions:

		(i)	the creation of the Trust shall not cause the Plan to be other than “unfunded” for purposes of Title I of the Employee Retirement Income Security Act of 1974;

		(ii)	the Participating Companies shall be treated as “grantors” of the Trust for purposes of Section 677 of the Code; and

		(iii)	the trust agreement shall provide that its assets may be used to satisfy claims of the Participating Companies’ general creditors, and the rights of such general creditors are enforceable by them under federal and state law.

Article 4. Payment of Benefits

4.01	Commencement of Benefits

	(a)	A Member shall be entitled to receive payment of his vested Account upon his Separation from Service with the Company or an Affiliated Company for any reason. Payment shall be made in a single cash sum within 30


		days following the Member’s Separation from Service with the Company or the Affiliated Company.

	(b)	Except as otherwise provided in the Plan and as permitted under Section 409A of the Code, no portion of a Member’s Account may be withdrawn or otherwise distributed prior to the Member’s Separation from Service with the Company or an Affiliated Company.

	(c)	If a Member is a “specified employee” as that term is used in Section 409A(a)(2)(B)(i) of the Code at the time of his Separation from Service with the Company or an Affiliated Company (as determined in good faith by the Compensation Committee of the Board of Directors of the Company), payment of his vested Account shall be made on the first day following the six month anniversary of such Member’s Separation from Service with the Company or an Affiliated Company.

4.02	Payment on Death

	A Member’s vested Account shall be payable to his Beneficiary in a single cash sum within 90 days after the Member’s death.

4.03	Designation of Beneficiary

	Each Member shall file with the Committee a written designation of one or more persons or trusts as the Beneficiary who shall be entitled to receive the amount, if any, payable under the Plan upon his death pursuant to Section 4.02. A Member may, from time to time revoke or change his Beneficiary designation without the consent of any prior Beneficiary by filing a new designation with the Committee. The last such designation received by the Committee shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Member’s death, and in no event shall it be effective as of a date prior to such receipt. If no such Beneficiary designation is in effect at the time of a Member’s death, or if no designated Beneficiary survives the Member, the Member’s estate shall be deemed to have been designated his Beneficiary and shall receive the payment of the amount, if any, payable under the Plan upon his death.

Article 5. General Provisions

5.01	Benefits Are Unsecured

	All amounts payable in accordance with this Plan shall constitute a general unsecured obligation of the Participating Companies. Such amounts shall be paid out of the general assets of the Participating Companies, to the extent not paid by the Trust.

5.02	No Contract of Employment

	The establishment of the Plan shall not be construed as conferring any legal rights upon any person for a continuation of employment, nor shall it interfere with the rights of the Company or an Affiliated Company to discharge any employee and to treat him without regard to the effect which such treatment might have upon him as a Member of the Plan.


5.03	Facility of Payment

	In the event that the Committee shall find that a Member is unable to care for his affairs because of illness or accident, the Committee, may direct that any benefit payment due him, unless claim shall have been made therefore by a duly appointed legal representative, be paid to his spouse, a child, a parent or other blood relative, or to a person with whom he resides, and any such payment so made shall be a complete discharge of the liabilities of the Plan therefor.

5.04	Withholding Taxes

	All payments under this Plan shall be net of an amount sufficient to satisfy any federal, state or local withholding tax requirements.

	All amounts sufficient to satisfy any state or local withholding tax requirements or the Federal Insurance Contributions Act (FICA) tax imposed under section 3121(v)(2) of the Code (such state, local and FICA taxes collectively referred to as the “Taxes”) that is due with respect to any Member’s Account prior to such Member’s Separation from Service with the Company or an Affiliated Company or his death including, but not limited to, as a result of Company Contributions having been made or become vested or any required re-Valuation of a Member’s Account, if not paid by the Member in cash or by check to the Company or the Affiliated Company, as applicable, shall be withheld from payment of such Member’s biweekly compensation or any other amounts then due the Member. In the event that the aggregate amount of the Member’s biweekly compensation or other amounts due the Member on or after the date of the event giving rise to the imposition of the Taxes and before the date that the Company or an Affiliated Company is required to deposit the Taxes with the appropriate depository is less than the amount of such Taxes, the Company or the Affiliated Company may direct the Committee or the Trustees to distribute from the Member’s Account an amount sufficient to pay the applicable Taxes, as well as the amount of any taxes imposed under Section 3401 of the Code on such distribution, but in no event shall any such distribution exceed the amount permitted to be distributed under Treasury Regulation section 1.409A-3(j)(4)(vi) or 1.409A-3(j)(4)(xi) or any successor provision.

5.05	Nonalienation

	Subject to any applicable law, no benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt so to do shall be void, nor shall any such benefit be in any manner liable for or subject to garnishment, attachment, execution or levy, or liable for or subject to the debts, contracts, liabilities, engagements or torts of the Member or his Beneficiary.

5.06	Administration

	(a)	The Plan shall be administered by an administrative committee of at least two officers or employees appointed by the Company. The Committee shall interpret the Plan, establish regulations to further the purposes of the Plan and take any other action necessary to the proper operation of the Plan.

	(b)	The Company, in its sole discretion and upon such terms as it may prescribe, may


		permit any Affiliated Company to participate in the Plan.

	(c)	Prior to paying any benefit under this Plan, the Committee may require the Member or Beneficiary to provide such information or material as the Committee, in its sole discretion, shall deem necessary for it to make any determination it may be required to make under this Plan. The Committee may withhold payment of any benefit under this Plan until it receives all such information and material and is reasonably satisfied of its correctness and genuineness.

	(d)	The Committee shall provide adequate notice in writing to any Member, former Member or Beneficiary whose claim for benefits under this Plan has been denied, setting forth the specific reasons for such denial. A reasonable opportunity shall be afforded to any such Member, former Member or Beneficiary for a full and fair review by the Committee of its decision denying the claim. The Committee’s decision on any such review shall be final and binding on the Member, former Member or Beneficiary and all other interested persons.

	(e)	All acts and decisions of the Committee shall be final and binding upon all Members , former Members, Beneficiaries and employees of the Company or an Affiliated Company.

5.07	Administrative Expenses

	All expenses of administering the Plan and the Trust shall be paid by the Participating Companies.

5.08	Construction

	(a)	The Plan is intended to constitute an unfunded deferred compensation arrangement for a select group of management or highly compensated personnel and all rights hereunder shall be governed by and construed in accordance with this intention and with the laws of the state of New York.

	(b)	The masculine pronoun shall mean the feminine wherever appropriate.

	(c)	The captions inserted in this Plan are inserted as a matter of convenience and shall not affect the construction of the Plan.

5.09	Code Section 409A Compliance

	The Plan is intended to be designed and administered to comply with Section 409A of the Code. The Committee shall undertake to administer, interpret, and construe the Plan in a manner that does not result in the imposition on any Member of any additional tax, penalty, or interest under Section 409A of the Code. Any Plan provision that would cause the Plan to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code either through conflict with such paragraphs of the Code or by omission shall be interpreted in a manner, or by substituting or including such provisions that would cause the Plan to comply with Section 409A of the Code.


	If the Company by its operation of the Plan and by no fault of the Member causes the Plan to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code, the Company shall reimburse the Member for interest and additional tax payable with respect to previously deferred compensation as provided in Section 409A(a)(1)(B) of the Code incurred by the Member including a tax “gross-up” on such reimbursement. Any such reimbursement and tax gross-up payment shall be calculated in good faith by the Committee and shall be paid by the end of the Member’s taxable year next following the Member’s taxable year in which the related taxes are remitted to the taxing authority.

	In the event that any portion of a Member’s Account shall be includible in income pursuant to Section 409A(a)(1) of the Code before the Member incurs a Separation from Service, the Committee shall distribute to the Member that portion of the Member’s Account upon such inclusion in income to the extent permitted under Treasury Regulation section 1.409A-3(j)(4)(vii) or any successor provision.

Article 6. Amendment and Termination

6. 01	Right to Terminate

	The Company, by action of its Board of Directors, may, in its sole discretion, terminate this Plan at any time or suspend contributions to the Plan for a fixed or indeterminate period of time. In the event the Plan is terminated, each Member and Beneficiary shall be fully vested in his Account and the amounts accumulated in Member Accounts pursuant to the Plan prior to termination will continue to be subject to the provisions of the Plan, other than vesting provisions, as if the Plan had not been terminated. Notwithstanding the foregoing sentence, the Company reserves the right to distribute Member Accounts pursuant to the provisions of Treasury Regulation section 1.409A-3(j)(4)(ix)(B) with respect to a change in control event or Treasury Regulation section 1.409A-3(j)(4)(ix)(C) with respect to a termination and liquidation of any and all deferred compensation plans.

6.02	Right to Amend

	The Company, by action of its Board of Directors, may, at any time and in its sole discretion, modify or amend this Plan or the Trust in any way, including, without limitation, increasing or decreasing the rate of Company Contributions made pursuant to Section 3.01. However, no modification or amendment of the Plan shall adversely affect the right of any Member to receive the benefits granted under the Plan in respect of such Member as of the date of modification or amendment.

EXHIBIT 10.7 LETTER AGREEMENT DATED JUNE 12, 2001 BY AND BETWEEN GETTY REALTY CORP. AND THOMAS J. STIRNWEIS REGARDING COMPENSATION UPON CHANGE IN CONTROL.

Getty Realty Corp. Letterhead

June 12, 2001

Mr. Thomas J. Stirnweis

Getty Realty Corp.

125 Jericho Turnpike

Jericho, New York 11753

Dear Tom:

I am pleased to advise you that the Board of Directors of Getty Realty Corp. (hereinafter the “Company”) has approved the following “change of control” or “substantial structural change” agreement:

For purposes hereof, “Guaranteed Salary” shall mean the sum of (a) your current base salary; (b) the greater of 20% of your current base salary or your benefits last received under any bonus plan; (c) your current expected annual benefits under the Supplemental Retirement Plan; (d) the total of the current expected annual employer contributions (other than salary deferrals made by you) made to your account under the Company’s 401(k) Plan; and (e) your current annual automobile reimbursement. “Guaranteed Benefits” shall mean medical, dental, life insurance and disability coverage at least as favorable as the coverage currently extended to you (“the Guaranteed Benefits”).

The Company reserves the right to terminate your employment at any time with or without Cause (as defined below). Upon the first to occur of (i) termination of your employment by the Company other than for Cause, (ii) termination of your employment by the Company or its successor (but not by you) following a Change, (as defined below), or (iii) termination of your employment by the Company or by you following assignment of materially different (as defined below) employment by the Company (each an “Event”), you shall be entitled to receive severance compensation for a period of 36 months following the date of such Event, in an amount equal to (x) your Guaranteed Salary and Guaranteed Benefits minus (y) any amount of similar compensation you may receive from any other employer during such period. If after a Change the surviving entity (or one of the surviving entities in the case of a substantial structural change) continues to compensate you but at a total salary less than the Guaranteed Salary and/or provide any benefit which is a part of the Guaranteed Benefits at less than the Guaranteed Benefit level, the Company shall pay, and/or provide to you, the difference between the Guaranteed Salary and Guaranteed Benefits and such lower salary or lesser benefits. If you are terminated without Cause by the successor entity, the Company will continue to be obligated to pay, and provide, the Guaranteed Salary and Guaranteed Benefits; provided however, that you shall use your best efforts to obtain other comparable employment and further provided that, if you obtain any other employment, the amounts of Guaranteed Salary and Guaranteed Benefits shall be reduced by the amounts you receive from the new employer.

For purposes hereof, employment shall be “materially different” if your job responsibilities or duties are materially less favorable than those in effect on the date hereof or if such job responsibilities are relocated more than 15 miles from Jericho, New York. The term

Mr. Thomas J. Stirnweis
June 12, 2001
Page 2

“Change” means a transaction pursuant to which (i) all or substantially all of the assets of Getty Realty Corp. (“Realty”) are sold or leased to any person, persons or related group of persons other than an affiliate or affiliates of Realty (a “third party”), (ii) ownership of 50% or more of the outstanding capital stock (or equity equivalents) of Realty is acquired by a third party; (iii) Realty is merged or consolidated with another entity with the effect that after such merger or consolidation 50% or more of the voting equity of the surviving entity is owned by a third party; or (iv) Realty is substantially structurally changed whereby the business and/or the assets are divided into two or more separate entities and the present Realty controlling shareholder interests are (a) substantially reduced in Realty or (b) materially non-existent in the new entity or entities. The term “Cause” shall mean (i) a finding that you have materially harmed the Company through a material act of dishonesty in the performance of your duties, or (ii) indictment (whether or not it results in a conviction) for a felony involving moral turpitude, fraud or embezzlement.

Upon a Change, all stock options held by you will become fully vested. Also, pursuant to the terms thereof, your account in the 401(k) Plan, will be distributable to you after termination of employment.

Your “Change of Control” Agreement previously in effect and all other agreements and understandings related thereto are hereby terminated and are superseded by this Letter Agreement.

This agreement will renew annually and will not terminate as a result of a Change as defined herein.

I appreciate your contribution to the Company and hope that we will together experience continued success and profitability.

Very truly yours,
GETTY REALTY CORP.


By:	/s/ Leo Liebowitz

	Leo Liebowitz
	President

Accepted and Agreed To:

By:	/s/ Thomas J. Stirnweis

	Thomas J. Stirnweis


Dated:	June 12, 2001

EXHIBIT 10.8 FORM OF REORGANIZATION AND DISTRIBUTION AGREEMENT BETWEEN GETTY PETROLEUM CORP. (NOW KNOWN AS GETTY PROPERTIES CORP.) AND GETTY PETROLEUM MARKETING INC. DATED AS OF FEBRUARY 1, 1997.

REORGANIZATION AND
DISTRIBUTION AGREEMENT

between

GETTY PETROLEUM CORP.

and

GETTY PETROLEUM MARKETING INC.

dated as of

February 1, 1997

TABLE OF CONTENTS


ARTICLE I - DEFINITIONS		2

Section 1.01	General	2
Section 1.02	Terms Defined Elsewhere in Agreement	14


ARTICLE II - TRANSFER OF ASSETS		14

Section 2.01	Merger of Aero into Getty	14
Section 2.02	Transfer of Assets to Marketing	14
Section 2.03	Transfers Not Effected Prior to the Distribution	15
Section 2.04	Cooperation Regarding Assets	16
Section 2.05	No Representations or Warranties; Consents	17
Section 2.06	Conveyancing and Assumption Instruments	18


ARTICLE III - ASSUMPTION AND SATISFACTION OF LIABILITIES		21

Section 3.01	Assumption and Satisfaction of Liabilities	21


ARTICLE IV - THE DISTRIBUTION		21

Section 4.01	Cooperation Prior to the Distribution	21
Section 4.02	Getty Board Action; Conditions Precedent to the Distribution	22
Section 4.03	The Distribution	24

ARTICLE V - INDEMNIFICATION		24

Section 5.01	Indemnification by Getty	24
Section 5.02	Indemnification by Marketing	25
Section 5.03	Insurance Proceeds	25
Section 5.04	Procedure for Indemnification	26
Section 5.05	Remedies Cumulative	30
Section 5.06	Survival of Indemnities	30


ARTICLE VI - CERTAIN ADDITIONAL MATTERS		30

Section 6.01	Marketing Board	30
Section 6.02	Resignations; Getty Board	31
Section 6.03	Certificate Charter and Bylaws	31
Section 6.04	Employee Stock Ownership Plan	31
Section 6.05	Certain Post-Distribution Transactions	32
Section 6.06	Corporate Name	33

ARTICLE VII - ACCESS TO INFORMATION AND SERVICES		33

Section 7.01	Provision of Corporate Records	33
Section 7.02	Access to Information	34
Section 7.03	Production of Witnesses	34
Section 7.04	Reimbursement	35
Section 7.05	Retention of Records	35
Section 7.06	Confidentiality	35
Section 7.07	Privileged Matters	36

ARTICLE VIII - INSURANCE		39

Section 8.01	Policies and Rights Included Within the Marketing Assets	39
Section 8.02	Post-Distribution Date Claims	40
Section 8.03	Administration and Reserves	40
Section 8.04	Agreement for Waiver of Conflict and Shared Defense	42
Section 8.05	Surety Bonds and Letters of Credit	42

ARTICLE IX - MISCELLANEOUS		43

Section 9.01	Complete Agreement; Construction	43
Section 9.02	Expenses	44
Section 9.03	Governing Law	44
Section 9.04	Notices	44
Section 9.05	Amendments	45
Section 9.06	Successors and Assigns	45
Section 9.07	Termination	45
Section 9.08	Subsidiaries	45
Section 9.09	No Third-Party Beneficiaries	45
Section 9.10	Titles and Headings	45
Section 9.11	Exhibits and Schedules	46
Section 9.12	Legal Enforceability	46
Section 9.13	Consent of Parties	46

SCHEDULE OF EXHIBITS


Exhibit A:	Getty Pro Forma Balance Sheet

Exhibit B:	Marketing Bylaws - See Exhibit 3.4 to Form 10/A

Exhibit C:	Marketing Restated Articles of Incorporation - See Exhibit 3.2 to Form 10/A

Exhibit D:	Marketing Pro Forma Balance Sheet

Exhibit E:	Master Lease between Marketing and Getty - See Exhibit 10.2 to Form 10/A

Exhibit F:	Office Space License between Getty and Marketing

Exhibit G:	Services Agreement between Marketing and Getty - See Exhibit 10.4 to Form 10/A

Exhibit H:	Tax Sharing Agreement between Marketing and Getty - See Exhibit 10.3 to Form 10/A

Exhibit I:	Trademark License Agreement between Marketing and Getty - See Exhibit 10.5 to Form 10/A

iii

LIST OF SCHEDULES


Schedule 1.01(a)	Environmental Liabilities

Schedule 1.01(b)	Upgrades

Schedule 1.01(c)	Marketing Equipment

Schedule 1.01(d)	Shared Policies

Schedule 2.06	Conveyance and Assumption Instruments

Schedule 4.01	Consents

___________________, 1997

REORGANIZATION AND DISTRIBUTION AGREEMENT

This REORGANIZATION AND DISTRIBUTION AGREEMENT (this “Agreement”) is made this 1st day of February, 1997 between Getty Petroleum Corp., a Delaware corporation (“Getty”), and Getty Petroleum Marketing Inc. a Maryland corporation and a wholly-owned subsidiary of Getty (“Marketing”).

RECITALS

WHEREAS, Getty, directly and through subsidiaries, (i) acquires, develops, leases and disposes of real estate (the “Real Estate Business”), purchases, stores, transports and sells home heating oil to residential and commercial customers in Pennsylvania and Maryland (the “Aero Home Heating Oil Business”), and (ii) purchases, stores, markets and distributes gasoline and diesel fuel in 12 Northeastern and Middle Atlantic States and purchases, stores, transports and sells home heating oil to residential and commercial customers in the New York Mid-Hudson Valley (which businesses described in this clause (ii) are more specifically defined herein as the “Marketing Business”);

WHEREAS, the Board of Directors of Getty has determined that it is in the best interests of Getty to separate the Aero Home Heating Oil Business and the Real Estate Business on the one hand, and the Marketing Business on the other hand, and, in order to effect such separation, to transfer to Marketing the stock of certain Getty subsidiaries principally engaged in the Marketing Business and certain other assets relating principally to the Marketing Business (collectively, the “Asset Transfers”), and thereafter to distribute all of the outstanding shares of common stock, par value $.01 per share, of Marketing to the holders of Getty common stock (the “Distribution”);

WHEREAS, Getty has effected (i) certain preliminary transfers and corporate restructurings and (ii) the elimination of all intercompany and intracompany receivables, payables and loans between entities that will be part of Getty and its subsidiaries after the Distribution and entities that will be part of Marketing and its subsidiaries after the Distribution, which transactions are not contingent upon consummation of the Distribution and will not be undone if the Distribution does not occur; and

WHEREAS, in connection with the Distribution, Getty and Marketing have determined that it is necessary and desirable to set forth the principal corporate transactions required to effect the Asset Transfers and the Distribution, and to set forth the agreements that will govern certain matters following the Distribution.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 General. As used in this Agreement, the following terms shall have the following meanings:

Action: Any action, claim, suit, arbitration, inquiry, proceeding or investigation by or before any court, any governmental or other regulatory or administrative agency or commission or any arbitration tribunal.

Aero: Aero Oil Company, a Pennsylvania corporation.

Affiliate: With respect to any specified Person, means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, “control,” when used with

respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” shall have meanings correlative to the foregoing. Notwithstanding the foregoing, (i) the Affiliates of Getty shall not include Marketing, the Marketing Subsidiaries or any other Person that would be an Affiliate of Getty by reason of Getty’s ownership of the capital stock of Marketing prior to the Distribution or the fact that any officer or director of Marketing or any of the Marketing Subsidiaries shall also serve as an officer or director of Getty or any of the Retained Subsidiaries, and (ii) the Affiliates of Marketing shall not include Getty, the Retained Subsidiaries or any other Person that would be an Affiliate of Marketing by reason of Getty’s ownership of the capital stock of Marketing prior to the Distribution or the fact that any officer or director of Marketing or any of the Marketing Subsidiaries shall also serve as an officer or director of Getty or any of the Retained Subsidiaries.

Agent: The distribution agent appointed by Getty to distribute the Marketing Common Stock pursuant to the Distribution.

Claims Administration: The processing of pre-Distribution claims made under the Policies (including Self Insurance Programs), including the reporting of claims to the insurance carrier, management and defense of claims and providing for appropriate releases upon settlement of claims.

Code: The Internal Revenue Code of 1986, as amended.

Commission: The Securities and Exchange Commission.

Conveyancing and Assumption Instruments: Collectively, the various agreements, instruments and other documents to be entered into to effect the Asset Transfers

and the assumption of Liabilities in the manner contemplated by this Agreement and the Related Agreements.

Distribution Date: The date determined by the Getty Board as the date on which the Distribution shall be effected.

Distribution Record Date: The date established by the Getty Board as the date for taking a record of the Holders of Getty Common Stock entitled to participate in the Distribution.

Employee Stock Ownership Plan: The Employee Stock Ownership Plan of Getty Petroleum Marketing Inc.

Exchange Act: The Securities Exchange Act of 1934, as amended.

Financing Obligations: All (i) indebtedness for borrowed money, (ii) obligations evidenced by bonds, notes, debentures or similar instruments, (iii) obligations under capitalized leases and deferred purchase arrangements, (iv) reimbursement or other obligations relating to letters of credit or similar arrangements, and (v) obligations to guarantee, directly or indirectly, any of the foregoing types of obligations on behalf of others.

Gasway: Gasway, Inc., a New York corporation.

Getty Board: The Board of Directors of Getty.

Getty Books and Records: The books and records (including computerized records, ledgers, files and software) of Getty and the Retained Subsidiaries and all books and records owned by Getty and its Subsidiaries which relate to the Retained Business, are necessary to operate the Retained Business, or are required by law to be retained by Getty, including, without limitation, all such books and records relating to Retained Employees, all

files relating to any Action pertaining to the Retained Liabilities, original corporate minute books, stock ledgers and certificates and corporate seals, and all licenses, leases, agreements and filings, relating to Getty, the Retained Subsidiaries or the Retained Business (but not including the Marketing Books and Records, provided that Getty shall have access to, and shall have the right to obtain duplicate copies of, the Marketing Books and Records in accordance with the provisions of Article VII).

Getty Common Stock: The common stock, par value $0.10 per share, of Getty.

Getty Group: Getty and the Retained Subsidiaries, collectively.

Getty Pro Forma Balance Sheet: The Pro Forma Consolidated Balance Sheet for Getty, after giving effect to the Distribution, as of October 31, 1996 attached hereto as Exhibit A.

Highspire Assets: All tangible and intangible personal property and equipment that Aero owns or to which it has rights and that is located at or used in connection with the operation of the property is known as the Highspire Terminal.

Holders: The holders of record of Getty Common Stock as of the Distribution Record Date.

HSR Act: The Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

Indemnified Environmental Liabilities: All Liabilities relating to (i) the pre-closing environmental liabilities and obligations set forth on Schedule 1.01(a) hereto, (ii) all future upgrades set forth on Schedule 1.01(b) hereto necessary to cause USTs to conform to the 1998 federal standards for USTs, and (iii) all environmental liabilities and obligations arising out of discharges with respect to the properties containing USTs that have not been upgraded to conform to the 1998 federal standards for USTs, that are discovered prior to the date such USTs are upgraded to meet the 1998 federal standards.

Insurance Administration: With respect to each Policy, the accounting for premiums, retrospectively rated premiums, defense costs, adjuster’s fees, indemnity payments, deductibles and retentions as appropriate under the terms and conditions of such Policy; and the reporting to excess insurance carriers of any losses or claims in accordance with Policy provisions, and the distribution of Insurance Proceeds as contemplated by this Agreement.

Insurance Proceeds: Those moneys (i) received by an insured from an insurance carrier or (ii) paid by an insurance carrier on behalf of an insured, in either case net of any applicable premium adjustment, retrospectively-rated premium, deductible, retention, cost or reserve paid or held by or for the benefit of such insured.

Insured Claims: Those Liabilities that, individually or in the aggregate, are covered within the terms and conditions of any of the Policies, whether or not subject to deductibles, co-insurance, uncollectability or retrospectively rated premium adjustments, but only to the extent that such Liabilities are within applicable Policy limits, including aggregates.

IRS: The Internal Revenue Service.

KOSCO: Kingston Oil Supply Corp., a New York corporation.

Liabilities: Any and all debts, liabilities and obligations, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, including all costs and expenses relating thereto, and including, without limitation, those debts, liabilities and obligations arising under any law, rule, regulation, Action, threatened Action, order or consent decree of any governmental

entity or any award of any arbitrator of any kind, and those arising under any contract, commitment or undertaking.

Marketing Adjustment Amount: The difference between the Marketing Initial Target Net Working Capital and the Marketing Initial Net Working Capital.

Marketing Balance Sheet: The Consolidated Balance Sheet for Marketing as of October 31, 1996 attached hereto as Exhibit D.

Marketing Board: The Board of Directors of Marketing.

Marketing Books and Records: The books and records (including computerized records, ledgers, files and software) of Marketing and the Marketing Subsidiaries and all books and records owned by Getty and its Subsidiaries that relate to the Marketing Business or are necessary to operate the Marketing Business including, without limitation, all such books and records relating to Marketing Employees, all files relating to any Action being assumed by Marketing as part of the Marketing Liabilities, original corporate minute books, stock ledgers and certificates and corporate seals, and all licenses, leases, agreements and filings relating to Marketing, the Marketing Subsidiaries or the Marketing Business (but not including the Getty Books and Records, provided that Marketing shall have access to, and have the right to obtain duplicate copies of, the Getty Books and Records in accordance with the provisions of Article VII).

Marketing Business: The businesses conducted by Marketing and the Marketing Subsidiaries and the businesses conducted pursuant to or utilizing the Marketing Assets, including without limitation (i) the purchase, storage, distribution, marketing and sale of gasoline and diesel fuel and other related products at wholesale and through terminals and

a retail service station network and (ii) the purchase, storage, transportation and sale of home heating oil to residential and commercial customers in the New York Mid-Hudson Valley.

Marketing Bylaws: The Bylaws of Marketing, substantially in the form of Exhibit B, to be in effect at the Distribution Date.

Marketing Charter: The Articles of Incorporation of Marketing, substantially in the form of Exhibit C, to be in effect at the Distribution Date.

Marketing Common Stock: The common stock, par value $.01 per share, of Marketing.

Marketing Employees: The persons employed by the Marketing Group on the Distribution Date, all of whom (except those employed pursuant to union contracts or to agreements providing for continued employment upon a change in control of Getty) are at will employees.

Marketing Equipment: Certain equipment of Getty relating to the storage, distribution and marketing of motor fuel, including the tanks (other than the Retained USTs), racks, signs, motor fuel pumps, canopies and associated equipment described on Schedule 1.01(c) hereto.

Marketing Group: Marketing and the Marketing Subsidiaries, collectively.

Marketing Initial Cash Balance: The amount of cash sufficient to cause Marketing Initial Net Working Capital to equal Marketing Initial Target Net Working Capital.

Marketing Initial Net Working Capital: The excess of the book value of the current assets of the Marketing Group over the book value of the current liabilities of the

Marketing Group as of the Distribution Date, as determined in accordance with Section 2.06(b) hereof.

Marketing Initial Target Net Working Capital: $1,100,000.

Marketing Liabilities: (i) All of the Liabilities of the Marketing Group under, or to be retained or assumed by Marketing or any of the Marketing Subsidiaries pursuant to, this Agreement or any of the Related Agreements, (ii) all Liabilities for payment of outstanding drafts of Getty attributable to the Marketing Business existing as of the Distribution Date, and (iii) all other Liabilities arising out of or in connection with any of the Marketing Assets or the Marketing Business, determined on a basis consistent with the determination of the Liabilities of Marketing included on the Marketing Balance Sheet (but excluding (i) all Indemnified Environmental Liabilities and (ii) any Financing Obligations of Getty or any of the Retained Subsidiaries, except to the extent otherwise set forth above or reflected in the Marketing Balance Sheet).

Marketing Policies: All Policies, current or past, which are owned or maintained by or on behalf of Getty or any of its Affiliates or predecessors, that relate to the Marketing Business but do not relate to the Retained Business, and which Policies are either maintained by the Marketing Group or assignable to the Marketing Group.

Marketing Security Deposits: Any claim to or right in (i) monies deposited with third parties to secure the performance of any obligation of Getty, Marketing or any of their subsidiaries incurred in connection with the Marketing Business or any Marketing Asset and (ii) monies deposited with Getty by motor fuel station operators or dealers.

Marketing Subsidiaries: The Transferred Subsidiaries and all Subsidiaries of Marketing or the Transferred Subsidiaries at the time of the Distribution.

Master Lease: The Master Lease between Marketing and Getty, which agreement shall be entered into on or before the Distribution Date in substantially the form of Exhibit E hereto.

NYSE: The New York Stock Exchange, Inc.

Office Space License: The Office Space License between Marketing and Getty, which agreement shall be entered into on or prior to the Distribution Date in substantially the form of Exhibit F hereto.

Person: Any individual, corporation, partnership, association, trust, estate or other entity or organization, including any governmental entity or authority.

Petro: PT Petro Corp., a New York corporation.

Policies: Insurance policies and insurance contracts of any kind (each a “Policy”) relating to the Marketing Business or the Retained Business as conducted prior to the Distribution Date, including without limitation primary and excess policies, comprehensive general liability policies, and automobile and workers’ compensation insurance policies, together with the rights, benefits and privileges thereunder.

Privileged Information: All Information as to which Getty, Marketing or any of their Subsidiaries are entitled to assert the protection of a Privilege.

Privileges: All privileges that may be asserted under applicable law including, without limitation, privileges arising under or relating to the attorney-client relationship (including but not limited to the attorney-client and work product privileges), the accountant-client privilege, and privileges relating to internal evaluative processes.

Related Agreements: All of the agreements, instruments, understandings, assignments or other arrangements which are entered into in connection with the transactions contemplated hereby and which are set forth in a writing, including, without limitation, the Conveyancing and Assumption Instruments, the Master Lease, the Tax Sharing Agreement, the Trademark License Agreement, the Services Agreement and the Office Space License.

Retained Assets: The assets of Getty other than the Marketing Assets, including without limitation (i) the capital stock of the Retained Subsidiaries, (ii) assets relating to the Retained Business, determined on a basis consistent with the determination of assets included on the Getty Pro Forma Balance Sheet, (iii) all of the assets expressly allocated to Getty or any of the Retained Subsidiaries under this Agreement or the Related Agreements, and (iv) any other assets of Getty and its Affiliates relating to the Retained Business.

Retained Business: The businesses conducted by Getty and its Affiliates other than the Marketing Business, including without limitation the Aero Home Heating Oil Business and the Real Estate Business.

Retained Employees: The persons employed by the Getty Group on the Distribution Date, all of whom (except those employed pursuant to union contracts or to agreements providing for continued employment upon a change in control of Getty) are at will employees.

Retained Liabilities: (i) All of the Liabilities arising out of or in connection with the Retained Assets or the Retained Business determined on a basis consistent with the determination of the Liabilities of Getty included on the Getty Pro Forma Consolidated Balance Sheet, (ii) all of the Liabilities of Getty under, or to be retained or assumed by

Getty or any of the Retained Subsidiaries pursuant to, this Agreement or any of the Related Agreements, (iii) any Financing Obligations not constituting Marketing Liabilities, (iv) any Liabilities arising out of the settlement of lawsuits relating to the Distribution (other than those Liabilities that constitute Marketing Liabilities), (v) all Liabilities for the payment of outstanding drafts of Getty attributable to the Retained Business existing as of the Distribution Date, (vi) all Indemnified Environmental Liabilities, and (vii) all other Liabilities of Getty not constituting Marketing Liabilities.

Retained Policies: All Policies, current or past, that are owned or maintained by or on behalf of any member of the Getty Group (or any of its predecessors) which relate to the Retained Business but do not relate to the Marketing Business.

Retained Subsidiaries: All Subsidiaries of Getty, except Marketing and the Marketing Subsidiaries.

Retained USTs: The USTs that, pursuant to Section 7.6 of the Master Lease, are retained by Getty after the Distribution Date.

Securities Act: The Securities Act of 1933, as amended.

Services Agreement: The Services Agreement, which shall be entered into between Getty and Marketing on or prior to the Distribution Date in substantially the form attached hereto as Exhibit G.

Shared Policies: All Policies, current or past, that are owned or maintained by or on behalf of Getty or any of its Subsidiaries or their respective predecessors that relate to both the Retained Business and the Marketing Business, and all other Policies not constituting Marketing Policies or Retained Policies, as specified on Schedule 1.01(d) hereto.

Subsidiary: With respect to any Person, (a) any corporation of which at least a majority in interest of the outstanding voting stock (having by the terms thereof voting power under ordinary circumstances to elect a majority of the directors of such corporation, irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned or controlled by such Person, by one or more Subsidiaries of such Person, or by such Person and one or more of its Subsidiaries, or (b) any non-corporate entity in which such Person, one or more Subsidiaries of such Person, or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the date of determination thereof, has at least majority ownership interest.

Tax Ruling: The private letter ruling issued by the Internal Revenue Service on September 11, 1996, with respect to certain tax matters relating to the Distribution.

Tax Sharing Agreement: The Tax Sharing Agreement between Marketing and Getty, which agreement shall be entered into on or prior to the Distribution Date in substantially the form of Exhibit H attached hereto.

Terminals: Getty Terminals Corp., a New York corporation.

Trademark License Agreement: The Trademark License Agreement between Getty and Marketing, pursuant to which Getty will license certain intellectual property rights to Marketing, which agreement shall be entered into on or prior to the Distribution Date in substantially the form of Exhibit I attached hereto.

Transferred Subsidiaries: Terminals, KOSCO, Gasway and Petro.

Transferred Subsidiary Stock: All of the issued and outstanding capital stock of the Transferred Subsidiaries.

UST: An underground storage tank including related piping, underground pumps, wiring and monitoring devices.

Section 1.02 Terms Defined Elsewhere in Agreement.

Each of the following terms is defined in the Section set forth opposite such term:


	Term			Section

	Aero Home Heating Oil Business			Recitals
	Asset Transfers			Recitals
	Consents			4.01
	Corporate Expenses			2.06
	Current Assets			2.06
	Current Liabilities			2.06
	Distribution			Recitals
	Excess Revolving Credit Facilities Balance			2.06
	Form 10 Registration Statement			4.01
	Getty			Recitals
	Indemnifiable Loss			5.01
	Indemnifying Party			5.03
	Indemnitee			5.03
	Information			7.02
	Marketing			Recitals
	Marketing Assets			2.02
	Marketing Indemnitees			5.01
	Marketing Self Insurance Liabilities			8.06
	Real Estate Business			Recitals
	Retained Self Insurance Liabilities			8.06
	Third-Party Claim			5.04
	Working Capital Accounts			2.06
	Working Capital Balance			2.06

ARTICLE II

TRANSFER OF ASSETS

Section 2.01 Merger of Aero into Getty. Prior to the Distribution Date, Getty shall take or cause to be taken all actions necessary to cause Aero to (i) TRANSFER CERTAIN OF ITS ASSETS TO CERTAIN SUBSIDIARIES AND (ii) MERGE INTO GETTY. PRIOR TO THE MERGER OF AERO INTO GETTY, GETTY SHALL TAKE OR CAUSE TO BE TAKEN ALL ACTIONS NECESSARY TO CAUSE THE TRANSFER, ASSIGNMENT, DELIVERY, AND CONVEYANCE TO MARKETING OR THE MARKETING SUBSIDIARIES OF ALL OF AERO’S RIGHT, TITLE AND INTEREST IN THE MARKETING ASSETS, INCLUDING WITHOUT LIMITATION THE HIGHSPIRE ASSETS, AND MARKETING SHALL TAKE OR CAUSE TO BE TAKEN ALL ACTIONS NECESSARY TO CAUSE THE ASSUMPTION BY MARKETING OR THE MARKETING SUBSIDIARIES OF THE MARKETING LIABILITIES.

Section 2.02 Transfer of Assets to Marketing. Prior to the Distribution Date, Getty shall take or cause to be taken all actions necessary to cause the transfer, assignment, delivery and conveyance to Marketing or the Marketing Subsidiaries of all of Getty’s and its Subsidiaries’ right, title and interest in the Marketing Assets, and Marketing shall take or cause to be taken all actions necessary to cause the assumption by Marketing or the Marketing Subsidiaries of the Marketing Liabilities. The “Marketing Assets” shall consist of the following assets:


	(i)	the Transferred Subsidiary Stock;

	(ii)	the Marketing Security Deposits;

	(iii)	the Marketing Books and Records;

	(iv)	the Marketing Equipment;

	(v)	all licenses and permits relating to the Marketing Business, to the extent such licenses and permits are transferable;

	(vi)	all of the other assets to be assigned to Marketing under this Agreement or the Related Agreements; and

	(vii)	all other assets (including, without limitation, all accounts receivable, deferred income taxes, prepaid expenses, reserves and other current assets) relating to the Marketing Business, determined on a basis consistent with the determination of the assets included on the Marketing Balance Sheet.

Section 2.03 Transfers Not Effected Prior to the Distribution. To the extent that any transfers contemplated by this Article II shall not have been fully effected on the Distribution Date, the parties shall cooperate to effect such transfers as promptly as shall be practicable following the Distribution Date. Nothing herein shall be deemed to require the transfer of any assets or the assumption of any Liabilities that by their terms or operation of law cannot be transferred or assumed; provided, however, that Getty and Marketing and their respective Subsidiaries and Affiliates shall cooperate in seeking to obtain any necessary consents or approvals for the transfer of all assets and Liabilities contemplated to be transferred pursuant to this Article II. In the event that any such transfer of assets or Liabilities has not been consummated as of the Distribution Date, the party retaining such asset or Liability shall thereafter hold such asset in trust for the use and benefit of the party entitled thereto (at the expense of the party entitled thereto) and retain such Liability for the account of the party by whom such Liability is to be assumed pursuant hereto, and take such other actions as may be reasonably required in order to place the parties, insofar as reasonably possible, in the same position as would have existed had such asset been transferred or such Liability been assumed as contemplated hereby. As and when any such asset or Liability becomes transferable, such transfer and assumption shall be effected forthwith. The parties agree that, except as described in this section below, as of the Distribution Date, each party hereto shall be deemed to have acquired complete and sole beneficial ownership over all of the assets, together with all rights, powers and privileges incidental thereto, and shall be deemed to have assumed in accordance with the terms of this Agreement all of the Liabilities, and all duties, obligations and responsibilities incidental thereto, which such party is entitled to acquire or required to assume pursuant to the terms of this Agreement.

Section 2.04 Cooperation Regarding Assets. In the case that at any time after the Distribution Date, Marketing reasonably determines that any of the Retained Assets are essential for the conduct of the Marketing Business, or Getty reasonably determines that any of the Marketing Assets are essential for the conduct of the Retained Business, and the nature of such assets makes it impracticable for Marketing or Getty, as the case may be, to obtain substitute assets or to make alternative arrangements on commercially reasonable terms to conduct their respective businesses, and reasonable provisions for the use thereof are not already included in the Related Agreements, then Marketing (with respect to the Marketing Assets) and Getty (with respect to the Retained Assets) shall cooperate to make such assets available to the other party on commercially reasonable terms, as may be reasonably required for such party to maintain normal business operations (provided that such assets shall be required to be made available only until such time as the other party may reasonably obtain substitute assets or make alternative arrangements on commercially reasonable terms to permit it to maintain normal business operations).

Section 2.05 No Representations or Warranties; Consents. Each of the parties hereto understands and agrees that no party hereto is, in this Agreement or in any other agreement or document contemplated by this Agreement or otherwise, representing or warranting in any way (i) as to the value or freedom from encumbrance of, or any other matter concerning, any assets of such party or (ii) as to the legal sufficiency to convey title to any asset transferred pursuant to this Agreement or any Related Agreement, including, without limitation, any Conveyancing or Assumption Instruments. It is also agreed and understood that there are no warranties, express or implied, as to the merchantability or fitness of any of the assets either transferred to or retained by the parties, as the case may

be, and all such assets shall be “as is, where is” and “with all faults” (provided, however, that the absence of warranties shall have no effect upon the allocation of Liabilities under this Agreement). Similarly, each party hereto understands and agrees that no party hereto is, in this Agreement or in any other agreement or document contemplated by this Agreement or otherwise, representing or warranting in any way that the obtaining of any consents or approvals, the execution and delivery of any amendatory agreements and the making of any filings or applications contemplated by this Agreement will satisfy the provisions of any or all applicable laws or judgments or other instruments or agreements relating to such assets. Notwithstanding the foregoing, the parties shall use their good faith efforts to obtain all consents and approvals, to enter into all reasonable amendatory agreements and to make all filings and applications which may be reasonably required for the consummation of the transactions contemplated by this Agreement, and shall take all such further reasonable actions as shall be reasonably necessary to preserve for each of the Marketing Group and the Getty Group, to the greatest extent feasible, the economic and operational benefits of the allocation of assets and Liabilities provided for in this Agreement. In case at any time after the Distribution Date any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each party to this Agreement shall take all such necessary or desirable action.

Section 2.06 Conveyancing and Assumption Instruments. In connection with the Asset Transfers and the assumptions of Liabilities contemplated by this Agreement, the parties shall execute or cause to be executed by the appropriate entities the Conveyancing and Assumption Instruments in such forms as the parties shall reasonably agree, including the assignment of franchise rights and the assignment and assumption of existing agreements as

set forth in Schedule 2.06 hereto. The transfer of capital stock shall be effected by means of delivery of stock certificates and executed stock powers and notation on the stock record books of the corporation or other legal entities involved and, to the extent required by applicable law, by notation on public registries.

(a) Cash Allocation on the Distribution Date. No cash shall be transferred on the Distribution Date. In the event the actual cash balances of Marketing and its Subsidiaries as of the Distribution are less than the Marketing Initial Cash Balance, the amount of the deficiency shall be recorded in the accounts of Marketing as of the Distribution Date as a payable from Getty to Marketing (which payable will be paid as promptly as practicable after the determination of such amount pursuant to Section 2.06(b)) and in the event the actual Cash balances of Marketing and its Subsidiaries as of the Distribution Date exceeds the Marketing Initial Cash Balance, the amount of such excess shall be recorded in the accounts of Getty and Marketing as of the Distribution Date as a payable from Marketing to Getty (which payable will be paid as promptly as practicable following the determination of such amount pursuant to Section 2.06(b)).

(b) Post-Distribution Adjustment. Within [30] days of the Distribution Date, Marketing shall prepare a combining balance sheet of the Marketing Group showing the Marketing Initial Net Working Capital and the Marketing Adjustment Amount. If the

Marketing Adjustment Amount exceeds zero, Getty shall promptly pay to Marketing such Marketing Adjustment Amount. If the Marketing Adjustment Amount is less than zero, Marketing shall promptly pay to Getty such Marketing Adjustment Amount.

(c) Cash Management After the Distribution Date. Marketing shall separate from Getty, and establish and maintain a cash management system and accounting records with respect to the Marketing Business effective as of 12:01 a.m. on the day following the Distribution Date; thereafter, (i) any payments by Getty or its Retained Subsidiaries on behalf of Marketing or the Marketing Subsidiaries in connection with the Marketing Business shall be recorded in the accounts of the Marketing Group as a payable from the Marketing Group to the Getty Group; (ii) any payments by Marketing or the Marketing Subsidiaries on behalf of Getty or its Retained Subsidiaries in connection with the Retained Business shall be recorded in the accounts of the Getty Group as a payable from the Getty Group to the Marketing Group; (iii) any cash payments received by Getty and the Retained Subsidiaries relating to the Marketing Business or the Marketing Assets shall be recorded in the accounts of the Getty Group as a payable from the Getty Group to the Marketing Group; (iv) any cash payments received by Marketing or the Marketing Subsidiaries relating to the Retained Business or the Retained Assets shall be recorded in the accounts of the Marketing Group as a payable from the Marketing Group to the Getty Group; (v) Marketing and Getty shall make adjustments for late deposits, checks returned for not sufficient funds and other post-Distribution Date transactions as shall be reasonable under the circumstances consistent with the purpose and intent of this Agreement; and (vi) the net balance due to the Getty Group or the Marketing Group, as the case may be, in respect of the aggregate amounts of clauses (i), (ii), (iii), (iv) and (v) shall be paid by Marketing or

Getty, as appropriate, as promptly as practicable. For purposes of this Section 2.06(c), the parties contemplate that the Retained Business and the Marketing Business, including but not limited to the administration of accounts payable and accounts receivable, will be conducted in the normal course.

(d) Audit and Disputes. All transactions contemplated in this Section 2.06 shall be subject to audit by the parties, and any dispute thereunder shall be resolved by an independent firm of certified public accounts mutually acceptable to Getty and Marketing, whose decision shall be final and unappealable.

ARTICLE III

ASSUMPTION AND SATISFACTION OF LIABILITIES

Section 3.01 Assumption and Satisfaction of Liabilities. Except as set forth in the Tax Sharing Agreement, the Master Lease or other Related Agreements, effective as of and after the Distribution Date, (a) Marketing shall, and/or shall cause the Marketing Subsidiaries to, assume, pay, perform, and discharge in due course all of the Marketing Liabilities and (b) Getty shall, and/or shall cause the Retained Subsidiaries to, pay, perform and discharge in due course all of the Retained Liabilities.

ARTICLE IV

THE DISTRIBUTION

Section 4.01 Cooperation Prior to the Distribution.

(a) Getty and Marketing have prepared, and Marketing has filed with the Commission, a Form 10 registration statement with respect to the registration under the Exchange Act of the Marketing Common Stock (the “Form 10 Registration Statement”).

(b) Getty and Marketing shall cooperate in preparing, filing with the

Commission and causing to become effective any registration statements or amendments thereto which are appropriate to reflect the establishment of, or amendments to, the Employee Stock Ownership Plan and any employee benefit plans and other plans contemplated by the Agreement.

(c) Getty and Marketing shall take all such action as may be necessary or appropriate under the securities or blue sky laws of states or other political subdivisions of the United States in connection with the transactions contemplated by this Agreement and the Related Agreements.

(d) Getty and Marketing shall prepare, and Marketing shall file and pursue, an application to permit the listing of Marketing Common Stock on the NYSE.

(e) Getty and Marketing shall make any requisite filings under the HSR Act.

(f) Getty and Marketing shall use all reasonable efforts to obtain any third-party consents or approvals necessary or desirable in connection with the transactions contemplated hereby, including without limitation the consents or approvals set forth on Schedule 4.01 hereto (“Consents”).

(g) Getty and Marketing will use all reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary or desirable under applicable law, to consummate the transactions contemplated under this Agreement.

Section 4.02. Getty Board Action; Conditions Precedent to the Distribution The Getty Board shall, in its discretion, establish the Distribution Record Date and the Distribution Date and any appropriate procedures, including establishing the exchange ratio,

in connection with the Distribution. In no event shall the Distribution occur unless the following conditions shall have been satisfied:

(i) the transactions contemplated by Sections 2.01 and 2.02 shall have been consummated in all material respects;

(ii) Getty shall have modified its existing stock option plans and/or amended option grants thereunder to insure that the Distribution does not adversely affect the current holders of options under those plans;

(iii) the Marketing Common Stock shall have been approved for listing on the NYSE, subject to official notice of issuance;

(iv) the Marketing Board, comprised as contemplated by Section 6.01, shall have been elected by Getty, as sole stockholder of Marketing, and the Marketing Charter and Marketing Bylaws shall have been adopted and shall be in effect;

(v) the Marketing Board shall have established the Employee Stock Ownership Plan;

(vi) the Form 10 Registration Statement shall have become effective under the Exchange Act;

(vii) the Tax Ruling shall have been granted in form and substance satisfactory to the Getty Board, in its sole discretion;

(viii) a favorable no-action letter shall have been obtained from the Securities and Exchange Commission regarding issuance of Marketing Common Stock and certain other matters;

(ix) any applicable waiting period under the HSR Act shall have expired (or been earlier terminated);

(x) Getty and Marketing shall have obtained all Consents and any other consents, the failure of which to obtain would, in the determination of the Getty Board, have a material adverse effect on Getty or Marketing; and

(xi) Getty and Marketing shall have entered into the Related Agreements; provided, however, that (i) any such condition may be waived by the Getty Board in its sole discretion upon the advice of counsel, and (ii) the satisfaction of such conditions shall not create any obligation on the part of Getty or any other party hereto to effect the Distribution or in any way limit Getty’s power of termination set forth in Section 9.07 or alter the consequences of any such termination from those specified in such Section.

Section 4.03 The Distribution. On the Distribution Date, subject to the conditions and rights of termination set forth in this Agreement, Getty shall deliver to the Agent a share certificate representing all of the then outstanding shares of Marketing Common Stock owned by Getty and shall instruct the Agent to distribute, on or as soon as practicable following the Distribution Date, such Marketing Common Stock to the Holders. Marketing agrees to provide all share certificates that the Agent shall require in order to effect the Distribution.

ARTICLE V

INDEMNIFICATION

Section 5.01 Indemnification by Getty. Except as otherwise expressly set forth in a Related Agreement, Getty shall indemnify, defend and hold harmless Marketing and each of the Marketing Subsidiaries, and each of their respective directors, officers, employees, agents and Affiliates and each of the

heirs, executors, successors and assigns of any of the foregoing (the “Marketing Indemnitees”) from and against the Retained Liabilities.

Section 5.02 Indemification by Marketing. Except as otherwise expressly set forth in a Related Agreement, Marketing shall indemnify, defend and hold harmless Getty and each of the Retained Subsidiaries, and each of their directors, officers, employees, agents and Affiliates and each of the heirs, executors, successors and assigns of any of the foregoing (the “Getty Indemnitees”) from and against the Marketing Liabilities.

Section 5.03. Insurance Proceeds. The amount that any party (an “Indemnifying Party”) is or may be required to pay to any other Person (an “Indemnitee”) pursuant to Section 5.01 or Section 5.02 shall be reduced (including, without limitation, retroactively) by any Insurance Proceeds or other amounts actually recovered by or on behalf of such Indemnitee in reduction of the related Indemnifiable Loss. If an Indemnitee shall have received the payment required by this Agreement from an Indemnifying Party in respect of an Indemnifiable Loss and shall subsequently actually receive Insurance Proceeds, or other amounts in respect of such Indemnifiable Loss as specified above, then such Indemnitee shall pay to such Indemnifying Party a sum equal to the amount of such Insurance Proceeds or other amounts actually received.

Section 5.04 Procedure for Indemnification.

(a) Except as may be set forth in a Related Agreement, if an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including, without limitation, any governmental entity) who is not a party to this Agreement or to any of the Related Agreements of any claim or of the commencement by any such Person of any Action (a “Third-Party Claim”) with respect to which an Indemnifying Party may be obligated to

provide indemnification pursuant to this Agreement, such Indemnitee shall give such Indemnifying Party written notice thereof promptly after becoming aware of such Third-Party Claim; provided, that the failure of any Indemnitee to give notice as required by this Section 5.04 shall not relieve the Indemnifying of its obligations under this Article V, except to the extent that such Indemnifying Party is prejudiced by such failure to give notice. Such notice shall describe the Third-Party Claim in reasonable detail, and shall indicate the amount (estimated if necessary) of the Indemnifiable Loss that has been or may be sustained by such Indemnitee.

(b) An Indemnifying Party may elect to defend or to seek to settle or compromise, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any Third-Party Claim, provided that the Indemnifying Party must confirm in writing that it agrees that Indemnitee is entitled to indemnification hereunder in respect of such Third-Party Claim. Within 30 days of the receipt of notice from an Indemnitee in accordance with Section 5.04(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify the Indemnitee of its election whether to assume responsibility for such Third-Party Claim (provided that if the Indemnifying Party does not so notify the Indemnitee of its election within 30 days after receipt of such notice from the Indemnitee, the Indemnifying Party shall be deemed to have elected not to assume responsibility for such Third-Party Claim), and such Indemnitee shall cooperate in the defense or settlement or compromise of such Third-Party Claim. After notice from an Indemnifying Party to an Indemnitee of its election to assume responsibility for a Third-Party Claim, such Indemnifying Party shall not be liable to such Indemnitee under this Article V for any legal or other expenses (except expenses approved in advance by the Indemnifying

Party) subsequently incurred by such Indemnitee in connection with the defense thereof; provided, that if the defendants in any such claim include both the Indemnifying Party and one or more Indemnitees and in such Indemnitees’ reasonable judgment a conflict of interest between such Indemnitees and such Indemnifying Party exists in respect of such claim, such Indemnitees shall have the right to employ separate counsel and in that event the reasonable fees and expenses of such separate counsel (but not more than one separate counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such Indemnifying Party. If an Indemnifying Party elects not to assume responsibility for a Third-Party Claim (which election may be made only in the event of a good faith dispute that a claim was inappropriately tendered under Section 5.01 or 5.02, as the case may be) such Indemnitee may defend or (subject to the following sentence) seek to compromise or settle such Third-Party Claim. Notwithstanding the foregoing, an Indemnitee may not settle or compromise any claim without prior written notice to Indemnifying Party, which shall have the option within ten days following the receipt of such notice (i) to disapprove the settlement and assume all past and future responsibility for the claim, including reimbursing the Indemnitee for prior expenditures in connection with the claim, or (ii) to disapprove the settlement and continue to refrain from participation in the defense of the claim, in which event the Indemnifying Party shall have no further right to contest the amount or reasonableness of the settlement if the Indemnitee elects to proceed therewith, or (iii) to approve the amount of the settlement, reserving the Indemnifying Party’s right to contest the Indemnitee’s right to indemnity, or (iv) to approve and agree to pay the settlement. In the event the Indemnifying Party makes no response to such written notice from the Indemnitee, the Indemnifying Party shall be deemed to have elected option (ii).

(c) If an Indemnifying Party chooses to defend or to seek to compromise any Third-Party Claim, the Indemnitee shall make available to such Indemnifying Party any personnel and any books, records or other documents within its control or which it otherwise has the ability to make available that are necessary or appropriate for such defense.

(d) Notwithstanding anything else in this Section 5.04 to the contrary, an Indemnifying Party shall not settle or compromise any Third-Party Claim unless such settlement or compromise contemplates as an unconditional term thereof the giving by such claimant or plaintiff to the Indemnitee of a written release from all liability in respect of such Third-Party Claim (and provided further that such settlement may not provide for any non-monetary relief by Indemnitee without the written consent of Indemnitee). In the event the Indemnitee shall notify the Indemnifying Party in writing that such Indemnitee declines to accept any such settlement or compromise, such Indemnitee may continue to contest such Third-Party Claim, free of any participation by such Indemnifying Party, at such Indemnitee’s sole expense. In such event, the obligation of such Indemnifying Party to such Indemnitee with respect to such Third-Party Claim shall be equal to (i) the costs and expenses of such Indemnitee prior to the date such Indemnifying Party notifies such Indemnitee of the offer to settle or compromise (to the extent such costs and expenses are otherwise indemnifiable hereunder) plus (ii) the lesser of (A) the amount of any offer of settlement or compromise which such Indemnitee declined to accept or (B) the actual out-of-pocket amount such Indemnitee is obligated to pay subsequent to such date as a result of such Indemnitee’s continuing to pursue such Third-Party Claim.

(e) Any claim on account of an Indemnifiable Loss which does not result from a Third-Party Claim shall be asserted by written notice given by the Indemnitee to the

applicable Indemnifying Party. Such Indemnifying Party shall have a period of 15 days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such 15-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such 15-day period or rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such party under applicable law or under this Agreement.

(f) In addition to any adjustments required pursuant to Section 5.03, if the amount of any Indemnifiable Loss shall, at any time subsequent to the payment required by this Agreement, be reduced by recovery, settlement or otherwise, the amount of such reduction, less any expenses incurred in connection therewith, shall promptly be repaid by the Indemnitee to the Indemnifying Party.

(g) In the event of payment by an Indemnifying Party to any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or circumstances in respect of which such Indemnitee may have any right or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right or claim.

Section 5.05 Remedies Cumulative. The remedies provided in this Article V shall be cumulative and shall not preclude assertion by any Indemnitee of any other rights or the seeking of any and all other remedies against any Indemnifying Party.

Section 5.06. Survival of Indemnities. The obligations of each of Marketing and Getty under this Article V shall survive the sale or other transfer by it of any assets or businesses or the assignment by it of any Liabilities, with respect to any Indemnifiable Loss of the other related to such assets, businesses or Liabilities.

ARTICLE VI

CERTAIN ADDITIONAL MATTERS

Section 6.01 Marketing Board. Marketing and Getty shall take all actions which may be required to constitute, effective as of the Distribution Date, the following persons as the directors of Marketing: (i) Ronald E. Hall, Richard E. Montag and Matthew J. Chanin (none of whom shall be officers, directors or owners of more than 5% of the outstanding voting stock of Getty) and (ii) Leo Liebowitz and Milton Safenowitz.

Section 6.02 Resignations; Getty Board.

(a) Marketing shall cause all of its directors and Marketing Employees to resign, effective as of the Distribution Date, from all boards of directors or similar governing bodies of Getty or any of its Retained Subsidiaries on which they serve, and from all positions as officers or employees of Getty or any of its Retained Subsidiaries in which they serve, except (i) Leo Liebowitz shall serve as a director, President and Chief Executive Officer of Getty and as a director and Chief Executive Officer of Marketing and as an officer or director of certain of the Marketing Subsidiaries and certain of the Retained Subsidiaries, (ii) Milton Safenowitz shall serve as a director of Marketing and certain of the Marketing Subsidiaries and as a director of Getty and certain of the Retained Subsidiaries and (iii) as set forth in the Services Agreement. Getty shall cause all of its directors and the Retained Employees to resign from all boards of directors or similar governing bodies of Marketing or

any of its subsidiaries on which they serve, and from all positions as officers or employees of Marketing or any of its subsidiaries in which they serve, except to the extent specified in the preceding sentence.

Section 6.03 Charter and Bylaws. On or prior to the Distribution Date, Marketing shall adopt the Marketing Charter and the Marketing Bylaws, and shall file the Marketing Charter with the Secretary of State of the State of Maryland.

Section 6.04 Employee Stock Ownership Plan. On or prior to the Distribution Date, Marketing shall approve and take all steps necessary to establish the Employee Stock Ownership Plan.

Section 6.05 Certain Post-Distribution Transactions.

(a) Marketing. Marketing shall, and shall cause each of the Marketing Subsidiaries to, comply with each representation and statement made, or to be made, to any taxing authority in connection with any ruling obtained, or to be obtained, by Getty Marketing acting together, from any such taxing authority with respect to any transaction contemplated by this Agreement; neither Marketing nor any of the Marketing Subsidiaries shall take or omit any action inconsistent therewith, unless, (i) required to do so by law, (ii) permitted to do so by the prior written consent of Getty, or (iii) pursuant to a favorable supplemental ruling letter reasonably satisfactory to Getty that such act or omission would not adversely affect the tax consequences of the Distribution to Getty or the stockholders of Getty, as set forth in any ruling issued by any taxing authority. Neither Marketing nor any of the Marketing Subsidiaries has a present intention to take or omit any such action.

(b) Getty. Getty shall, and shall cause each of the Retained Subsidiaries to, comply with each representation and statement made, or to be made, to any taxing

authority in connection with any ruling obtained, by Getty and Marketing acting together, from any such taxing authority with respect to any transaction contemplated by this Agreement; neither Getty nor any of the Retained Subsidiaries shall take or omit any action inconsistent therewith, unless, (i) required to do so by law, (ii) permitted to do so by the prior written consent of Marketing, or (iii) pursuant to a favorable supplemental ruling letter reasonably satisfactory to Marketing that such act or omission would not adversely affect the tax consequences of the Distribution to Marketing or the stockholders of Marketing, as set forth in any ruling issued by any taxing authority. Neither Getty nor any of the Retained Subsidiaries has a present intention to take or omit any such action.

Section 6.06 Corporate Name. Effective as of the Distribution Date, Getty shall change its corporate name to “Getty Realty Corp.,” either by statutory merger or by action of the stockholders. All references to Getty herein shall be references to such corporation both before and after such corporate name change.

ARTICLE VII

ACCESS TO INFORMATION AND SERVICES

Section 7.01 Provision of Corporate Records.

(a) Except as may otherwise be provided in a Related Agreement, Getty shall arrange as soon as practicable following the Distribution Date, to the extent not previously delivered in connection with the transactions contemplated in Article II, for the transportation (at Marketing’s cost) to Marketing of the Marketing Books and Records in its possession, except to the extent such items are already in the possession of Marketing or a Marketing Subsidiary. Such Marketing Books and Records shall be the property of

Marketing, but shall be available to Getty for review and duplication until Getty shall notify Marketing in writing that such records are no longer of use to Getty.

(b) Except as otherwise provided in a Related Agreement, Marketing shall arrange as soon as practicable following the Distribution Date, to the extent not previously delivered in connection with the transactions contemplated in Article II, for the transportation (at Getty’s cost) to Getty of the Getty Books and Records in its possession, except to the extent such items are already in the possession of Getty. The Getty Books and Records shall be the property of Getty, but shall available to Marketing for review and duplication until Marketing shall notify Getty in writing that such records are no longer of use to Marketing.

Section 7.02 Access to Information. Except as otherwise provided in a Related Agreement, from and after the Distribution Date, Getty shall afford to Marketing and its authorized accountants, counsel and other designated representatives reasonable access (including using reasonable efforts to give access to persons or firms possessing information) and duplicating rights during normal business hours to all records, books, contracts, instruments, computer data, software and systems and other data and information relating to pre-Distribution operations (collectively, “Information”) within Getty’s possession insofar as such access is reasonably required by Marketing for the conduct of its business, subject to appropriate restrictions for classified or Privileged Information. Similarly, except as otherwise provided in a Related Agreement, Marketing shall afford to Getty and its authorized accountants, counsel and other designated representatives reasonable access (including using reasonable efforts to give access to persons or firms possessing information) and duplicating rights during normal business hours to Information within Marketing’s possession, insofar as such is reasonably required by

Getty for the conduct of its business, subject to appropriate restrictions for classified or Privileged Information. Information may be requested under this Article VII for the legitimate business purposes of either party, including without limitation, audit, accounting, claims (including claims for indemnification hereunder), litigation and tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations and for performing this Agreement and the transactions contemplated hereby.

Section 7.03 Production of Witnesses. At all times from and after the Distribution Date, each of Marketing and Getty shall use reasonable efforts to make available to the other, upon written request, its and its subsidiaries’ officers, directors, employees and agents as witnesses to the extent that such persons may reasonably be required in connection with any Action.

Section 7.04 Reimbursement. Except to the extent otherwise contemplated in any Related Agreement, a party providing Information or witness services to the other party under this Article VII shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments of such amounts, relating to supplies, disbursements and other out-of-pocket expenses (at cost) and direct and indirect expenses of employees who are witnesses or otherwise furnish assistance (at cost), as may be reasonably incurred in providing such Information or witness services.

Section 7.05. Retention of Records. Except as otherwise required by law or agreed to in a Related Agreement or otherwise in writing, each of Getty and Marketing may destroy or otherwise dispose of any of the Information (including information that is material Information and is not contained in other Information retained by Getty or Marketing, as the case may be) at any time after the tenth anniversary of this Agreement, provided that, prior

to such destruction or disposal, (a) it shall provide no less than 90 or more than 120 days prior written notice to the other, specifying in reasonable detail the Information proposed to be destroyed or disposed of and (b) if a recipient of such notice shall request in writing prior to the scheduled date for such destruction or disposal that any of the Information proposed to be destroyed or disposed of be delivered to such requesting party, the party proposing the destruction or disposal shall promptly arrange for the delivery of such of the Information as was requested at the expense of the party requesting such Information.

Section 7.06 Confidentiality. Each of Getty and its Subsidiaries on the one hand, and Marketing and its Subsidiaries on the other hand, shall hold, and shall cause its consultants advisors to hold, in strict confidence, all Information concerning the other in its possession or furnished by the other or the other’s representatives pursuant to this Agreement (except to the extent that such Information has been (i) in the public domain through no fault of such party or (ii) later lawfully acquired from other sources by such party), and each party shall not release or disclose such Information to any other person, except its auditors, attorneys, financial advisors, rating agencies, bankers and other consultants and advisors, unless compelled to disclose by judicial or administrative process or, as reasonably advised by its counsel, by other requirements of law, or unless such Information is reasonably required to be disclosed in connection with (x) any litigation with any third-parties or litigation between the Getty Group and the Marketing Group, (y) any contractual agreement to which the Getty Group or the Marketing Group are currently parties, or (z) in exercise of either parties’ rights hereunder.

Section 7.07 Privileged Matters. Getty and Marketing recognize that legal and other professional services that have been and will be provided prior to the Distribution

Date have been and will be rendered for the benefit of both the Getty Group and the Marketing Group and that both the Getty Group and the Marketing Group should be deemed to be the client for the of asserting all Privileges. To allocate the interests of each party in the Privileged Information, the parties agree as follows:

(a) Getty shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Retained Business, whether or not the Privileged Information is in the possession of or under the control of Getty or Marketing. Getty shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information that relates solely to the subject matter of any claims constituting Retained Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Getty, whether or not the Privileged Information is in the possession of or under the control of Getty or Marketing.

(b) Marketing shall be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Privileged Information which relates solely to the Marketing Business, whether or not the Privileged Information is in the possession of or under the control of Getty or Marketing. Marketing shall also be entitled, in perpetuity, to control the assertion or waiver of all Privileges in connection with Information which relates solely to the subject matter of any claims constituting Marketing Liabilities, now pending or which may be asserted in the future, in any lawsuits or other proceedings initiated against or by Marketing, whether or not the Privileged Information is in the possession of Marketing or under the control of Getty or Marketing.

(c) Getty and Marketing agree that they shall have a shared Privilege, with equal right to assert or waive, subject to the restrictions in this Section 7.07, with respect to all Privileges not allocated pursuant to the terms of Sections 7.07(a) and (b). (All Privileges relating to any claims, proceedings, litigation, disputes, or other matters which involve both Getty and Marketing in respect of which Getty and Marketing retain any responsibility or liability under this Agreement, shall be subject to a shared Privilege.)

(d) No party may waive any Privilege which could be asserted under any applicable law, and in which the other party has a shared Privilege, without the consent of the other party, except to the extent reasonably required in connection with any litigation with third-parties or as provided in subsection (e) below. Consent shall be in writing, or shall be deemed to be granted unless written objection is made within twenty (20) days after notice upon the other party requesting such consent.

(e) In the event of any litigation or dispute between a member of the Getty Group and a member of the Marketing Group, either party may waive a Privilege in which the other party has a shared Privilege, without obtaining the consent of the other party, provided that such waiver of a shared Privilege shall be effective only as to the use of Information with respect to the litigation or dispute between the Getty Group and the Marketing Group, and shall not operate as a waiver of the shared Privilege with respect to third-parties.

(f) If a dispute arises between the parties regarding whether a Privilege should be waived to protect or advance the interest of either party, each party agrees that it shall negotiate in good faith, shall endeavor to minimize any prejudice to the rights of the other party, and shall not unreasonably withhold consent to any request for waiver by the

other party. Each party specifically agrees that it will not withhold consent to waiver for any purpose except to protect its own legitimate interests.

(g) Upon receipt by any party of any subpoena, discovery or other request which arguably calls for the production or disclosure of Information subject to a shared Privilege or as to which the other party has the sole right hereunder to assert a Privilege, or if any party obtains that any of its current or former directors, officers, agents or employees have received any subpoena, discovery or other requests which arguably calls for the production or disclosure of such Privileged Information, such party shall promptly notify the other party of the existence of the request and shall provide the other party a reasonable opportunity to review the Information and to assert any rights it may have under this Section 7.07 or otherwise to prevent the production or disclosure of such Privileged Information.

(h) The transfer of the Marketing Books and Records and the Getty Books and Records and other Information between Getty and its Subsidiaries and Marketing and its Subsidiaries, is made in reliance on the agreement of Getty and Marketing, as set forth in Sections 7.06 and 7.07, to maintain the confidentiality of Privileged Information and to assert and maintain all applicable Privileges. The access to information being granted pursuant to Sections 7.01 and 7.02 hereof, the agreement to provide witnesses and individuals pursuant to Section 7.03 hereof and the transfer of Privileged Information between Getty and its Subsidiaries and Marketing and its Subsidiaries pursuant to this Agreement shall not be deemed a waiver of any Privilege that has been or may be asserted under this Agreement or otherwise.

ARTICLE VIII

INSURANCE

Section 8.01. Policies and Rights Included Within the Marketing Assets. Without limiting the generality of the definition of the Marketing Assets set forth in Section 2.02 or the effect of Section 2.02, the Marketing Assets shall include (a) any and all rights of an insured party under each of the Shared Policies, specifically including rights of indemnity and the right to be defended by or at the expense of the insurer, with respect to all injuries, losses, liabilities, damages and expenses incurred or claimed to have been incurred on or prior to the Distribution Date by any party in or in connection with the conduct of the Marketing Business or, to the extent any claim is made against Marketing or any of its subsidiaries, the Retained Business, and which injuries, losses, liabilities, damages and expenses may arise out of insured or insurable occurrences or events under one or more of the Shared Policies; provided, however, that except as provided in Section 8.05 below, nothing in this clause shall be deemed to constitute (or to reflect) the assignment of the Shared Policies, or any of them, to Marketing and (b) the Marketing Policies.

Section 8.02 Post-Distribution Date Claims. If, subsequent to the Distribution Date, any person, corporation, firm or entity shall assert a claim against Marketing or any Marketing Subsidiary with respect to any injury, loss, liability, damage or expense incurred or claimed to have been incurred prior to the Distribution Date in or in connection with the conduct of the Marketing Business or, to the extent any claim is made against Marketing or any of its Subsidiaries or the Marketing Business, and which injury, loss, liability, damage or expense may arise out of insured or insurable occurrences or events under one or more of the Shared Policies, Getty shall at the time such claim is asserted be

deemed to assign, without need of further documentation, to Marketing any and all rights of an insured party under the applicable Shared Policy with respect to such asserted claim, specifically including rights of indemnity and the right to be defended by or at the expense of the insurer; provided, however, that except as provided in Section 8.05 below nothing in this sentence shall be deemed to constitute (or to reflect) the assignment of the Shared Policies, or any of them, to Marketing.

Section 8.03 Administration and Reserves

(a) Notwithstanding the provisions of Article III, but subject to any contrary provisions of the Master Lease or the Services Agreement, from and after the Distribution Date:


	(i) Marketing shall be responsible for the (A) Insurance Administration of the Marketing Policies, and (B) Claims Administration with respect to the Marketing Liabilities; provided, that the administration of the Marketing Policies by Marketing is in no way intended to limit, inhibit, or preclude any right to insurance coverage for any Insured Claim of a named insured under the Marketing Policies, including but not limited to, Getty and any of its operations, Subsidiaries and Affiliates;

	(ii) Getty shall conduct (A) Insurance Administration of the Shared Policies, and (B) Claims Administration with respect to the Retained Liabilities; provided that the administration of the Shared Policies by Getty is in no way intended to limit, inhibit, or preclude any right to insurance coverage for any Insured Claim of a named insured under the Shared Policies, including but not limited to, Marketing and any of its operations, subsidiaries and Affiliates;


	(iii) Marketing shall be entitled to any reserves established by Getty or any of its Subsidiaries, or the benefit of reserves held by any insurance carrier, with respect to the Marketing Liabilities; and

	(iv) Getty shall be entitled to any reserves established by Getty or any of its Subsidiaries, or the benefit of reserves held by any insurance carrier, with respect to the Retained Liabilities.

(b) Insurance Premiums. Getty shall have the right but not the obligation to pay the premiums, to the extent that Marketing does not pay premiums with respect to Marketing Liabilities (retrospectively-rated or otherwise), with respect to Shared Policies and the Retained Policies, as required under the terms and conditions of the respective Policies, whereupon Marketing shall forthwith reimburse Getty for that portion of such premiums paid by Getty as are attributable to the Marketing Liabilities. Unless otherwise agreed by the parties hereto, Getty shall purchase (subject to a 50% reimbursement by Marketing within 15 days of its receipt of invoice) continued coverage under its director and officer liability insurance policy for a period no longer than 180 days following the Distribution Date for claims relating to periods prior to the Distribution Date.

(c) Allocation of Insurance Proceeds. Insurance Proceeds received with respect to claims, costs and expenses under the Policies shall be paid to Marketing with respect to the Marketing Liabilities and to Getty with respect to the Retained Liabilities. Payment of the allocable portions of indemnity costs of Insurance Proceeds resulting from the liability policies will be made to the appropriate party upon receipt from the insurance carrier. In the event that the aggregate limits on any Shared Policies are exceeded, the parties agree to provide an equitable allocation of Insurance Proceeds received after the

Distribution Date based upon their respective bona fide claims. The parties agree to use their best efforts to cooperate with respect to insurance matters.

Section 8.04 Agreement for Waiver of Conflict and Shared Defense. In the event that Insured Claims of both Marketing and Getty exist relating to the same occurrence, Marketing and Getty agree to jointly defend and to waive any conflict of interest necessary to the conduct of that joint defense. Nothing in this paragraph shall be construed to limit or otherwise alter in any way the indemnity obligations of the parties to this Agreement, including those created by this Agreement, by operation of law or otherwise.

Section 8.05 Surety Bonds. Schedule 8.05 sets forth the surety bonds posted by the Getty Group to secure obligations for state motor fuel licenses (the “Surety Bonds”). Marketing shall use its reasonable best efforts to replace such Surety Bonds with bonds posted by Marketing. Prior to the replacement of such Surety Bonds the parties’ respective obligations with respect to such Surety Bonds shall be as follows: (i) the parties shall keep such Surety Bonds in place after the Distribution to secure obligations relating to periods preceding the Distribution Date for such time as may be required by law, (ii) the obligations secured by the Surety Bonds will remain a direct obligation of Getty; provided, however, that Marketing shall be responsible for payment of all such obligations constituting Marketing Liabilities (and shall reimburse Getty for any payment made directly by Getty with respect to such Marketing Liabilities) and Getty shall be responsible for all such obligations constituting Retained Liabilities (and shall reimburse Marketing for any payments made directly by Marketing on behalf of such Retained Liabilities), consistent with the allocation of Marketing Liabilities and Retained Liabilities set forth herein; (iii) Marketing shall execute a guarantee pursuant to which Marketing will guarantee 100% of the obligations secured by such Surety

Bonds (subject to reimbursement by Getty for any payments made by Marketing with respect to Retained Liabilities) and (iv) Marketing will reimburse Getty for Marketing’s pro rata share of any premiums required to be paid to keep such Surety Bonds outstanding.

ARTICLE IX

MISCELLANEOUS

Section 9.01 Complete Agreement; Construction. This Agreement, including the Schedules and Exhibits and the Related Agreements and other agreements and documents referred to herein, shall constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. Notwithstanding any other provisions in this Agreement to the contrary, in the event and to the extent that there shall be a conflict between any provision of this Agreement and any provision of a Related Agreement, then the provision in the applicable Related Agreement shall control.

Section 9.02 Expenses. Except as otherwise set forth in this Agreement or any Related Agreement, all costs and expenses in connection with the preparation, execution, delivery and implementation of this Agreement, the Distribution and with the consummation of the transactions contemplated by this Agreement shall be charged to the party for whose benefit the expenses are incurred, with any expenses which cannot be allocated on such basis to be split equally between the parties.

Section 9.03 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws thereof.

Section 9.04 Notices. All notices and other communications hereunder shall be in writing and shall be delivered by hand or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other addresses for a party as shall be specified by like notice) and shall be deemed given on the date on which such notice is received:


	To Marketing:

		Getty Petroleum Marketing Inc.
		125 Jericho Turnpike
		Jericho, New York 11753
		Attention: President

	To Getty:

		Getty Realty Corp.
		125 Jericho Turnpike
		Jericho, New York 11753
		Attention: President

Section 9.05 Amendments. This Agreement may not be modified or amended except by an agreement in writing signed by the parties.

Section 9.06 Successors and Assigns. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

Section 9.07 Termination. This Agreement may be terminated and the Distribution abandoned at any time prior to the Distribution Date by and in the sole discretion of the Getty Board without the approval of Marketing. In the event of such termination, no party shall have any liability to any other party pursuant to this Agreement.

Section 9.08 Subsidiaries. Each of the parties hereto shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations

set forth herein to be performed by any Subsidiary of such party which is contemplated to be a Subsidiary of such party on and after the Distribution Date.

Section 9.09 No Third-Party Beneficiaries. Except for the provisions of Article V relating to Indemnities, this Agreement is solely for the benefit of the parties hereto and their respective Subsidiaries and Affiliates and should not be deemed to confer upon third- parties any remedy, claim, Liability, reimbursement, claim of action or other right in excess of those existing without reference to this Agreement.

Section 9.10 Titles and Headings. Titles and headings to sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.

Section 9.11 Exhibits and Schedules. The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.

Section 9.12 Legal Enforceability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without prejudice to any rights or remedies otherwise available to any party hereto, each party hereto acknowledges that damages would be an inadequate remedy for any breach of the provisions of this Agreement and agrees that the obligations of the parties hereunder shall be specifically enforceable.

9.13 Consent of Parties. The Parties hereby consent to the jurisdiction of the New York Supreme Court, Nassau County, or the United States District Court for the Eastern District of New York for all purposes.

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.


	GETTY PETROLEUM CORP.

	By:

	Title:


	GETTY PETROLEUM MARKETING INC.

	By:

	Title:

EXHIBIT A

GETTY REALTY CORP. AND SUBSIDIARIES
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF OCTOBER 31, 1996
(IN THOUSANDS)


	HISTORICAL		ADJUSTMENTS			PRO FORMA

ASSETS

Current Assets:
Cash and cash equivalents	$	28,153	($	18,262	) (a)	$	9,891
Short-term investments		535		—			535
Accounts receivable, net		2,309		—			2,309
Inventories		1,651		—			1,651
Deferred income taxes		3,269		—			3,269
Prepaid expenses and other current assets		3,824		—			3,824


		39,741		(18,262	)		21,479

Property, plant and equipment, net		97,300		—			97,300
Other assets		8,198		—			8,198


TOTAL ASSETS	$	145,239	($	18,262	)	$	126,977


LIABILITIES AND STOCKHOLDERS’ EQUITY

Current Liabilities:
Current portion of long-term debt and capital lease obligations	$	10,108		—		$	10,108
Accounts payable		2,689		—			2,689
Accrued expenses		22,999		—			22,999
Gasoline taxes payable		77		—			77


Total current liabilities		35,873		—			35,873

Long-term debt		15,652		—			15,652
Obligations under capital leases		18,153		—			18,153
Deferred income taxes		4,173		—			4,173
Other, principally deposits		1,187		—			1,187
Stockholders’ equity		70,201	($	18,262	) (a)		51,939


TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY	$	145,239	($	18,262	)	$	126,977

The unaudited pro forma consolidated balance sheet has been derived from the historical financial statements of Getty Realty Corp. and reflects certain pro forma adjustments as if the Distribution had been effected as of October 31, 1996.

(a) Represents cash to be transferred to Marketing in an amount sufficient to provide Marketing with net working capital of approximately $1.1 million in accordance with the Distribution Agreement.

EXHIBIT D

GETTY PETROLEUM MARKETING INC. AND SUBSIDIARIES
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF OCTOBER 31, 1996
(in thousands)


	HISTORICAL		ADJUSTMENTS			PRO FORMA


ASSETS
Current assets:
Cash and equivalents	$	937	$	18,262	(a)	$	19,199
Accounts receivable, net		13,559		—			13,559
Inventories		20,275		—			20,275
Deferred income taxes		1,657		—			1,657
Prepaid expenses and other current assets		2,674		—			2,674

Total current assets		39,102		18,262			57,364
Property and equipment, net		87,614		—			87,614
Other assets		2,163		—			2,163

TOTAL ASSETS	$	128,879	$	18,262		$	147,141

LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable	$	28,821	$	—		$	28,821
Accrued expenses		11,247		—			11,247
Gasoline taxes payable		16,196		—			16,196

Total current liabilities		56,264		—			56,264
Deferred income taxes		14,125		—			14,125
Other, principally deposits		14,463		—			14,463
Stockholders’ equity		44,027		18,262	(a)		62,289

TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY	$	128,879	$	18,262		$	147,141

See accompanying notes to unaudited pro forma consolidated balance sheet.

EXHIBIT F

#58752

JERICHO OFFICE SPACE LICENSE AGREEMENT

AGREEMENT made this 1st day of February, 1997 between GETTY REALTY CORP., formerly known as Getty Petroleum Corp., hereinafter called “Licensor”, having its principal office at 125 Jericho Turnpike, Jericho, New York 11753 and GETTY PETROLEUM MARKETING INC., hereinafter called “Licensee”, with an office at 125 Jericho Turnpike, Jericho, New York 11753.

RECITAL:

On February 23, 1987, Licensor, as Tenant, entered into a lease with Donald E. Axinn, as Landlord, hereinafter called “Landlord”, for certain office space in the building located at 125 Jericho Turnpike, Jericho, New York 11753, hereinafter called the “Lease”, and such Lease has been subsequently amended. Licensee acknowledges receipt of the Lease and all amendments thereto. Licensee desires to license such premises on a joint-use basis with Licensor.

NOW, THEREFORE, For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed as follows:

1. Licensor hereby licenses to Licensee and Licensee hereby licenses from Licensor the portion of the premises located at 125 Jericho Turnpike, Jericho, New York 11753, more fully described on Schedule “A” annexed hereto and made a part hereof, together with the equipment listed on Schedule “B” annexed hereto and made a part hereof, pursuant to the terms, conditions and limitations set forth herein. The premises shall be used jointly with Licensor and Licensor’s employees and invitees.

2. The term of this license, hereinafter called the “License”, shall be for a period of four (4) years and eleven (11) months, commencing on February 1, 1997, and ending on December 31, 2001, except that either party shall have the right at any time to terminate this License upon not less than thirteen (13) months notice to the other party. In the event that Licensee is the terminating party, Licensee shall pay to Licensor, upon the effective date of termination, an amount equal to 90% of the amount to be paid by Licensor to Landlord under Paragraph “7(b)” of the Lease. In the event that Licensor is the terminating party, Licensor shall pay 100% of such amount owed to Landlord. In the event that Licensor is the terminating party, Licensee shall have the option subject to Landlord’s consent, to continue to remain in occupancy of the office space, and Licensor shall use its best efforts to obtain Landlord’s consent to the assignment of the Lease to Licensee or to the subletting of the office space to Licensee. If such consent is obtained Licensor shall be relieved from the obligation to pay the amount due under Paragraph “7(b)” of the Lease. Licensee shall be solely responsible for any obligations under the Lease thereafter, including, without limitation, early termination penalties.

3. Licensee shall pay the following consideration (the “Consideration”) for the use of said premises:

$36,500.00 per month plus the amount due each month pursuant to Paragraph “4” hereof.

The Consideration shall be paid in advance on the first day of each calendar month, without

notice or demand and without any set off or deduction whatsoever. Licensee agrees that the Consideration shall be payable in monthly installments and that if any monthly installment thereof shall be due and unpaid for ten (10) days after notice of such default has been delivered to Licensee, Licensor shall then have the right to terminate this License and pursue its remedies at equity or law, including eviction, ejectment or dispossess, under Paragraph “21” hereof or otherwise. At Licensor’s option, Consideration, additional Consideration and any other sums due and owing under this License shall be paid by electronic wire transfer of funds or by electronic funds transfer. Licensee shall execute and deliver to Licensor such forms or authorizations as may be necessary for electronic wire transfers or electronic funds transfers.

4. Licensee shall pay to Licensor monthly, as additional Consideration, (i) 90% all taxes and sewer assessments which shall be imposed or assessed upon, Licensor as Tenant under the Lease, and (ii) 90% of Licensor’s share of operating expenses under the Lease. Licensee shall be responsible for the payment of all personal property taxes, if any, to the appropriate taxing authority.

5. Licensor shall pay directly to the appropriate authority, all sewer charges (other than assessments) and all charges for gas, electricity, telephone, heat and hot water, provided, however, if Licensee increases Licensor’s use of any utility in any material respect, Licensee shall pay, as additional Consideration, the incremental cost of such utility to Licensor.

6. Licensor shall provide to Licensee the insurance coverage in the same manner and amounts set forth in the Lease between Licensor, as Tenant, and Donald E. Axinn, as Landlord, dated February 23, 1987.

7. Subject to such uses being lawful, Licensee shall use and occupy the premises for general office purposes, in compliance with the Lease and all zoning regulations, the building code and all applicable laws, rules and regulations. Licensee must obtain, at its own expense, all government licenses or permits required for the lawful conduct of Licensee’s business on the premises and Licensee will, at all times, comply with the terms of such licenses or permits.

8. Licensee shall not use the premises, or any part thereof, for any other use not provided for in paragraph “7” hereof, without Licensor’s prior written consent.

9. Subject to the terms of the Lease, Licensor, at its expense, shall make structural repairs deemed necessary by it to keep the premises in good operating condition, provided that repairs are due to ordinary wear or to damage by the elements and without any abatement of Consideration for the interruption caused thereby.

10. Licensor shall also, at its expense, maintain the premises and the equipment included on Schedule “B” in good, safe and operating condition and promptly make all repairs or replacements which are not the responsibility of Landlord under the Lease or of Licensee or are occasioned by the negligence or misconduct of its employees, agents and customers, which repairs or replacements shall be in quality and class equal to or better than the work or installations existing at the time that the damage or injury occurred. Licensee shall commit no act of waste to the premises or improvements.

11. If Licensee shall fail to comply with its obligations under the last sentence of paragraph “10” hereof,

Licensor or its agent may enter upon any portion of the premises occupied by Licensee in order to take such remedial action as is necessary and may charge the cost of repair to Licensee as additional Consideration due with Licensee’s next monthly installment of Consideration. Licensee’s failure to pay such charges shall be treated as a failure to pay Consideration when due and subject to the same remedies.

12. Licensor shall not be required to render any services to Licensee or to make any repairs or replacements to the premises except those specifically described in this License.

13. Licensor and Licensee agree that this License is only a license and shall not be construed as a sublease, or confer any rights of a sublease.

14. This License is subject and subordinate to the Lease and to all mortgages or other security instruments which may now or hereafter affect this License or the premises, and to all renewals, modifications, consolidations, replacements and extensions thereof. This clause shall be self-operative and no further instrument of subordination shall be required by any ground or underlying tenant or by any mortgagee. In confirmation of such subordination, Licensee shall execute promptly any certificate that Licensor may request.

15. Licensee shall comply promptly with the terms of the Lease and all present and future laws, codes and ordinances and other notices, requirements, orders, regulations and recommendations (whatever the nature thereof) of all governmental authorities and recommendations of the board of fire underwriters or any insurance organizations, associations or companies in the respect to the premises and Licensee will not knowingly do or commit, or suffer to be done or committed anywhere in the premises, any act or thing contrary to the Lease or any of the laws, ordinances, notices, requirements, orders, regulations and recommendations referred to herein.

16. Licensee shall place no signs on the premises which do not relate to Licensee’s business without first obtaining Licensor’s prior written consent. All signs shall be in compliance with the Lease and all applicable laws. Licensee shall pay the charges, if any, for all sign permits.

17. Licensee agrees that it will take no action that would violate the provisions of the Lease.

18. (a) Licensee shall quit and surrender peaceably and quietly, to Licensor, its agent or attorney, possession of the premises at the expiration or other termination of this License, in good condition, except for ordinary wear and tear. If upon termination of this License or abandonment of the premises by Licensee, Licensee abandons or leaves any personal property or equipment at the premises, such equipment or property shall be conclusively deemed abandoned and Licensor shall have the right, without notice to Licensee, to store or otherwise dispose of the property or equipment at Licensee’s sole cost, expense and risk, without being liable in any respect to Licensee. Licensee agrees that any such disposition by Licensor shall be conclusively deemed to be commercially reasonable.

(b) If Licensee holds over or remains in possession of the premises after the expiration of the term of the License, or after any prior termination thereof, without any written agreement being made or entered into between Licensor and Licensee, such holding over or continued possession shall be deemed

to be a license from month to month at a monthly Consideration equal to two (2) times the then last monthly installments payable during the term, and otherwise upon the terms and conditions of this License, and such license shall be terminable at the end of any month by either party upon written notice delivered to the other party at least thirty (30) days prior to the end of such month. Nothing herein shall be construed as to permit Licensee to hold over or remain in possession beyond the expiration or termination of the Lease.

19. Licensee shall not do any act, or make any contract, which may create or be a foundation for any lien (including mechanics or materialman’s liens) or other encumbrance upon any interest of Landlord or Licensor in the premises. If any such lien be filed, Licensee, within fifteen (15) days or as soon as reasonably possible after notice of filing shall cause any such lien or encumbrance to be discharged of record.

20. Licensee shall make no additions, changes, alterations or improvements to the premises without first submitting detailed plans and specifications and obtaining Licensor’s prior written consent. Any alterations or additions to any buildings or permanent improvements authorized by Licensor shall be made in a good, workmanlike manner, in compliance with all applicable laws, rules and regulations and at Licensor’s option shall upon installation become the property of Licensor and Licensee shall have no right or interest therein except to continue to use same during the remainder of the term of this License. At the request of Licensor, Licensee shall at its own cost and expense remove all alterations, improvements, and additions not acceptable to or desired by Licensor, from the premises and Licensee shall repair all damage caused by such installation and removal. Any costs incurred by Licensor in removing or disposing of fixtures or repairing damage shall be additional Consideration due hereunder.

21. Licensor and Licensee agree that each of the provisions of this License is a material and substantial condition of the agreement between the parties relating to the license for use of the premises. Licensor may immediately terminate this License, upon two (2) days written notice, upon the failure of Licensee to cure a default within ten (10) days of notice of default from Licensor, and in any manner resume full possession of the premises; in the event the Licensee does not comply with any one of the terms and conditions of this License, the Lease, or upon any grounds provided in any applicable law, statute, rule or regulation including by way of illustration but not limited to the happening of the following event:

a) If any insolvency or receivership proceedings are instituted by or against Licensee or Licensee makes any general assignment for the benefit of creditors, or a receiver or trustee is appointed for Licensee or for any of Licensee’s assets, or a judgment is entered against Licensee, or if any attachment, execution or like process is issued against the Licensee or any of Licensee’s assets.

22. In the event of any default by Licensee, re-entry by Licensor, expiration or termination of this License or dispossess by summary proceeding or otherwise, Licensee shall be responsible for the following:

a) Consideration up to the time of such re-entry, dispossess or expiration of the term of this License;

b) Consideration for the balance of the full term, all of which shall be accelerated and due


	and payable as of the date of default, re-entry by Licensor, termination of this License or entry of a judgment of possession, whichever date first occurs;

	c) The payment of all sums incurred by Licensor in putting the premises in good order or preparing the same for re-licensing, including brokerage and advertising fees;

	d) Reasonable attorney’s fees and expenses resulting from Licensor enforcing any of the remedies described above, or in the enforcement of this License or in defending any claim brought against Licensor by Licensee against which Licensor successfully defends; and

	e) In addition, Licensor shall have such other remedies as are then available to it by law. Licensor is under no obligation to mitigate damages.

No right or remedy granted or reserved unto Licensor hereunder shall be deemed to be exclusive of any other or additional right or remedy available to Licensor at law or in equity or under statute.

23. Licensee shall not assign, sub-license, pledge, mortgage or otherwise transfer the premises, or any part thereof, without first obtaining Licensor’s written consent which consent Licensor may, in its sole discretion, withhold with or without cause. In the event of any such assignment or sub-licensing, by new license agreement or otherwise, Licensee shall continue to remain jointly and severally liable with its transferee to Licensor for the performance of all of Licensee’s obligations for the remainder of the term of this License.

24. This License is subject and subordinate to all of the terms, provisions and conditions of the Lease with Landlord, and if such Lease shall be cancelled or terminated, this License shall be automatically terminated or cancelled, without any liability on the part of Licensor to Licensee.

25. The parties hereto waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other (except for personal injury or property damage) on any matters whatsoever arising out of or in any way connected with this License, the relationship of Licensor and Licensee, Licensee’s use of or occupancy of the premises, or any other statutory remedy. In the event Licensor or Landlord commences any dispossess proceeding for possession of the premises, Licensee will not interpose any counterclaim of any nature or description in such proceeding.

26. Licensee agrees to defend, indemnify and hold Licensor and Landlord, their affiliates, officers, directors, employees and agents harmless from and against any and all losses, claims, demands, suits, actions, judgments, fines or payments for, or in connection with, any accident, injury or damage whatsoever caused to any person or property arising, directly or indirectly, out of the business conducted at the premises or on any of the sidewalks adjoining the same, or arising, directly or indirectly, from any violation of any law, agency ruling or regulation, or from any act or omission of Licensee or any sublicensee and their respective, servants, agents, customers, employees or contractors, and from and against all costs, expenses and liabilities incurred in connection with any such claim or proceeding brought thereon. Licensee’s obligations under this paragraph shall survive expiration or termination of this License. Licensor shall have no responsibility whatsoever for any damage, vandalism or theft of

Licensee’s property.

27. Licensee agrees that the liability of the Licensor under this License and all matters pertaining to or arising out of the License and the use and occupancy of the licensed premises, shall be limited to Licensor’s interest in the premises, and in no event shall Licensee make any claim against or seek to impose any personal liability upon any individual, general or limited partner of any partnership, or principal of any firm or corporation that may now or hereafter become the Licensor.

28. If the whole or any substantial part of the premises shall be acquired or condemned by eminent domain or for any public or quasi-public use or purpose, then, and in that event, the term of this License shall cease and terminate from the date of title vesting and Licensee shall have no claim against Licensor for the value of any unexpired term of this License. No part of any award shall belong to Licensee.

29. Should any of Licensee’s checks, electronic wire transfers or electronic funds transfers be dishonored, stopped or returned for any reason after delivery or transfer to Licensor, Licensee agrees to pay to Licensor an administrative service charge equal to the greater of $50.00 or three (3%) percent of the amount of any such check or attempted transfer, to cover Licensor’s costs and expenses. Any money owed by Licensee to Licensor after the due date shall bear interest at the rate of the lesser of 1 1/2% per month (18% annual percentage rate), or the maximum interest rate permitted by law.

30. Licensor does not, in any way, represent or warrant the fitness of the premises for the use contemplated by Licensee and it shall be Licensee’s obligation to make same fit at its sole cost and expense. Licensee acknowledges that it has inspected the premises and accepts the same in its present condition “AS IS”.

31. Licensee warrants and represents to Licensor that it has dealt with no broker, real estate salesman, or person acting as broker or finder, in connection with this License. Licensee shall defend, indemnify and hold harmless Licensor of and from any and all claims, liabilities and/or damages which are based upon a claim by any broker, person, firm, or corporation for brokerage commission and/or other compensation by reason of having dealt with Licensee. The provisions hereof shall survive the expiration or termination of this License.

32. All notices and other communications which are required shall be given by hand or by Certified Mail, Return Receipt Requested, to the parties at their respective addresses first written above, or to the Licensee at the premises or to such other address as either party may designate by hand or like Certified Mail. Any such notice shall take effect at the time of the mailing thereof.

33. Licensor’s right to require strict performance shall not be affected by any previous waiver or course of dealings.

34. Licensor shall not be liable for failure to give possession of the premises upon the commencement date by reason of the fact that the premises are not ready for occupancy or because a prior licensee or any other person is wrongfully holding over or is in wrongful possession, or for any other reason. The Consideration shall not commence until possession is given or is available, but the term herein shall not

be extended.

35. This License shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, successors and assigns.

36. No waiver, modification, change or alteration of the provisions of this License, or any of the rights or remedies of either of the parties hereto shall be valid, unless such waiver, modification, change or alteration is in writing, and signed by the party against whom enforcement is sought.

37. This License shall be construed in accordance with the laws of the State of New York.

38. In the event any provision of this License is declared illegal, invalid, or unenforceable or contrary to law, it shall not affect any other part.

39. The parties have set forth in this License their entire understanding relating to the premises, there is no other agreement or understanding between the parties relating to the premises, except as expressly set forth herein.

40. Licensee has fully read this License before signing same and is in full agreement with its terms. The person signing this License on behalf of Licensee certifies that he/she is authorized by Licensee to execute this License on behalf of Licensee and to bind Licensee to its terms.

41. Licensee shall not record this License or any notice or memorandum thereof.


		GETTY REALTY CORP.

	By:

Witness		President, Licensor

		GETTY PETROLEUM MARKETING INC.

	By:

Witness		President, Licensee

SCHEDULE 1.01(a)
Environmental Liabilities

NON-INVEST-ENVIRONMENTAL


LOCATION

#	CITY	STATE

95141	MILLSTONE	NJ
96904	MIDDLETOWN	RI
97126	HAZLETON	PA
97192	EDDINGTON	PA
98326	BRONXVILLE	NY
98351	NANUET	NY
98440	WEST HURLEY	NY
98442	S. DURHAM	NY
98444	GANESVOORT	NY
98455	TIVOLI	NY
98461	SAUGERTIES	NY
98535	ELMHURST	NY
98967	BRONX	NY
13	sites

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

7	JAMAICA	NY
8	REGO PARK	NY
16	OZONE PARK	NY
17	BROOKLYN	NY
20	BRONX	NY
22	CORONA	NY
24	BRONX	NY
38	OCEANSIDE	NY
54	BRIGHTWATERS	NY
61	MIDDLE ISLAND	NY
74	WHITE PLAINS	NY
75	WHITE PLAINS	NY
77	NEW ROCHELLE	NY
78	YONKERS	NY
79	HARTSDALE	NY
82	OSSINING	NY
91	ELMSFORD	NY
93	PELHAM MANOR	NY
100	MAHWAH	NJ
101	VALLEY COTTAGE	NY
102	PEEKSKILL	NY
103	PORT CHESTER	NY
104	LARCHMONT	NY
110	MEDFORD	NY
111	BRONX	NY
114	BRONX	NY
115	BRONX	NY
116	ELMSFORD	NY
117	MAMARONECK	NY
121	YONKERS	NY
126	BROOKLYN	NY
128	BROOKLYN	NY
138	YONKERS	NY
146	MAHOPAC	NY
157	POUGHKEEPSIE	NY
159	CARMEL	NY
160	MARLBORO	NY
163	LAKE KATRINE	NY
169	WAPPINGERS FALLS	NY
174	STONY POINT	NY
177	HIGHLAND	NY
178	KINGSTON	NY
179	POUGHKEEPSIE	NY
181	HOWARD BEACH	NY
182	LAGRANGEVILLE	NY
186	BRONX	NY
195	STATEN ISLAND	NY
200	S. ISLAND	NY
210	BRONX	NY
214	JAMAICA	NY

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

218	MIDDLE VILLAGE	NY
219	LONG ISLAND CITY	NY
223	BROOKLYN	NY
225	ROCKAWAY PARK	NY
228	BROOKLYN	NY
229	BROOKLYN	NY
234	STATEN ISLAND	NY
235	S. ISLAND	NY
240	SPRINGFIELD GDNS.	NY
252	MT. VERNON	NY
254	NORTH BRUNSWICK	NJ
257	BRONX	NY
258	BRONX	NY
261	BRONX	NY
264	BRONX	NY
266	BRONX	NY
268	BRONX	NY
270	BRONX	NY
271	BRONX	NY
272	BRONX	NY
275	BRONX	NY
276	BRONX	NY
277	BRONX	NY
278	YONKERS	NY
288	ATLANTIC HIGHLANDS	NJ
301	N. TARRYTOWN	NY
304	OLD BRIDGE	NJ
307	BREWSTER	NY
312	FLUSHING	NY
319	MAHWAH	NJ
322	VALLEY COTTAGE	NY
323	BRONX	NY
324	S. ISLAND	NY
325	BRIARCLIFF MANOR	NY
326	BRONX	NY
329	BRONX	NY
331	BRONX	NY
332	BRONX	NY
334	BROOKLYN	NY
336	BROOKLYN	NY
339	NEW YORK	NY
340	NEW YORK	NY
341	NEW YORK	NY
342	GLENDALE	NY
343	OZONE PARK	NY
344	LIC	NY
357	N. BABYLON	NY
358	PELHAM	NY
360	SMITHTOWN	NY
361	ASTORIA	NY

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

362	S. ISLAND	NY
363	CEDARHURST	NY
366	LAKE RONKONKOMA	NY
370	KEYPORT	NJ
377	NEW CITY	NY
379	W. HAVERSTRAW	NY
396	STATEN ISLAND	NY
411	BROOKLYN	NY
421	BROOKLYN	NY
425	W. ISLIP	NY
429	RONKONKOMA	NY
444	BAYSHORE	NY
460	BETHPAGE	NY
523	TOMS RIVER	NJ
535	N. BABYLON	NY
544	WHITE PLAINS	NY
545	SAUGERTIES	NY
546	WOODSIDE	NY
547	OZONE PARK	NY
548	HICKSVILLE	NY
549	BRONX	NY
561	S. ISLAND	NY
564	BROOKLYN	NY
568	LIC	NY
570	WHITE PLAINS	NY
571	N. WHITE PLAINS	NY
572	HAWTHORNE	NY
573	PLEASANTVILLE	NY
574	PATTERSON	NY
576	YONKERS	NY
577	YONKERS	NY
578	RYE	NY
579	OSSINING	NY
580	BRANFORD	CT
581	BRIDGEPORT	CT
583	COVENTRY	CT
587	FRANKLIN	CT
589	MANCHESTER	CT
590	MERIDEN	CT
595	NEW MILFORD	CT
596	NORTH HAVEN	CT
598	NORWICH	CT
600	WAUREGAN	CT
604	TERRYVILLE	CT
607	UNION CITY	CT
611	WATERFORD	CT
613	WESTPORT	CT
615	WOODBRIDGE	CT
619	AGAWAM	MA
624	GRANBY	MA

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

625	GREAT BARRINGTON	MA
628	MONSON	MA
633	PITTSFIELD	MA
635	SOUTH HADLEY	MA
637	SPRINGFIELD	MA
638	SPRINGFIELD	MA
647	OSSINING	NY
649	BROOKLYN	NY
660	LAKEWOOD	NJ
667	PARAMUS	NJ
673	PLEASANTVILLE	NJ
676	GLEN HEAD	NY
677	NEW ROCHELLE	NY
679	TORRINGTON	CT
680	N. BRANFORD	CT
685	DOBBS FERRY	NY
687	WOLCOTT	CT
688	PLAINVILLE	CT
709	BROOKLYN	NY
751	FAIRLESS HILLS	PA
752	PHILADELPHIA	PA
6130	NEW HAVEN	CT
6722	BLOOMFIELD	CT
6725	SIMSBURY	CT
6742	RIDGEFIELD	CT
6743	BRIDGEPORT	CT
6744	NORWALK	CT
6746	BRIDGEPORT	CT
6748	BRIDGEPORT	CT
6749	BRIDGEPORT	CT
6751	BRIDGEPORT	CT
6753	BRIDGEPORT	CT
6754	BRIDGEPORT	CT
6756	BRIDGEPORT	CT
6762	DARIEN	CT
6764	WESTPORT	CT
6765	STAMFORD	CT
6766	HAMDEN	CT
6768	STAMFORD	CT
6772	COS COB	CT
6776	STRATFORD	CT
6777	MILFORD	CT
6778	STRATFORD	CT
6782	FAIRFIELD	CT
6811	BRISTOL	CT
6813	BROOKFIELD	CT
6817	TORRINGTON	CT
6819	NORWALK	CT
6826	HARTFORD	CT
6831	NEW HAVEN	CT

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

6836	BRIDGEPORT	CT
6837	WILTON	CT
6850	W. HARTFORD	CT
6853	ENFIELD	CT
6862	STRATFORD	CT
6864	EAST HARTFORD	CT
6871	AVON	CT
8608	WILMINGTON	DE
8635	NEW CASTLE	DE
8637	ST. GEORGES	DE
8641	WILMINGTON	DE
8667	NEWARK	DE
8669	WILMINGTON	DE
28206	LISBON	ME
28215	WESTBROOK	ME
28226	WINDHAM	ME
28231	AUGUSTA	ME
29721	BALTIMORE	MD
29763	RANDALLSTOWN	MD
30161	MILFORD	MA
30315	S. WEYMOUTH	MA
30326	GARDNER	MA
30327	STOUGHTON	MA
30332	METHUEN	MA
30344	RANDOLPH	MA
30351	ROCKLAND	MA
30352	WATERTOWN	MA
30363	WEYMOUTH	MA
30374	DEDHAM	MA
30375	HINGHAM	MA
30392	ASHLAND	MA
30409	HYDE PARK	MA
30412	PITTSFIELD	MA
30436	WORCESTER	MA
30438	NEW BEDFORD	MA
30439	TAUNTON	MA
30466	CLINTON	MA
30468	FOXBORO	MA
30472	GROVELAND	MA
30488	HYANNIS	MA
30506	HOLYOKE	MA
30518	GROVELAND	MA
30524	FALMOUTH	MA
30537	SOMERSET	MA
30545	METHUEN	MA
30546	ROCKLAND	MA
30548	WILLIAMSTOWN	MA
30551	FAIRHAVEN	MA
30552	BELLINGHAM	MA
30558	SEEKNOK	MA

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

30559	WALPOLE	MA
30561	N. ANDOVER	MA
30562	WESTFORD	MA
30600	LOWELL	MA
30601	FRAMINGHAM	MA
30602	AUBURN	MA
30603	METHUEN	MA
30604	AMESBURY	MA
30605	GEORGETOWN	MA
30606	IPSWICH	MA
30607	SALISBURY	MA
30609	BEVERLY	MA
30611	HAVERHILL	MA
30612	CHATHAM	MA
30618	LOWELL	MA
30619	METHUEN	MA
30621	NEWBURYPORT	MA
30623	ORLEANS	MA
30624	PEABODY	MA
30627	SALEM	MA
30629	TEWKSBURY	MA
30630	TWIN MILL (WAREHAM)	MA
30631	FALMOUTH	MA
30632	W. YARMOUTH	MA
30633	WESTFORD	MA
30635	YARMOUTH	MA
30636	BRIDGEWATER	MA
30644	CANTON	MA
30646	STOUCHTON	MA
30651	WORCESTER	MA
30652	AUBURN	MA
30653	BARRE	MA
30654	WORCESTER	MA
30655	BROCKTON	MA
30656	MILLBURY	MA
30658	WORCESTER	MA
30660	DUDLEY	MA
30663	WORCESTER	MA
30664	HYANNIS	MA
30665	LEOMINSTER	MA
30666	WORCESTER	MA
30668	WORCESTER	MA
30669	NORTH BOROUGH	MA
30670	POCASSET	MA
30671	CLINTON	MA
30672	W. BOYLSTON	MA
30673	WORCESTER	MA
30674	SOUTHBRIDGE	MA
30675	WORCESTER	MA
30676	S. YARMOUTH	MA

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

30677	STERLING	MA
30679	WORCESTER	MA
30680	FRAMINGHAM	MA
30682	WAREHAM	MA
30683	WESTBOROUGH	MA
30684	HARWICHPORT	MA
30685	WORCESTER	MA
30686	WORCESTER	MA
30687	FITCHBURG	MA
30688	WORCESTER	MA
30689	CHERRY VALLEY	MA
30690	FRAMINGINGHAM	MA
30692	SOUTHBRIDGE	MA
30693	OXFORD	MA
30694	WORCESTER	MA
30696	FITCHBURG	MA
30697	WORCESTER	MA
30700	FRAMINGHAM	MA
30702	MILFORD	MA
30704	UXBRIDGE	MA
30710	WORCESTER	MA
55211	DERRY	NH
55234	PLAISTOW	NH
55235	GILFORD	NH
55236	SOMERSWORTH	NH
55237	SALEM	NH
55238	LONDONDERRY	NH
55239	ROCHESTER	NH
55241	HAMPTON	NH
55245	NASHUA	NH
55246	PELHAM	NH
55247	PEMBROKE	NH
55249	ROCHESTER	NH
55250	ROCHESTER	NH
55251	SALEM	NH
55252	SEABROOK	NH
55253	SOMERSWORTH	NH
55254	EXETER	NH
55256	CANDIA	NH
55257	EPPING	NH
55258	EPSOM	NH
55261	MILFORD	NH
55264	PORTSMOUTH	NH
55265	PORTSMOUTH	NH
55267	SALEM	NH
55268	SEABROOK	NH
56003	MCAFEE	NJ
56005	HAMBURG	NJ
56009	WEST MILFORD	NJ
56028	WILLINGBORO	NJ

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

56039	NUTLEY	NJ
56046	TOMS RIVER	NJ
56051	WALL TOWNSHIP	NJ
56056	UNION	NJ
56062	CRANBURY	NJ
56064	SPOTSWOOD	NJ
56065	NEW BRUNSWICK	NJ
56075	ELIZABETH	NJ
56079	BAYONNE	NJ
56084	BASKING RIDGE	NJ
56086	DEPTFORD	NJ
56088	SEWELL	NJ
56101	TRENTON	NJ
56102	LODI	NJ
56113	SPRING LAKE	NJ
56116	CLIFTON	NJ
56117	SEWELL	NJ
56132	ASBURY PARK	NJ
56142	PATERSON	NJ
56149	BRICK TOWNSHIP	NJ
56156	OCEAN CITY	NJ
56157	WHITING	NJ
56169	MONTVALE	NJ
56215	NEPTUNE	NJ
56230	NEWARK	NJ
56251	NESHANIC STATION	NJ
56253	PINE HILL	NJ
56258	TUCKERTON	NJ
56260	W. DEPTFORD	NJ
56262	ATCO	NJ
56263	SOMERVILLE	NJ
56271	MATAWAN	NJ
56276	FORT LEE	NJ
56803	BERGENFIELD	NJ
56809	RAHWAY	NJ
56815	LINDEN	NJ
56818	BLOOMFIELD	NJ
56821	SOUTH ORANGE	NJ
56844	NUTLEY	NJ
56852	ENGLEWOOD	NJ
56868	CLIFTON	NJ
56871	JERSEY CITY	NJ
56873	WATCHUNG	NJ
56877	GREEN VILLAGE	NJ
56891	BLOOMFIELD	NJ
56893	PARLIN	NJ
56896	COLONIA	NJ
56897	N. BERGEN	NJ
56915	RIDGEWOOD	NJ
56919	WAYNE	NJ

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

56921	WASHINGTON	NJ
56922	PARAMUS	NJ
56924	GARFIELD	NJ
56925	JERSEY CITY	NJ
56926	FORT LEE	NJ
56933	BELFORD	NJ
56935	EATONTOWN	NJ
56939	MONMOUTH BCH	NJ
56962	TRENTON	NJ
56987	BEVERLY	NJ
56999	WEST ORANGE	NJ
58006	ROCKVILLE CENTRE	NY
58007	GLENDALE	NY
58012	BELLAIRE	NY
58014	BRONX	NY
58015	BROOKLYN	NY
58018	BAYSIDE	NY
58019	YONKERS	NY
58021	DOBBS FERRY	NY
58022	N. MERRICK	NY
58025	WHITE PLAINS	NY
58027	GREAT NECK	NY
58031	GLEN HEAD	NY
58034	PT. WASHINGTON	NY
58041	WESTBURY	NY
58042	TUCKAHOE	NY
58046	EAST HILLS	NY
58049	YONKERS	NY
58053	BROOKLYN	NY
58069	LYNBROOK	NY
58071	ST. ALBANS	NY
58072	RHINEBECK	NY
58073	RIDGEWOOD	NY
58077	BROOKLYN	NY
58079	BROOKLYN	NY
58087	BAYSHORE	NY
58092	ARDSLEY	NY
58101	YONKERS	NY
58108	WHITE PLAINS	NY
58111	SCARSDALE	NY
58112	EASTCHESTER	NY
58114	NEW ROCHELLE	NY
58119	BROOKLYN	NY
58121	NEW ROCHELLE	NY
58123	BROOKLYN	NY
58154	BRONX	NY
58161	YONKERS	NY
58173	GLENVILLE	NY
58184	YONKERS	NY
58205	NEW YORK	NY

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

58218	ALBANY	NY
58220	LONG ISLAND CITY	NY
58254	ALBANY	NY
58260	RENSSELAER	NY
58263	MT. KISCO	NY
58297	SALT POINT	NY
58315	ROTTERDAM	NY
58329	OSSINING	NY
58347	ELLENVILLE	NY
58367	CHATHAM	NY
58393	HYDE PARK	NY
58401	SHRUB OAK	NY
58409	NEW YORK	NY
58411	EAST MEADOW	NY
58415	BROOKLYN	NY
58441	STATEN ISLAND	NY
58442	STATEN ISLAND	NY
58471	CEDARHURST	NY
58505	BRONX	NY
58513	BRONX	NY
58514	NEW YORK	NY
58526	OZONE PARK	NY
58532	MT. VERNON	NY
58535	PELHAM MANOR	NY
58542	NEW YORK	NY
58543	FREEPORT	NY
58547	ASTORIA	NY
58548	MOHEGAN LAKE	NY
58553	STATEN ISLAND	NY
58557	E. ELMHURST	NY
58558	STATEN ISLAND	NY
58563	MERRICK	NY
58567	GUILDERLAND CTR.	NY
58573	WANTAGH	NY
58574	SMITHTOWN	NY
58582	TROY	NY
58584	BROOKLYN	NY
58585	ARVERNE	NY
58587	REGO PARK	NY
58592	NEW YORK	NY
58596	MIDDLETOWN	NY
58598	OCEANSIDE	NY
58602	MANHASSET	NY
58605	HOWARD BEACH	NY
58616	BRONX	NY
58703	SCHENECTADY	NY
58704	BALLSTON SPA	NY
58705	BALLSTON SPA	NY
58710	COLONIE	NY
58711	DELMAR	NY

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

58712	ELLENVILLE	NY
58713	FT. EDWARD	NY
58714	FT. PLAIN	NY
58715	GLENS FALLS	NY
58716	GLOVERSVILLE	NY
58718	HALFMOON	NY
58719	GREEN ISLAND	NY
58720	HANCOCK	NY
58721	HYDE PARK	NY
58722	LATHAM	NY
58723	BALLSTON SPA	NY
58724	MELROSE	NY
58725	MILLERTON	NY
58726	NEW WINDSOR	NY
58727	NISKAYUNA	NY
58730	PLEASANT VALLEY	NY
58731	POUGHKEEPSIE	NY
58733	QUEENSBURY	NY
58735	ROTTERDAM	NY
58737	GUILDERLAND	NY
58739	S. GLENS FALLS	NY
58740	TROY	NY
58741	WARRENSBURG	NY
58743	HUDSON FALLS	NY
58744	MECHANICVILLE	NY
58745	ALBANY	NY
58750	MECHANICVILLE	NY
58751	NEWBURGH	NY
58753	KINGSTON	NY
58754	RENSSELAER	NY
58759	RHINEBECK	NY
58760	PORT EWEN	NY
58761	CATSKILL	NY
58762	CATSKILL	NY
58764	CATSKILL	NY
58766	HUDSON	NY
58768	SAUGERTIES	NY
58769	FREEHOLD	NY
58770	COXSACKIE	NY
58771	GREENVILLE	NY
58772	QUARRYVILLE	NY
58774	MONSEY	NY
58776	KINGSTON	NY
58780	RENSSELAER	NY
58785	MENANDS	NY
58786	HOUSICK FALLS	NY
58788	BREWSTER	NY
58790	BARDONIA	NY
58793	VALATIE	NY
58794	CAIRO	NY

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

58796	VISTA	NY
58797	LEEDS	NY
58798	POUGHKEEPSIE	NY
58802	PINE BUSH	NY
58804	COPAKE	NY
58806	RED HOOK	NY
58808	W. TAGHKANIC	NY
58812	RAVENA	NY
58822	CROTON FALLS	NY
67101	BANGOR	PA
67215	PHILADELPHIA	PA
67227	ALLENTOWN	PA
67243	BRYN MAWR	PA
67244	CONSHOHOCKEN	PA
67249	PHILADELPHIA	PA
67253	HUNTINGDON VALLEY	PA
67254	FEASTERVILLE	PA
67255	PHILADELPHIA	PA
67258	PHILADELPHIA	PA
67265	PHILADELPHIA	PA
67266	PHILADELPHIA	PA
67269	HATBORO	PA
67271	HAVERTOWN	PA
67272	MEDIA	PA
67274	PHILADELPHIA	PA
67275	MILMONT PARK	PA
67276	PHILADELPHIA	PA
67278	ALDAN	PA
67282	BRISTOL	PA
67288	TREVOSE	PA
67298	HAVERTOWN	PA
67299	ABINGTON	PA
67301	HATBORO	PA
67367	CLIFTON HIGHTS	PA
67381	ALDAN	PA
67396	MEDIA	PA
67398	ROSLYN	PA
67401	CLIFTON HIGHTS	PA
67402	PHILADELPHIA	PA
67405	MORRISVILLE	PA
67409	PHILADELPHIA	PA
67415	PHOENIXVILLE	PA
67416	LEVITTOWN	PA
67418	LANGHORNE	PA
67419	POTTSTOWN	PA
67422	BOYERTOWN	PA
67423	QUAKERTOWN	PA
67425	SOUDERTON	PA
67426	LANSDALE	PA
67431	FURLONG	PA

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

67432	COOPERSBURG	PA
67433	DOYLESTOWN	PA
67434	RICHBORO	PA
67435	PENNDEL	PA
67436	WEST CHESTER	PA
67437	NORRISTOWN	PA
67531	TRAPPE	PA
67580	GETTYSBURG	PA
67598	LINWOOD	PA
67599	ELIZABETHTOWN	PA
67601	NORTH HILLS	PA
67602	NEWTOWN SQUARE	PA
67604	ALLENTOWN	PA
67607	PHILADELPHIA	PA
67610	PHILADELPHIA	PA
67615	PHILADELPHIA	PA
67617	PALMER TOWNSHIP	PA
67623	FARIFIELD	PA
67624	NEW OXFORD	PA
67626	LITTLESTOWN	PA
67627	HANOVER	PA
67635	YORK	PA
67636	DOVER	PA
67638	GLEN ROCK	PA
67639	CARLISLE	PA
67640	CARLISLE	PA
67641	BOILING SPRINGS	PA
67647	HANOVER	PA
67649	BIGLERVILLE	PA
67650	NEW OXFORD	PA
67654	HARRISBURG	PA
68002	MIDDLETOWN	RI
68007	PROVIDENCE	RI
68120	EAST PROVIDENCE	RI
68611	PAWTUCKET	RI
68619	CRANSTON	RI
68622	PAWTUCKET	RI
68623	BARRINGTON	RI
68629	WARWICK	RI
68642	PORTSMOUTH	RI
69004	EPHRATA	PA
69005	DAUPHIN	PA
69010	YORK	PA
69012	GETTYSBURG	PA
69016	POTTSVILLE	PA
69019	POTTSVILLE	PA
69406	ALLENTOWN	PA
69407	LANCASTER	PA
69408	BETHLEHEM	PA
69409	EASTON	PA

INVESTMENT-ENVIRONMENTAL


LOCATION

#	CITY	STATE

69415	BETHLEHEM	PA
69416	LANCASTER	PA
69417	SCHAEFFERSTOWN	PA
69419	HAMBURG	PA
69420	READING	PA
69421	MILLERSVILLE	PA
69422	MANHEIM	PA
69424	MOUNTVILLE	PA
69425	EBENEZER	PA
69426	BETHLEHEM	PA
69428	INTERCOURSE	PA
69430	REINHOLDS	PA
69431	BOYERTOWN	PA
69436	WEST GROVE	PA
69439	OXFORD	PA
69440	POTTSTOWN	PA
69443	EPHRATA	PA
69444	READING	PA
69445	ROBESONIA	PA
69449	YORK	PA
69466	KENHORST	PA
69472	LEOLA	PA
69476	SHREWSBURY	PA
69483	RED LION	PA
69484	READING	PA
69485	ROTHSVILLE	PA
69495	HARRISBURG	PA
69497	ADAMSTOWN	PA
69503	LANCASTER	PA
69504	NEW HOLLAND	PA
69505	CHRISTIANA	PA
69507	LANCASTER	PA
69672	READING	PA
69673	WYOMISSING HILLS	PA
69676	ST.CLAIR	PA
69680	REIFFTON	PA
69681	W. READING	PA
69682	ARENDTSVILLE	PA
69683	MOHNTON	PA
69684	ST.THOMAS	PA
69685	CARLISLE	PA
69688	BONNEAUVILLE	PA
69690	MCCONNELLBURG	PA
76112	BENNINGTON	VT
694	sites

SCHEDULE 1.01(b)
Upgrades

NON-INVEST-CAPITAL


LOCATION

#	CITY	STATE

96904	MIDDLETOWN	RI
97192	EDDINGTON	PA
98175	LYNBROOK	NY
98326	BRONXVILLE	NY
4	sites

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

6	BROOKLYN	NY
7	JAMAICA	NY
8	REGO PARK	NY
20	BRONX	NY
22	CORONA	NY
24	BRONX	NY
61	MIDDLE ISLAND	NY
74	WHITE PLAINS	NY
79	HARTSDALE	NY
82	OSSINING	NY
91	ELMSFORD	NY
102	PEEKSKILL	NY
104	LARCHMONT	NY
111	BRONX	NY
115	BRONX	NY
117	MAMARONECK	NY
121	YONKERS	NY
126	BROOKLYN	NY
128	BROOKLYN	NY
138	YONKERS	NY
146	MAHOPAC	NY
157	POUGHKEEPSIE	NY
160	MARLBORO	NY
163	LAKE KATRINE	NY
174	STONY POINT	NY
177	HIGHLAND	NY
178	KINGSTON	NY
181	HOWARD BEACH	NY
186	BRONX	NY
195	S. ISLAND	NY
200	S. ISLAND	NY
223	BROOKLYN	NY
229	BROOKLYN	NY
234	S. ISLAND	NY
235	S. ISLAND	NY
240	SPRINGFIELD GDNS.	NY
252	MT. VERNON	NY
264	BRONX	NY
266	BRONX	NY
270	BRONX	NY
272	BRONX	NY
275	BRONX	NY
276	BRONX	NY
277	BRONX	NY
278	YONKERS	NY
301	N. TARRYTOWN	NY
307	BREWSTER	NY
312	FLUSHING	NY
323	BRONX	NY
324	S. ISLAND	NY

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

341	NEW YORK	NY
342	GLENDALE	NY
343	OZONE PARK	NY
344	LIC	NY
350	SPRING VALLEY	NY
361	ASTORIA	NY
362	S. ISLAND	NY
396	S. ISLAND	NY
411	BROOKLYN	NY
421	BROOKLYN	NY
544	WHITE PLAINS	NY
545	SAUGERTIES	NY
546	WOODSIDE	NY
547	OZONE PARK	NY
561	S. ISLAND	NY
564	BROOKLYN	NY
568	LIC	NY
570	WHITE PLAINS	NY
572	HAWTHORNE	NY
573	PLEASANTVILLE	NY
576	YONKERS	NY
577	YONKERS	NY
578	RYE	NY
579	OSSINING	NY
587	FRANKLIN	CT
617	AGAWAM	MA
618	FEEDING HILLS	MA
619	AGAWAM	MA
624	GRANBY	MA
625	G. BARRINGTON	MA
626	HADLEY	MA
627	LANESBORO	MA
628	MONSON	MA
629	NORTH ADAMS	MA
630	NORTH ADAMS	MA
631	PALMER	MA
632	PITTSFIELD	MA
633	PITTSFIELD	MA
637	SPRINGFIELD	MA
638	SPRINGFIELD	MA
640	SPRINGFIELD	MA
641	SPRINGFIELD	MA
643	WESTFIELD	MA
647	OSSINING	NY
649	BROOKLYN	NY
685	DOBBS FERRY	NY
709	BROOKLYN	NY
6130	NEW HAVEN	CT
6744	NORWALK	CT
6765	STAMFORD	CT

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

6772	COS COB	CT
6822	MANCHESTER	CT
6853	ENFIELD	CT
8605	NEW CASTLE	DE
8608	WILMINGTON	DE
8635	NEW CASTLE	DE
8637	ST. GEORGES	DE
8641	WILMINGTON	DE
8644	WILMINGTON	DE
8645	CLAYMONT	DE
8659	NEWARK	DE
8667	NEWARK	DE
8671	WILMINGTON	DE
28032	PORTLAND	ME
28215	WESTBROOK	ME
29721	ROCKDALE	MD
29763	RANDALSTOWN	MD
29812	ABERDEEN	MD
30161	MILFORD	MA
30312	AGAWAM	MA
30315	S. WEYMOUTH	MA
30317	WEST ROXBURY	MA
30324	MAYNARD	MA
30327	STOUGHTON	MA
30331	ARLINGTON	MA
30339	BELMONT	MA
30351	ROCKLAND	MA
30352	WATERTOWN	MA
30355	READING	MA
30361	DORCHESTER	MA
30363	WEYMOUTH	MA
30392	ASHLAND	MA
30393	WOBURN	MA
30404	BELMONT	MA
30412	PITTSFIELD	MA
30429	N. ATTLEBORO	MA
30436	WORCESTER	MA
30439	TAUNTON	MA
30445	FALL RIVER	MA
30457	WORCESTER	MA
30458	WEBSTER	MA
30466	CLINTON	MA
30468	FOXBORO	MA
30471	WORCESTER	MA
30472	CLINTON	MA
30515	BOSTON	MA
30521	NEWTON	MA
30524	FALMOUTH	MA
30537	SOMERSET	MA
30545	METHUEN	MA

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

30546	ROCKLAND	MA
30548	WILLIAMSTOWN	MA
30551	FAIRHAVEN	MA
30557	TAUNTON	MA
30558	SEEKONK	MA
30559	WALPOLE	MA
30561	N. ANDOVER	MA
30562	WESTFORD	MA
30600	LOWELL	MA
30601	FRAMINGHAM	MA
30603	METHUEN	MA
30604	AMESBURY	MA
30605	GEORGETOWN	MA
30606	IPSWICH	MA
30607	SALISBURY	MA
30609	BEVERLY	MA
30610	BILLERICA	MA
30612	CHATHAM	MA
30615	HARWICH	MA
30616	IPSWICH	MA
30618	LOWELL	MA
30619	METHUEN	MA
30621	NEWBURYPORT	MA
30623	ORLEANS	MA
30624	PEABODY	MA
30625	QUINCY	MA
30626	REVERE	MA
30627	SALEM	MA
30629	TEWKSBURY	MA
30630	TWIN MILL	MA
30631	FALMOUTH	MA
30633	WESTFORD	MA
30636	BRIDGEWATER	MA
30644	CANTON	MA
30646	STOUGHTON	MA
30647	MEDFORD	MA
30648	DORCHESTER	MA
30649	STOUGHTON	MA
30651	WORCESTER	MA
30653	BARRE	MA
30654	WORCESTER	MA
30655	BROCKTON	MA
30656	MILLBURY	MA
30658	WORCESTER	MA
30660	DUDLEY	MA
30662	FRANKLIN	MA
30663	WORCESTER	MA
30665	LEOMINSTER	MA
30666	WORCESTER	MA
30668	WORCESTER	MA

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

30669	NORTHBOROUGH	MA
30670	POCASSET	MA
30671	CLINTON	MA
30672	W. BOYLSTON	MA
30674	SOUTHBRIDGE	MA
30675	WORCESTER	MA
30676	S. YARMOUTH	MA
30677	STERLING	MA
30678	SUTTON	MA
30679	WORCESTER	MA
30680	FRAMINGHAM	MA
30682	WAREHAM	MA
30683	WESTBOROUGH	MA
30684	HARWICHPORT	MA
30685	WORCESTER	MA
30686	WORCESTER	MA
30687	FITCHBURG	MA
30688	WORCESTER	MA
30689	CHERRY VALLEY	MA
30690	FRAMINGHAM	MA
30692	SOUTHBRIDGE	MA
30693	OXFORD	MA
30696	FITCHBURG	MA
30697	WORCESTER	MA
30698	ORANGE	MA
30702	MILFORD	MA
30704	UXBRIDGE	MA
30709	WORCESTER	MA
30710	WORCESTER	MA
30711	AUBURN	MA
30712	WALTHAM	MA
30713	LOWELL	MA
55237	SALEM	NH
55238	LONDONBERRY	NH
55244	MERRINACK	NH
55245	NASHUA	NH
55247	PEMBROKE	NH
55249	ROCHESTER	NH
55251	SALEM	NH
55254	EXETER	NH
55257	EPPING	NH
55258	EPSOM	NH
55259	EXETER	NH
55261	MILFORD	NH
55265	PORTSMOUTH	NH
55274	PELHAM	NH
56161	LITTLE FERRY	NJ
56230	NEWARK	NJ
58007	GLENDALE	NY
58012	BELLAIRE	NY

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

58014	BRONX	NY
58015	BROOKLYN	NY
58018	BAYSIDE	NY
58049	YONKERS	NY
58053	BROOKLYN	NY
58071	ST. ALBANS	NY
58077	BROOKLYN	NY
58079	BROOKLYN	NY
58085	BAYSIDE	NY
58108	WHITE PLAINS	NY
58111	SCARSDALE	NY
58114	NEW ROCHELLE	NY
58119	BROOKLYN	NY
58121	NEW ROCHELLE	NY
58154	BRONX	NY
58173	GLENVILLE	NY
58205	NEW YORK	NY
58218	ALBANY	NY
58220	LONG ISLAND CITY	NY
58254	ALBANY	NY
58260	RENSSELAER	NY
58315	ROTTERDAM	NY
58329	OSSINING	NY
58347	ELLENVILLE	NY
58367	CHATHAM	NY
58409	NEW YORK	NY
58415	BROOKLYN	NY
58441	STATEN ISLAND	NY
58443	STATEN ISLAND	NY
58505	BRONX	NY
58513	BRONX	NY
58514	NEW YORK	NY
58526	OZONE PARK	NY
58542	NEW YORK	NY
58547	ASTORIA	NY
58557	E. ELMHURST	NY
58567	GUILDERLAND CTR.	NY
58582	TROY	NY
58584	BROOKLYN	NY
58585	ARVERNE	NY
58587	REGO PARK	NY
58592	NEW YORK	NY
58596	MIDDLETOWN	NY
58605	HOWARD BEACH	NY
58703	SCHENECTADY	NY
58704	BALLSTON SPA	NY
58705	BALLSTON SPA	NY
58710	COLONIE	NY
58711	DELMAR	NY
58712	ELLENVILLE	NY

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

58714	FT. PLAIN	NY
58715	GLENS FALLS	NY
58716	GLOVERSVILLE	NY
58718	CLIFTON PARK	NY
58719	GREEN ISLAND	NY
58720	HANCOCK	NY
58721	HYDE PARK	NY
58722	LATHAM	NY
58723	BALLSTON SPA	NY
58724	MELROSE	NY
58725	MILLERTON	NY
58726	NEW WINDSOR	NY
58727	NISKAYUNA	NY
58730	PLEASANT VLLY	NY
58731	POUGHKEEPSIE	NY
58733	QUEENSBURY	NY
58735	ROTTERDAM	NY
58737	SCHNECTADY	NY
58739	S. GLENS FALLS	NY
58740	TROY	NY
58741	WARRENSBURG	NY
58743	HUDSON FALLS	NY
58744	MECHANICVILLE	NY
58750	MECHANICVILLE	NY
58751	NEWBURGH	NY
58753	KINGSTON	NY
58754	RENSSELAER	NY
58760	PORT EWEN	NY
58761	CATSKILL	NY
58762	CATSKILL	NY
58766	HUDSON	NY
58768	SAUGERTIES	NY
58769	FREEHOLD	NY
58771	GREENVILLE	NY
58772	QUARRYVILLE	NY
58780	RENSSELAER	NY
58785	MENANDS	NY
58786	HOOSICK FALLS	NY
58793	VALATIE	NY
58797	LEEDS	NY
58802	PINE BUSH	NY
58804	COPAKE	NY
58806	RED HOOK	NY
58808	W. TAGHKANIC	NY
58809	MIDDLE ISLAND	NY
58812	RAVENA	NY
58822	CROTON FALLS	NY
67101	BANGOR	PA
67215	PHILADELPHIA	PA
67227	ALLENTOWN	PA

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

67249	PHILADELPHIA	PA
67261	PHILADELPHIA	PA
67265	PHILADELPHIA	PA
67266	PHILADELPHIA	PA
67276	PHILADELPHIA	PA
67299	ABINGTON	PA
67398	ROSLYN	PA
67402	PHILADELPHIA	PA
67409	PHILADELPHIA	PA
67416	LEVITTOWN	PA
67423	QUAKERTOWN	PA
67425	SOUDERTON	PA
67432	COOPERSBURG	PA
67531	TRAPPE	PA
67580	GETTYSBURG	PA
67596	PARADISE	PA
67597	PHILADELPHIA	PA
67599	ELIZABETHTOWN	PA
67604	ALLENTOWN	PA
67610	PHILADELPHIA	PA
67616	PHILADELPHIA	PA
67624	NEW OXFORD	PA
67626	LITTLESTOWN	PA
67627	HANOVER	PA
67632	LONGSTOWN	PA
67633	YORK	PA
67636	DOVER	PA
67638	GLEN ROCK	PA
67639	CARLISLE	PA
67641	BOILING SPGS.	PA
67654	HARRISBURG	PA
68007	PROVIDENCE	RI
68120	E. PROVIDENCE	RI
68646	WAKEFIELD	RI
69002	READING	PA
69004	EPHRATA	PA
69005	DAUPHIN	PA
69006	DOUGLASVILLE	PA
69010	YORK	PA
69012	GETTYSBURG	PA
69016	POTTSVILLE	PA
69019	POTTSVILLE	PA
69406	ALLENTOWN	PA
69408	BETHLEHEM	PA
69409	WASTON	PA
69415	BETHLEHEM	PA
69416	LANCASTER	PA
69417	SCAFFERSTOW	PA
69419	HAMBURG	PA
69420	READING	PA

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

69421	MILLERSVILLE	PA
69422	MANHEIN	PA
69425	EBENEZER	PA
69426	BETHELEM	PA
69428	INTERCOURSE	PA
69430	REINHOLDS	PA
69431	BOYERTOWN	PA
69439	OXFORD	PA
69440	POTTSTOWN	PA
69443	EPHRATA	PA
69444	READING	PA
69445	ROBERSONIA	PA
69449	YORK	PA
69466	KENHORST	PA
69472	LEOLA	PA
69476	SHREWSBURY	PA
69483	RED LION	PA
69484	READING	PA
69493	HANOVER	PA
69495	HARRISBURG	PA
69497	ADAMSTOWN	PA
69503	LANCASTER	PA
69504	NEW HOLLAND	PA
69505	CHRISTIANA	PA
69507	LANCASTER	PA
69673	WYOMISSING HILLS	PA
69676	ST. CLAIR	PA
69681	W. READING	PA
69682	ARDENTSVILLE	PA
69683	HOHNTON	PA
69684	ST. THOMAS	PA
69685	CARLISLE	PA
69688	BONNEAUVILLE	PA
69690	MCCONNELLSBURG	PA
71002	ROCKY MOUNT	VA
71004	BLACKSBURG	VA
71009	VINTON	VA
71010	ROANOKE	VA
71011	RIDGEWAY	VA
71028	FIEDALE	VA
71030	MARTISNSILLE	VA
71031	ROANOKE	VA
71033	ROANOKE	VA
71054	RICH CREEK	VA
71055	DANVILLE	VA
71090	ROANOKE	VA
71108	ROANOKE	VA
71109	ROANOKE	VA
71110	SALEM	VA
71112	STANLEYTOWN	VA

INVESTMENT-CAPITAL


LOCATION

#	CITY	STATE

71113	MARTINSVILLE	VA
71120	ROANOKE	VA
71173	RICHMOND	VA
71177	DALEVILLE	VA
71178	BRISTOL	VA
71213	MARTINSVILLE	VA
71215	CHESAPEAKE	VA
71216	VIRGINIA BCH	VA
71218	VIRGINIA BCH	VA
71220	HAMPTON	VA
71222	PORTSMOUTH	VA
71250	NEWPORT NEWS	VA
71251	VIRGINIA BCH	VA
71252	VIRGINIA BCH	VA
71255	VIRGINIA BCH	VA
71257	VIRGINIA BCH	VA
71262	HAMPTON	VA
71264	STERLING PARK	VA
71270	PORTSMOUTH	VA
71288	CHRISTIANASBR	VA
71293	VIRGINIA BCH	VA
71294	MAHASSAS PK	VA
76112	BENNINGTON	VT
473	sites

SCHEDULE 1.01(c)
Marketing Equipment

Net Book Value of Marketing Assets to be Transferred by Getty Petroleum Corp.
to Getty Petroleum Marketing Inc. By Location
as of January 31, 1997


Location	Address	Net Book Value

[Computer-generated report to be issued after the close of the books for January 1997]

SCHEDULE 1.01(d)
Shared Policies

[will be supplied upon request]

Schedule 2.06

Conveyance and Assumption Instruments

[See attached]

BILL OF SALE

This is a Bill of Sale from Aero Oil Company, a Pennsylvania corporation (the “Assignor”), with central offices located at 125 Jericho Turnpike, Jericho, New York 11753, to Getty Petroleum Marketing Inc., a Maryland corporation (the “Assignee”), with central offices located at 125 Jericho Turnpike, Jericho, New York 11753, pursuant to the Reorganization and Distribution Agreement, dated as of January 31, 1997 (the “Agreement”), between the Assignor’s sole shareholder and Assignee. Capitalized terms used herein, unless otherwise defined, have the meaning given them in the Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby sell, assign, transfer, convey, deliver and contribute to Assignee, its successors and assigns, to have and to hold forever, all of its rights, title and interest in and to all of its tangible personal property, of every kind and description, that, as determined on a basis consistent with that used in the determination of the assets included on the Marketing Balance Sheet, relate to the Marketing Business (the “Marketing Assets”), including but not limited to the equipment described on Exhibit A attached hereto, subject to all mortgages, pledges, liens, leases, charges, encumbrances and adverse claims of any kind and character, except that Assignee shall be entitled to the benefits of the representations, warranties, and indemnities set forth in the Agreement with respect to such Marketing Assets.

From and after the Distribution Date, upon request of Assignee, Assignor shall duly execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to convey to and vest in Assignee and protect its rights, title and interest in enjoyment of all the Marketing Assets of the Assignor and as may be appropriate or otherwise to carry out the transactions contemplated by the Agreement and this Bill of Sale.

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have duly executed and delivered this Bill of Sale as of this ___ day of January, 1997.


	AERO OIL COMPANY
Attest:

	By:

		Title:


ACCEPTED:

	GETTY PETROLEUM MARKETING INC.
Attest:

	By:
		Title:

ASSIGNMENT AND ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of January __, 1997, between Aero Oil Company, a Pennsylvania corporation (the “Assignor”), with a central office located at 125 Jericho Turnpike, Jericho, New York 11753, and Getty Petroleum Marketing Inc., a Maryland corporation (the “Assignee”), with a central office located at 125 Jericho Turnpike, Jericho, New York 11753.

WITNESSETH:

WHEREAS, Assignee and the sole shareholder of Assignor have entered into a Reorganization and Distribution Agreement dated as of January 31, 1997 (the “Agreement”), providing, among other things, for transfer by Assignor to Assignee of the Marketing Assets (as such term is defined in the Agreement) of Assignor, including but not limited to certain intangible personal property of Assignor;

WHEREAS, this Assignment and Assumption Agreement is being delivered immediately prior to and is a condition precedent to the closing of the distribution contemplated in the Agreement.

NOW, THEREFORE, the parties hereto agree as follows:

1. Capitalized Terms. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement.

2. Assignment. Assignor hereby assigns, transfers and conveys to Assignee, subject to the terms and conditions contained in the Agreement, on and as of the date hereof, and Assignee hereby accepts and assumes, all of Assignor’s obligations, right, title and interest in, to and under all intangible personal property that Assignor owns or in which it has rights and that, as determined on a basis consistent with that used in the determination of assets included on the Marketing Balance Sheet, relate to the Marketing Business, including but not limited to accounts receivable, choses in action, rights to payment or performance, rights and obligations arising under or in connection with chattel paper, documents, instruments, deposit accounts, money, licenses and permits (to the extent assignable under applicable law), trademarks, copyrights, trade names, patents, claims for refunds of deposits or prepaid expenses, puts, options, investment property, contracts and contract rights, leases and leasehold interests, with all rights, powers, privileges and obligations of Seller thereunder, excepting therefrom only Retained Assets.

3. Assumption of Liabilities. Assignee hereby assumes and agrees timely and diligently fully to satisfy, perform, pay and discharge all Liabilities of Assignor relating to the assets conveyed hereunder except Retained Liabilities.

4. Miscellaneous. This Assignment and Assumption Agreement shall inure to the benefit of, and be enforceable against, each of the Assignor, the Assignee and their respective successors and assigns.

IN WITNESS WHEREOF, the parties have duly executed and delivered this Assignment and Assumption Agreement on the date first above written.


Attest:	AERO OIL COMPANY

	By:

		Title:




Attest:	GETTY PETROLEUM MARKETING INC.


	By:
		Title:

BILL OF SALE

This is a Bill of Sale from Getty Petroleum Corp., a Delaware corporation (the “Assignor”), with central offices located at 125 Jericho Turnpike, Jericho, New York 11753, to Getty Petroleum Marketing Inc., a Maryland corporation (the “Assignee”), with central offices located at 125 Jericho Turnpike, Jericho, New York 11753, pursuant to the Reorganization and Distribution Agreement, dated as of January 31, 1997 (the “Agreement”), between the Assignor and Assignee. Capitalized terms used herein, unless otherwise defined, have the meaning given them in the Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby sell, assign, transfer, convey, deliver and contribute to Assignee, its successors and assigns, to have and to hold forever, all of its rights, title and interest in and to all of its tangible personal property, of every kind and description, that, as determined on a basis consistent with that used in the determination of the assets included on the Marketing Balance Sheet, relate to the Marketing Business (the “Marketing Assets”), including but not limited to the Marketing Books and the records and the equipment described on Exhibit A attached hereto, subject to all mortgages, pledges, liens, leases, charges, encumbrances and adverse claims of any kind and character, except that Assignee shall be entitled to the benefits of the representations, warranties, and indemnities set forth in the Agreement with respect to such Marketing Assets.

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have duly executed and delivered this Bill of Sale as of this ___ day of January, 1997.


	GETTY PETROLEUM CORP.
Attest:

	By:

		Title:


ACCEPTED:

	GETTY PETROLEUM MARKETING INC.
Attest:

	By:
		Title:

ASSIGNMENT AND ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of January __, 1997, between Getty Petroleum Corp., a Delaware corporation (the “Assignor”), with a central office located at 125 Jericho Turnpike, Jericho, New York 11753, and Getty Petroleum Marketing Inc., a Maryland corporation (the “Assignee”), with a central office located at 125 Jericho Turnpike, Jericho, New York 11753.

WITNESSETH:

WHEREAS, Assignor and Assignee have entered into a Reorganization and Distribution Agreement dated as of January 31, 1997 (the “Agreement”), providing, among other things, for transfer by Assignor to Assignee of the Marketing Assets (as such term is defined in the Agreement) of Assignor, including but not limited to all intangible personal property of Assignor;

WHEREAS, this Assignment and Assumption Agreement is being delivered immediately prior to and is a condition precedent to the closing contemplated in the Agreement.

NOW, THEREFORE, the parties hereto agree as follows:

1. Capitalized Terms. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement.

2. Assignment. Assignor hereby assigns, transfers and conveys to Assignee, subject to the terms and conditions contained in the Agreement, on and as of the date hereof, and Assignee hereby accepts and assumes, all of Assignor’s obligations, right, title and interest in, to and under all intangible personal property that Assignor owns or in which it has rights and that, as determined on a basis consistent with that used in the determination of assets included on the Marketing Balance Sheet, relate to the Marketing Business, including but not limited to the Marketing Security Deposits, accounts receivable, choses in action, rights to payment or performance, rights and obligations arising under or in connection with chattel paper, documents, instruments, deposit accounts, money, licenses and permits (to the extent assignable under applicable law), trademarks, copyrights, trade names, patents, claims for refunds of deposits or prepaid expenses, puts, options, investment property, contracts and contract rights, leases and leasehold interests, with all rights, powers, privileges and obligations of Seller thereunder, excepting therefrom only Retained Assets.

3. Assumption of Liabilities. Assignee hereby assumes and agrees timely and diligently fully to satisfy, perform, pay and discharge all Liabilities of Assignor except Retained Liabilities.

4. Miscellaneous. This Assignment and Assumption Agreement shall inure to the benefit of, and be enforceable against, each of the Assignor, the Assignee and their respective successors and assigns.

IN WITNESS WHEREOF, the parties have duly executed and delivered this Assignment and Assumption Agreement on the date first above written.


Attest:	GETTY PETROLEUM CORP.

	By:

		Title:



Attest:	GETTY PETROLEUM MARKETING INC.

	By:
		Title:

BILL OF SALE

This is a Bill of Sale from Aero Oil Company, a Pennsylvania corporation (the “Assignor”), with central offices located at 125 Jericho Turnpike, Jericho, New York 11753, to Getty Terminals Corp., a New York corporation (the “Assignee”), with central offices located at 125 Jericho Turnpike, Jericho, New York 11753, pursuant to the Reorganization and Distribution Agreement, dated as of January 31, 1997 (the “Agreement”), between the Assignor’s sole shareholder and Assignee. Capitalized terms used herein, unless otherwise defined, have the meaning given them in the Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor does hereby sell, assign, transfer, convey, deliver and contribute to Assignee, its successors and assigns, to have and to hold forever, all of its rights, title and interest in and to all of its tangible personal property, of every kind and description, located at the facility known as the Highspire Terminal (the “Highspire Assets”), subject to all mortgages, pledges, liens, leases, charges, encumbrances and adverse claims of any kind and character, except that Assignee shall be entitled to the benefits of the representations, warranties, and indemnities set forth in the Agreement with respect to such Highspire Assets.

From and after the Distribution Date, upon request of Assignee, Assignor shall duly execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to convey to and vest in Assignee and protect its rights, title and interest in enjoyment of all the Highspire Assets of the Assignor and as may be appropriate or otherwise to carry out the transactions contemplated by the Agreement and this Bill of Sale.

IN WITNESS WHEREOF, and intending to be legally bound, the undersigned have duly executed and delivered this Bill of Sale as of this ___ day of January, 1997.


	AERO OIL COMPANY
Attest:

	By:

		Title:


ACCEPTED:

	GETTY TERMINALS CORP.
Attest:

	By:
		Title:

ASSIGNMENT AND ASSUMPTION AGREEMENT

ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of January __, 1997, between Aero Oil Company, a Pennsylvania corporation (the “Assignor”), with a central office located at 125 Jericho Turnpike, Jericho, New York 11753, and Getty Terminals Corp., a New York corporation (the “Assignee”), with a central office located at 125 Jericho Turnpike, Jericho, New York 11753.

WITNESSETH:

WHEREAS, the sole shareholder of each of Assignor and Assignee has entered into a Reorganization and Distribution Agreement dated as of January 31, 1997 (the “Agreement”), providing, among other things, for transfer by Assignor to Assignee of all intangible personal property of Assignor relating to the facility known as the Highspire Terminal (the “Highspire Terminal”);

WHEREAS, this Assignment and Assumption Agreement is being delivered prior to and is a condition precedent to the closing of the distribution contemplated in the Agreement.

NOW, THEREFORE, the parties hereto agree as follows:

1. Capitalized Terms. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement.

2. Assignment. Assignor hereby assigns, transfers and conveys to Assignee, subject to the terms and conditions contained in the Agreement, on and as of the date hereof, and Assignee hereby accepts and assumes, all of Assignor’s obligations, right, title and interest in, to and under all intangible personal property that Assignor owns or in which it has rights and that relate to the Highspire Terminal, including but not limited to accounts receivable, choses in action, rights to payment or performance, rights and obligations arising under or in connection with chattel paper, documents, instruments, deposit accounts, money, licenses and permits (to the extent assignable under applicable law), trademarks, copyrights, trade names, patents, claims for refunds of deposits or prepaid expenses, puts, options, investment property, contracts and contract rights, leases and leasehold interests, with all rights, powers, privileges and obligations of Assignor thereunder, excepting therefrom only Retained Assets.

4. Miscellaneous. This Assignment and Assumption Agreement shall inure to the benefit of, and be enforceable against, each of the Assignor, the Assignee and their respective successors and assigns.

IN WITNESS WHEREOF, the parties have duly executed and delivered this Assignment and Assumption Agreement on the date first above written.


Attest:	AERO OIL COMPANY

	By:

		Title:



Attest:	GETTY TERMINALS CORP.

	By:
		Title:

SCHEDULE 4.01
Consents

AGREEMENTS WHERE CONSENT TO ASSIGNMENT IS REQUIRED


	Agreement	Parties to Agreement	Date	Subject of Agreement	Other

1.	Advertising Agreement	NY Yankee Partnership & GPC	12/1/95	Advertising at Yankee Stadium

2.	Wright Express Corporation/ GPC Charge Card Agreement	Wright Express Corporation & GPC	10/14/86	Co-branded fleet fueling card and credit card program

3.	Transnet, Inc. Transaction Processing Services Agr’t	Transnet, Inc. & GPC	03/31/93	Processing transaction data from credit card, debit, & check payments

4.	VeriFone Finance Equipment Leasing Agreement	VeriFone Finance & GPC	03/25/94	Lease of Omni 395 265K terminals, P250 printers & Pin Pad 101’s	Lease #3823

5.	VeriFone Finance Equipment Leasing Agreement	VeriFone Finance & GPC	09/10/93	Lease of Omni 395 265K terminals, P250 printers & Pin Pad 101’s	Lease #2145

6.	Midlantic Bank, National Association Merchant Agr’t	Midlantic Bank, National Association & GPC	11/17/94	Getty’s participation in network to settle eft fund transfers

7.	Fuel Marketing Agreement	International Automated Energy Systems, Inc. & GPC	05/31/95	Getty’s participation in national network of fleet vehicle fueling facilities; IAES fleet cards

8.	Agreement	Interlink Network, Inc. & GPC	09/27/95	Getty’s acceptance of Interlink brand debit cards at Getty locations

9.	Lease	York & Aero Oil	11/29/93	Lease of four Mack Tractors (MD)	Assign from Aero Oil to PT Petro

10.	Lease	GECC & Aero Oil	10/21/94	Lease of two Heil Tank Trailers (PA)	Assign from Aero Oil to PT Petro

11.	Lease	GECC & Aero Oil	11/23/94	Lease of three Heil Tank Trailers (PA)	Assign from Aero Oil to PT Petro

12.	Lease	GECC & Aero Oil	12/21/94	Lease of three Mack tractors (PA)	Assign from Aero Oil to PT Petro

13.	Lease	GE Capital Fleet Services & Aero Oil	12/01/96	Lease on one Mack CH 613 Tractor (MD)	Assign from Aero Oil to PT Petro

14.	Lease of Computer Equipment	StorageTek & GPC	07/01/93	Lease of Tape Cartridge-Sys. 38	Notice of cancellation sent to Lessor

15.	Lease of Computer Equipment	Norwest(6) & GPC	12/31/94	Lease of DASD-AS 400

16.	Lease of Computer Equipment	Norwest(6) & GPC	04/01/96	Lease of DASD-AS 400

17.	Lease of Computer Equipment	Norwest(6) & GPC	12/96	Lease of CPU AS 400 IBM	New lease for 36 mos. signed 12/96


18.	Lease of Copier Machine	Xerox & GPC	05/94	Lease of Model 5100

19.	Lease of Copier Machine	Xerox & GPC	03/95	Lease of Model CS Pro 6000

20.	Lease	Verifone Finance & GPC	09/93	Lease of 650 POS Terminals

21.	Lease	Verifone Finance & GPC	10/93	Lease of 850 POS Terminals

22.	Lease	Verifone Finance & GPC	12/93	Lease of 200 POS Terminals

23.	Lease	Pitney Bowes & GPC	12/96	Lease of Mailing Machine, Powerstacker, Folder, Feeder, Inserter & Scale

24.	Merchant Services Agreement	Discover Card Services & GPC	05/15/89

25.	Agreement	Mastercard & GPC

26.	Agreement	Visa & GPC

27.	Agreement	NYCE & GPC

EXHIBIT 10.9 FORM OF TAX SHARING AGREEMENT BETWEEN GETTY PETROLEUM CORP (NOW KNOWN AS GETTY. PROPERTIES CORP.) AND GETTY PETROLEUM MARKETING INC.

TAX SHARING AGREEMENT

TAX SHARING AGREEMENT, dated as of , 1997, among Getty Petroleum Corp., a Delaware corporation (“Getty”), Getty Petroleum Marketing Inc., a Maryland corporation (“Marketing”), and their direct and indirect subsidiaries which are listed on the signature pages below. References herein to a “party” (or “parties”) to this Agreement, shall refer to Getty, Marketing and, where appropriate and the context so requires, their subsidiaries.

WHEREAS, Getty and its subsidiaries have joined in the filing of consolidated federal Tax Returns and certain consolidated, combined or unitary state or local Tax Returns; and

WHEREAS, Getty and Marketing have entered into that certain Reorganization and Distribution Agreement, dated as of the date hereof (the “Distribution Agreement”), pursuant to which Getty will distribute all of the outstanding common stock in Marketing to its stockholders in a transaction intended to qualify for tax-free treatment under section 355 of the Code (the “Spin-off”); and

WHEREAS, pursuant to the Distribution Agreement, Marketing and its subsidiaries will leave the Pre-Spin-off Group; and

WHEREAS, in connection with the Spin-off, Getty will change its name to Getty Realty Corp. (“Realty”) and will be referred to herein as Getty or Realty, as the context requires; and

WHEREAS, the parties hereto wish to provide for (i) allocations of, and indemnifications against, certain liabilities for Taxes, (ii) the preparation and filing of Tax Returns on a basis consistent with prior practice and the payment of Taxes with respect thereto, and (iii) certain related matters;

NOW THEREFORE, in consideration of their mutual promises, the parties hereby agree as follows:


1. DEFINITIONS.

When used herein the following terms shall have the following meanings:

“Affiliate” — with respect to any corporation (the “given corporation”), each person, corporation, partnership or other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the given corporation. For purposes of this definition, “control” means the possession, directly or indirectly, of 50% or more of the voting power or value of outstanding voting interests.

“Affiliated Group” — an affiliated group of corporations within the meaning of section 1504(a) of the Code for the Taxable Period or, for purposes of any state income tax matters, any consolidated, combined or unitary group of corporations within the meaning of the corresponding provisions of tax law for the state in question.

“Closing” — the time at which the Spin-off shall become effective on the Closing Date.

“Closing Date” — the date on which the Spin-off is effected by Getty.

“Code” — the Internal Revenue Code of 1986, as amended, or any successor thereto, as in effect for the Taxable Year in question.

“Combined Jurisdiction” — for any Taxable Period, any state, local or foreign jurisdiction in which Getty or a Getty Affiliate is included in a consolidated, combined, unitary or similar return with Getty or any Getty Affiliate for state or local Tax purposes.

“Distribution Agreement” — as defined in the preamble to this Agreement.

“Final Determination” — (i) a decision, judgment, decree, or other order by a court of competent jurisdiction, which has become final and unappealable; (ii) a closing agreement or accepted offer in compromise under Code Sections 7121 or 7122, or comparable agreements under the laws of other jurisdictions; (iii) any other final settlement with the IRS or other Taxing Authority; or (iv) the expiration of an applicable statute of limitations.

“Getty”— as defined in the preamble to this Agreement.

“Information Return(s)” — with respect to any corporation or Affiliated Group, any and all reports, returns, declarations or other filings (other than Tax Returns) required to be supplied to any Tax Authority.

“IRS” — the Internal Revenue Service.

“Marketing” — as defined in the preamble to this Agreement.

“Marketing Group” — Marketing and each corporation that joins with Marketing in filing a consolidated federal income tax return for any Post-Closing Taxable Period. For purposes of this Agreement, the Marketing Group shall exist from the beginning of the day immediately after the Closing Date.

“Marketing Member” — a corporation that was a Pre-Spin-off Member and becomes a member of the Marketing Group at the beginning of the day immediately after the Closing Date.

“Net Tax(es)” — Taxes (as defined herein) less any related interest or penalty attributed to such Taxes.

“Overdue Rate” — a rate of interest per annum that equals the 30-day LIBOR rate plus 400 basis points.

“Post-Closing Straddle Period” — with respect to any Straddle Period, the period beginning on the day after the Closing Date and ending on the last day of such Taxable Year.

“Post-Closing Taxable Period” — a Taxable Year that begins on or after the day immediately after the Closing Date.

“Pre-Closing Straddle Period” — with respect to any Straddle Period, the period beginning on the first day of such Taxable Year and ending on the close of business on the Closing Date.

“Pre-Closing Taxable Period” — a Taxable Year that ends at or before the close of business on the Closing Date.

“Preliminary Transactions” — those certain transactions occurring on or before the Closing Date that are described as “Preliminary Transactions” in the request for rulings filed with the IRS, dated as of March 12, 1996, as supplemented by subsequent submissions.

“Pre-Spin-Off Affiliate” — any Affiliate of any Pre-Spin-Off Member.

“Pre-Spin-off Group” — Getty and each corporation that joined with Getty in filing a consolidated federal income tax return for any Pre-Closing Taxable Period. For purposes of this Agreement, the Pre-Spin-off Group shall terminate at the close of business on the Closing Date.

“Pre-Spin-off Member” — a corporation that was a member of the Pre-Spin-off Group at the close of business on the Closing Date.

“Realty” — as defined in the preamble to this Agreement.

“Realty Group” — Realty and each corporation that joins with Realty in filing a consolidated federal income tax return for any Post-Closing Taxable Period. For purposes of this Agreement, the Realty Group shall exist from the beginning of the day immediately after the Closing Date.

“Realty Member” — a corporation that was immediately before the Spin-off a Pre-Spin-off Member and becomes a member of the Realty Group at the beginning of the day immediately after the Closing Date.

“Representative” — with respect to any person or entity, any of such person’s or entity’s directors, officers, employees, agents, consultants, accountants, attorneys and other advisors.

“Separate Return Basis” — the Tax liability for the Marketing Group (or any Marketing Member) calculated with Marketing as the common parent of the Affiliated Group and without regard to any Realty Members.

“Spin-off” — as defined in the Preamble to this Agreement.

“Straddle Period” — any Taxable Year beginning before and ending after the close of business on the Closing Date.

“Tax(es)” — with respect to any corporation or group of corporations, any and all taxes based upon or measured by net income, gross income, gross receipts (when levied in lieu of an income tax) or alternative minimum taxable income, capital or net worth, or motor fuel taxes, regardless of whether denominated as an “income tax,” a “franchise tax” or otherwise, imposed by any Taxing Authority, whether any such tax is imposed directly or through withholding, together with any interest and any penalty, addition to tax or additional amount.

“Taxable Period” — a Pre-Closing Taxable Period, a Post-Closing Taxable Period or a Straddle Period.

“Taxable Year” — a taxable year (which may be shorter than a full calendar or fiscal year), year of assessment or similar period with respect to which any Tax may be imposed.

“Tax Benefit(s)” — (i) in the case of a Tax for which a consolidated federal, or a consolidated, combined or unitary state or other, Tax Return is filed, the amount by which the Tax liability of the Affiliated Group or other relevant group of corporations is actually reduced on a “with and without” basis (by deduction, entitlement to refund, credit, offset or otherwise, whether available in the current Taxable Year, as an adjustment to taxable income in any other Taxable Year or as a carryforward or carryback, and including the effect of such reduction on other Taxes), plus any interest received with respect to any related Tax refund, and (ii) in the case of any other Tax, the amount by which the Tax liability of a corporation is actually reduced on a “with and without” basis (as a result of a deduction, entitlement to refund, credit, offset or otherwise, whether available in the current Taxable Year, or as an adjustment to taxable income in any other Taxable Year or as a carryforward or carryback, and including the effect of such reduction on other Taxes), plus any interest received with respect to any related Tax refund.

“Taxing Authority” — the IRS and any other domestic or foreign governmental authority responsible for the administration of any Tax.

“Tax Practices” — the most recently applied policies, procedures and practices employed by the Pre-Spin-off Group in the preparation and filing of, and positions taken on, any Tax Returns of Getty or any Pre-Spin-off Member or Pre-Spin-off Affiliate for any Pre-Closing Taxable Period.

“Tax Return(s)” — with respect to any corporation or Affiliated Group, all returns, reports, estimates, information statements, declarations and other filings relating to, or required to be filed in connection with, the payments or refund of any Tax for any Taxable Period.


2. OBLIGATIONS, RESPONSIBILITIES AND RIGHTS OF REALTY AND MARKETING.

(a) Preparation and Filing of Tax Returns.

(i) By Realty. Realty shall prepare and timely file (or cause to be prepared and timely filed):

(A) all Tax Returns and Information Returns of the Pre-Spin-off Group and any Pre-Spin-off Member that are required to be filed on or before the Closing Date (without regard to extensions of time);

(B) all Tax Returns and Information Returns of the Pre-Spin- off Group and any Pre-Spin-off Member for all Pre-Closing Taxable Periods that are not required to be filed on or before the Closing Date (without regard to extensions of time);

(C) all Tax Returns and Information Returns of the Realty Group and any Realty Member for all Straddle Periods and Post-Closing Taxable Periods; and

(D) all Tax Returns and Information Returns with respect to Pre-Closing Taxable Periods or Straddle Periods not otherwise required to be filed by Realty or Marketing pursuant to this Section 2(a)(i) and Section 2(a) (ii).

(ii) By Marketing. Marketing shall prepare and timely file (or cause to be prepared and timely filed):

all Tax Returns and Information Returns of the Marketing Group and any Marketing Member for all Straddle Periods and Post-Closing Taxable Periods.

(b) Provision of Filing Information. Each party shall cooperate and assist the other party in the preparation and filing of all Tax and Information Returns subject to Section 2(a) and submit to the other party (i) all necessary filing information in a manner consistent with past Tax Practices and (ii) all other information reasonably requested by the other party in connection with the preparation of such Tax and Information Returns promptly after such request.

(c) Taxable Year. Marketing and Realty agree that, for Tax purposes, (i) each Marketing Member shall be included in the consolidated federal Tax Return of the Pre-

Spin-off Group for the Taxable Year of such Marketing Member that includes the close of business on the Closing Date (and in all corresponding consolidated, combined or unitary state or other Tax Returns of the Pre-Spin-off Group) and (ii) the Marketing Group and each Marketing Member shall begin a new Taxable Year for purposes of such federal and, to the extent permitted by law, state Taxes on the day after the Closing Date. The parties further agree that, to the extent permitted by applicable law, all federal, state or other Tax Returns shall be filed consistently with that position.

(d) Straddle Period Taxes.

(i) For purposes of this Agreement, Taxes shall be allocated between the Pre- and Post-Closing Straddle Periods under a method selected by Realty (including a ratable method) permitted under applicable law.

(ii) Realty shall pay to Marketing within fourteen (14) days after receipt of an executed Straddle Period Tax Return prepared by Marketing pursuant to Section 2(a)(ii), the excess of any amount so allocated (based on the amount of Tax shown on such Tax Return) to the Pre-Closing Straddle Period over the amount of any estimated Taxes previously paid by any Pre-Spin-off Member to the relevant Taxing Authority prior to the Closing Date; or Marketing shall pay to Realty within fourteen (14) days after the filing of such Tax Return the excess of the amount of any estimated Taxes previously paid by any Pre-Spin-off Member to the relevant Taxing Authority prior to the Closing Date over the amount so allocated to such Period.

(e) Payment of Taxes. Realty shall pay (i) all Taxes shown to be due and payable on all Tax Returns filed by Realty pursuant to Section 2(a)(i) here of and (ii) subject to Section 3, all Taxes that shall thereafter become due and payable with respect to all Tax Returns filed pursuant to Section 2(a) (i) as a result of a Final Determination. Marketing shall pay all Taxes attributable to all Tax Returns filed by Marketing pursuant to Section 2(a)(ii) hereof.

(f) Amendments to Tax Returns. No Tax Returns for any Pre-Closing Taxable Periods may be amended without Realty’s and Marketing’s consent, which consent shall not be unreasonably withheld.

(g) Refunds of Taxes and Tax Benefits.

(i) Realty shall be entitled to any refund of Taxes and any Tax Benefits realized as a result of a Final Determination with respect to all Tax Returns filed by Realty pursuant to Section 2(a)(i). Marketing shall be entitled to any refund with respect to all Tax Returns filed by Marketing pursuant to Section 2(a)(ii). Any such refunds attributable to a Straddle Period shall be allocated between the Pre-Closing Straddle Period and Post-Closing Straddle Period on a basis consistent with the method used to allocate the Tax liability for such Straddle Period. With respect to Straddle Period Tax Returns prepared by Marketing pursuant to Section 2(a)(ii), Realty shall be entitled to any refund attributable to a Pre-Closing Straddle Period.

(ii) If Realty or any Realty Member receives a Tax refund or Tax Benefit to which Marketing or any Marketing Member is entitled pursuant to this Agreement, Realty shall pay (in accordance with Section 4) the amount of such Tax refund or Tax Benefit to Marketing within fourteen (14) days of receipt thereof.

(iii) Except as otherwise provided in this Agreement, if Marketing or any Marketing Member receives a Tax refund or Tax Benefit to which Realty or any Realty Member is entitled pursuant to this Agreement, Marketing shall pay (in accordance with Section 4) the amount of such Tax refund or Tax Benefit (including any interest received thereon) to Realty within fourteen (14) days of receipt thereof.

(h) Carrybacks. Marketing shall not file any carryback claim for federal Taxes or state or local Taxes in a Combined Jurisdiction for the Marketing Group or any Marketing Member into a Pre-Closing Taxable Period without the prior written consent of Realty, which consent shall not be unreasonably withheld.


3. INDEMNIFICATION.

(a) By Realty.

(i) Taxes. Except as provided in Section 3(b), Realty shall indemnify and hold Marketing and Marketing Members harmless against any and all (A) Taxes attributable to all Tax Returns filed by Realty pursuant to Section 2(a)(i), (B) with respect to Straddle Period Tax Returns prepared by Marketing pursuant to Section 2(a)(ii), Taxes attributable to Pre-Closing Straddle Periods as shown on such Tax Returns, and (C) Taxes attributable to the Spin-off or the Preliminary Transactions.

(ii) Liability Under Treasury Regulation Section 1.1502-6. Except as provided in Sections 3(a)(i) and 3(b), Realty shall indemnify and hold Marketing and the Marketing Members harmless against each and every liability for Taxes of the Pre-Spin-off Group under Treasury Regulation Section 1.1502-6 or any similar law, rule or regulation administered by any Taxing Authority.

(b) By Marketing. Marketing shall indemnify and hold Realty and Realty Members harmless against any and all Taxes attributable to all Tax Returns filed by Marketing pursuant to Section 2(a)(ii) (but excluding Taxes attributable to Pre-Closing Straddle Periods that are shown on any Straddle Period Tax Returns).

(c) Certain Reimbursements. Marketing (or Realty, as the case may be) shall notify Realty (or Marketing) of any Taxes paid by the Marketing Group or any Marketing Member (or the Realty Group or any Realty Member) which are subject to indemnification under this Section 3. To the extent not otherwise provided in this Section 3, any other notification contemplated by this Section 3(c) shall include a detailed calculation (including, if applicable, separate allocations of such Taxes between Pre- and Post-Closing Taxable Periods and Pre- and Post-Closing Straddle Periods and supporting work papers) and a brief explanation of the basis for indemnification hereunder. Whenever a notification described in this Section

3(c) is given, the notified party shall pay the amount requested in such notice to the notifying party in accordance with Section 4, but only to the extent that the notified party agrees with such request. To the extent the notified party disagrees with such request, it shall, within 20 business days, so notify the notifying party, whereupon the parties shall use their best efforts to resolve any such disagreement. Any payment made after such 20 business day period shall include interest from the date such payment would have been made under Section 4 based upon the original notice given by the notifying party, at the Overdue Rate calculated as of such date.

(d) Other Indemnifications. Notwithstanding the foregoing, the indemnification provisions in this Agreement shall not restrict the scope of any other indemnification provisions between any Realty Member and any Marketing Member as set forth in any other intercompany agreements entered into in connection with the Spin-off or the Preliminary Transactions, including, but not limited to, the Distribution Agreement.


4. METHOD, TIMING AND CHARACTER OF PAYMENTS REQUIRED BY THIS AGREEMENT.

(a) Payment in Immediately Available Funds; Interest. All payments made pursuant to this Agreement shall be made in immediately available funds. Except as otherwise provided herein, any payment not made within fourteen (14) days of when due shall thereafter bear interest from the date such payment was due at the Overdue Rate calculated as of such date.

(b) Characterization of Payments. Any payment (other than interest thereon) made hereunder by Realty to Marketing or by Marketing to Realty shall be treated by all parties for Tax purposes to the extent permitted by law, and for accounting purposes to the extent permitted by generally accepted accounting principles, as non-taxable dividend distributions or capital contributions, as the case may be, made prior to the close of business on the Closing Date.


5. TAX RETURNS; COOPERATION; DOCUMENT RETENTION; CONFIDENTIALITY.

(a) Provision of Cooperation, Documents and Other Information. Upon the reasonable request of any party to this Agreement, Realty and Marketing shall provide (and shall cause the members of their respective Affiliated Groups to provide) the requesting party, promptly upon request, with such cooperation and assistance, documents, and other information, without charge, as may reasonably be requested by such party in connection with (i) the preparation and filing of any original or amended Tax Return, (ii) the conduct of any audit or other examination or any judicial or administrative proceeding involving to any extent Taxes or Tax Returns within the scope of this Agreement, or (iii) the verification by a party of an amount payable hereunder to, or receivable hereunder from, another party. Such cooperation and assistance shall include, without limitation: (i) the provision on demand of books, records, Tax Returns, documentation or other information relating to any relevant Tax Return; (ii) the execution of any document that may be necessary or reasonably helpful in connection with the filing of any Tax Return, or in connection with any audit, proceeding, suit or action of the type generally referred to in the preceding sentence, including, without limitation, the execution of powers of attorney and extensions of applicable statutes of limitations, with respect to Tax

Returns which Realty may be obligated to file on behalf of Marketing Members pursuant to Section 2(a); (iii) the prompt and timely filing of appropriate claims for refund; and (iv) the use of reasonable efforts to obtain any documentation from a governmental authority or a third party that may be necessary or helpful in connection with the foregoing. Each party shall make its employees and facilities available on a mutually convenient basis to facilitate such cooperation.

(b) Retention of Books and Records. Realty, each Realty Member, Marketing and each Marketing Member shall retain or cause to be retained all Tax Returns, and all books, records, schedules, workpapers, and other documents relating thereto, until the expiration of the later of (i) all applicable statutes of limitations (including any waivers or extensions thereof), and (ii) any retention period required by law or pursuant to any record retention agreement. The parties hereto shall notify each other in writing of any waivers, extensions or expirations of applicable statutes of limitations. The parties shall provide written notice of any intended destruction of the documents referred to in this subsection. A party giving such a notification shall not dispose of any of the foregoing materials without first offering to transfer possession thereof to all notified parties.

(c) Status and Other Information Regarding Audits and Litigation. Each party shall use reasonable efforts to keep the other party advised, as to the status of Tax audits and litigation involving any issue relating to any Taxes, Tax Returns or Tax Benefits subject to indemnification under this Agreement. To the extent relating to any such issue, each party shall promptly furnish the other party copies of any inquiries or requests for information from any Taxing Authority or any other administrative, judicial or other governmental authority, as well as copies of any revenue agent’s report or similar report, notice of proposed adjustment or notice of deficiency.

(d) Confidentiality of Documents and Information. Except as required by law or with the prior written consent of the other party, all Tax Returns, documents, schedules, work papers and similar items and all information contained therein, which Tax Returns and other materials are within the scope of this Agreement, shall be kept confidential by the parties hereto and their Representatives, shall not be disclosed to any other person or entity and shall be used only for the purposes provided herein.


6. CONTESTS AND AUDITS.

(a) Notification of Audits or Disputes. Upon the receipt by a party of notice of any pending or threatened Tax audit or assessment which may affect the liability for Taxes that are subject to indemnification hereunder, such party shall promptly notify the other party in writing of the receipt of such notice.

(b) Control and Settlement. Realty shall have the right and obligation to control, and to represent the interests of all affected taxpayers in, any Tax audit or administrative, judicial or other proceeding relating, in whole or in part, to any Pre-Closing Taxable Period or any other Taxable Period for which Realty is responsible, in whole or in part, for Taxes under Sections 2(e) and (3), and to employ counsel of its choice; provided, however, that, with respect to such issues that may cause an indemnity payment, Realty (i) shall in good faith

consult with Marketing as to the handling and disposition of such issues and (ii) shall not enter into any settlement that impacts Marketing or any Marketing Member for any taxable period without the written consent of Marketing, which consent shall not be unreasonably withheld; and provided, further, that Marketing shall deliver to Realty a written response to any notification by Realty of a proposed settlement within ten days of the receipt of such notification. If Marketing fails to so respond within such ten day period, Marketing shall be deemed to have consented to the proposed settlement.

(c) Delivery of Powers of Attorney and Other Documents. Marketing shall execute and deliver to Realty, promptly upon request, powers of attorney authorizing Realty to extend statutes of limitations, receive refunds, negotiate settlements and take such other actions that Realty reasonably considers to be appropriate in exercising its control rights pursuant to Section 6(b), and any other documents reasonably necessary to effect the exercising of such control rights.

7. MISCELLANEOUS.

(a) Effectiveness. This Agreement shall be effective from and after the Closing Date and shall survive until the expiration of any applicable statute of limitations; provided, however, that this Agreement shall terminate immediately upon a termination of the Distribution Agreement in accordance with the terms of Section 11.07 thereof and thereafter this Agreement shall be of no further force and effect.

(b) Entire Agreement. This Agreement contains the entire agreement among the parties hereto with respect to the subject matter hereof. This Agreement terminates and supersedes, on a prospective basis only, any and all other sharing or allocation agreements with respect to Taxes in effect at the time between the Pre-Spin-off Group and the Marketing Members, but shall not affect any such agreement to the extent applicable only among Realty Members.

(c) Guarantees of Performance. Realty and Marketing hereby guarantee the complete and prompt performance by the members of their respective Affiliated Groups of all of their obligations and undertakings pursuant to this Agreement. If, subsequent to the close of business on the Closing Date, either Realty or Marketing shall be acquired by another entity such that 50% or more of its common stock is in common control with such acquirer, such acquirer shall, by making such acquisition, simultaneously agree to jointly and severally guarantee the complete and prompt performance by the acquired corporation and any Affiliate of the acquired corporation of all of their obligations and undertakings pursuant to this Agreement.

(d) Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable, the enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions hereof without including any of such which may

hereafter be declared invalid, void or unenforceable. In the event that any such term, provision, covenant or restriction is hereafter held to be invalid, void or unenforceable, the parties hereto agree to use their best efforts to find and employ an alternate means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.

(e) Indulgences, etc. Neither the failure nor any delay on the part of any party hereto to exercise any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude any other or further exercise of the same or any other right, nor shall any waiver of any right with respect to any occurrence be construed as a waiver of such right with respect to any other occurrence.

(f) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without regard to the conflict of law principles thereof.

(g) Notices. All notices and other communications hereunder shall be in writing and shall be delivered by hand or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other addresses for a party as shall be specified by like notice) and shall be deemed given on the date on which such notice is received:


	To Marketing:

		Getty Petroleum Marketing, Inc.
		125 Jericho Turnpike Jericho,
		New York 11753
		Attention: ___________________

	To Getty:

		Getty Realty Corp.
		125 Jericho Turnpike
		Jericho, New York 11753
		Attention: ___________________

(h) Modification or Amendment. This Agreement may be amended at any time by written agreement executed and delivered by duly authorized officers of Marketing and Realty.

(i) Successors and Assigns. A party’s rights and obligations under this Agreement may be assigned to the successor in interest or assignee of substantially all of its business or assets, or the surviving party of any merger or consolidation to which it is a party, provided that the assignee of any assignment assumes all the assignor’s obligations hereunder. Apart from any assignment permissible under the preceding sentence, a party’s rights and obligations under this Agreement may not be assigned without the prior written consent of the other party. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

(j) No Third-Party Beneficiaries. This Agreement is solely for the benefit of the parties to this Agreement and their respective Affiliates and should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without this Agreement.

(k) Other. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all of such counterparts shall together constitute one and the same instrument. The section numbers and captions herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

(l) Predecessors and Successors. To the extent necessary to give effect to the purposes of this Agreement, any reference to any corporation, Affiliated Group or member of an Affiliated Group shall also include any predecessors or successors thereto, by operation of law or otherwise.

(m) Tax Elections. Nothing in this Agreement is intended to change or otherwise affect any previous tax election made by or on behalf of the Pre-Spin-off Group (including the election with respect to the calculation of earnings and profits under Code Section 1552 and the regulations thereunder). Realty, as common parent of the Realty Group, shall continue to have discretion, reasonably exercised, to make any and all elections with respect to all members of the Pre-Spin-off Group for all Pre-Closing Taxable Periods for which it is obligated to file Tax or Information Returns under Section 2(a)(i).

(n) Injunctions. The parties acknowledge that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached. The parties hereto shall be entitled to an injunction or injunctions to prevent breaches hereto and to enforce specifically the terms and provisions hereof in any court having jurisdiction; such remedy shall be in addition to any other remedy available at law or in equity.

(o) Further Assurances. Subject to the provisions hereof, the parties hereto shall make, execute, acknowledge and deliver such other instruments and documents, and take all such other actions, as may be reasonably required in order to effectuate the purposes of this Agreement and to consummate the transactions contemplated hereby. Subject to the provisions hereof, each party shall, in connection with entering into this Agreement, performing its obligations hereunder and taking any and all actions relating hereto, comply with all

applicable laws, regulations, orders and decrees, obtain all required consents and approvals and make all required filings with any governmental agency, other regulatory or administrative agency, commission or similar authority and promptly provide the other party with all such information as it may reasonably request in order to be able to comply with the provisions of this sentence.

(p) Costs and Expenses. Unless otherwise specifically provided herein, each party agrees to pay its own costs and expenses resulting from the fulfillment of its respective obligations hereunder.

(q) Rules of Construction. Any ambiguities shall be resolved without regard to which party drafted the Agreement.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or have caused this Agreement to be duly executed on their respective behalf by their respective officers thereunto duly authorized, as of the day and year above written.


	GETTY PETROLEUM CORP.

	By:

	Name:

	Title:


	[Subsidiaries — To be supplied.]

	By:

	Name:

	Title:


	GETTY PETROLEUM MARKETING INC.

	By:

	Name:

	Title:


	[Subsidiaries — To be supplied.]

	By:

	Name:

	Title:


14

EXHIBIT 10.10 CONSOLIDATED, AMENDED AND RESTATED MASTER LEASE AGREEMENT DATED NOVEMBER 2, 2000 BETWEEN GETTY PROPERTIES CORP. AND GETTY PETROLEUM MARKETING INC.

CONSOLIDATED,
AMENDED AND RESTATED

MASTER LEASE

DATED AS OF

NOVEMBER 2, 2000

BETWEEN

GETTY PROPERTIES CORP., AS LANDLORD,

AND

GETTY PETROLEUM MARKETING INC., AS TENANT

This CONSOLIDATED, AMENDED AND RESTATED MASTER LEASE (together with all Exhibits and Schedules attached hereto, this “Restated Lease”) is made and entered into as of November 2, 2000 between Getty Properties Corp., a Delaware corporation, whose address is 125 Jericho Turnpike, Jericho, New York 11753 (formerly known as Getty Realty Corp.,) (as further defined hereinafter, “Landlord”), and Getty Petroleum Marketing Inc., a Maryland corporation whose address is 125 Jericho Turnpike, Jericho, New York 11753 (as further defined hereinafter, “Tenant”).

R E C I T A L S

A. Pursuant to that certain Master Lease, dated February 1, 1997, between Landlord and Tenant (the “1997 Master Lease”) and the Post-Reorganization Leases (as hereinafter defined), Landlord leased to Tenant, in addition to other properties, the lands described in Exhibit A and subleased or sub-subleased to Tenant, in addition to other properties, the lands described on Exhibit B (all such lands described on Exhibit A and Exhibit B being referred to hereinafter collectively as the “Land”), together with all right, title and interest of Landlord, if any, in and to: (a) all buildings, structures and other improvements and appurtenances then located on the Land; (b) the land lying in the bed of any street or highway in front of or adjoining the Land to the center line of such street or highway; (c) the appurtenances and all the estate and rights to the Land; (d) any strips or gores adjoining the Land; and (e) any furnishings, fixtures, equipment or other personal property attached or appurtenant to any improvements then located on the Land (all of the foregoing, as they exist as of the Restatement Effective Date, including all Improvements (as hereinafter defined) together with Landlord’s right, title and interest in and to all easements, covenants, rights of way and similar rights benefiting the Land, collectively, the “Premises”, as further defined hereinafter, and individually, a “Property,” as further defined hereinafter).

B. Landlord and Tenant desire, as of the Restatement Effective Time (as hereinafter defined), to incorporate and consolidate the 1997 Master Lease and the Post-Reorganization Leases (individually and collectively, the “Original Lease”) into a single document and to further amend and restate the Original Lease, all as set forth in this Restated Lease and desire that, from and after the Restatement Effective Time, all rights and obligations of Landlord and Tenant shall be governed by this Restated Lease such that this Restated Lease shall consolidate, supersede and restate in their entirety the Original Lease from and after the Restatement Effective Time.

C. This Restated Lease is intended to constitute a single lease of the Premises and may not be severed, bifurcated, divided, or otherwise split in any manner whatsoever.

D. Landlord and Tenant acknowledge that (i) the entering into of this Restated Lease is of primary importance to Tenant, and Tenant would not have entered into (or caused any of its Affiliates or Subsidiaries to enter into) the Merger Agreement (as hereinafter defined) without there having been such an agreement, and (ii) the agreement between Landlord and Tenant to treat this as a single lease in all respects is of primary importance to Landlord, and neither Landlord nor any of its Affiliates or Subsidiaries would have entered into this Restated Lease without there being such an agreement and such treatment of this Restated Lease.

NOW, THEREFORE, in exchange for good and valuable consideration, as of the Restatement Effective Time, Landlord hereby leases, subleases and sub-subleases the Premises to Tenant and Tenant hereby takes and hires the Premises from Landlord, subject only to the Permitted Exceptions (as hereinafter defined) and the Subleases (as hereinafter defined), for the Term (as hereinafter defined), upon the terms and conditions of this Restated Lease. As of the Restatement Effective Time, the Original Lease shall be deemed to be consolidated, amended, restated and superceded in its entirety as follows:

1. DEFINITIONS.

The following definitions shall apply throughout this Restated Lease, in addition to any other definitions elsewhere in this Restated Lease. An Index of Defined Terms follows the signature page.

1.1 1998 Master Lease. The term “1998 Master Lease” means that certain Master Lease, dated December 22, 1998, between the Leemilt’s Lessor and Tenant.

1.2 Abandoned Properties. The term “Abandoned Properties” means the ten (10) properties listed on Schedule 1 hereto, each of which were demised under the Original Lease and shall not be demised under this Restated Lease. The term “Abandoned Property” shall have the correlative singular meaning.

1.3 Additional Rent. The term “Additional Rent” means, whether or not designated as such, any and all sums and payments that this Restated Lease requires Tenant to pay to Landlord, except Fixed Rent. Additional Rent shall also include (a) all Impositions and (b) all percentage rent, gallonage rent, and royalties payable under Third Party Leases, if any.

1.4 Affiliate. The term “Affiliate” means, with respect to any Person, (i) any other Person that, directly or indirectly, controls or is controlled by or is under common control with such Person, (ii) any other Person that owns, beneficially, directly or indirectly, ten percent (10%) or more of the outstanding capital stock, shares or equity interests of such Person, or (iii) any officer, director, employee, partner or trustee of such Person or any Person controlling, controlled by or under common control with such Person. For the purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities or partnership interests or otherwise.

1.5 April 1999 Master Lease. The term “April 1999 Master Lease” means that certain Master Lease, dated April 6, 1999, between the Leemilt’s Lessor and Tenant.

1.6 Award. The term “Award” means compensation paid on account of a Condemnation whether pursuant to judgment or by agreement or otherwise.

1.7 Bankruptcy Default. The term “Bankruptcy Default” means the occurrence of any of the following Non-Monetary Defaults: (a) if Tenant shall make an assignment for the benefit of its creditors; (b) if any petition shall be filed against Tenant in any

court, whether or not pursuant to any statute of the United States or of any State, in any bankruptcy, reorganization, composition, extension, arrangement, insolvency or similar proceeding, and Tenant shall thereafter be adjudicated bankrupt, or if any such proceeding shall not be dismissed within ninety (90) days after the institution of the same; or if any such petition shall be so filed by Tenant or a liquidator; or (c) if, in any proceeding, a receiver, receiver and manager, trustee or liquidator shall be appointed for all or any portion of Tenant’s property, and such receiver, receiver and manager, trustee or liquidator shall not be discharged within ninety (90) days after the appointment of such receiver, receiver and manager, trustee or liquidator.

1.8 Business Day. The term “Business Day” means any weekday on which banks in the State of New York are generally open to conduct regular banking business with bank personnel.

1.9 Casualty. The term “Casualty” means any damage or destruction affecting any or all of the Improvements on any Property.

1.10 Closure. The term “Closure” means:


	(a) Receipt of written notice from the applicable Government that “no further Remediation” of the Contamination is required;

	(b) Receipt of written notice from the applicable Government that the approved Remediation plan for the Contamination has been completed;

	(c) Where expressly authorized by applicable Environmental Law, receipt of written notice from a licensed site professional or similar Remediation consultant approved by Tenant or Landlord (if chosen by the other party), such approval not to be unreasonably withheld, that the approved Remediation plan for the Contamination has been completed, provided that Landlord or Tenant, as applicable, shall remain responsible for any additional Remediation required by the applicable Government resulting from the applicable Government’s audit of the Remediation that the licensed site professional or similar Remediation consultant has determined to have been completed; or

	(d) Landlord or Tenant as applicable, has requested a closure letter or notice from the applicable Government, has not received any response of any kind to its request for twelve (12) months, and Landlord or Tenant, as applicable, has determined that the soil and groundwater have been Remediated to levels below or equal to the limits required by the applicable Government at the conclusion of the twelve-month period following submission of the Closure letter request based on four (4) successive quarterly monitoring tests by a recognized environmental contractor.

The satisfaction of any one of the above conditions shall be referred to as “Closure” herein. “No further Remediation” shall include, without limitation, “closed” “no further action,” “inactive site

status” or similar terms, even if such letters have qualifications such as “at this time,” “does not meet state standards,” or the like.

1.11 Commencement Date. The term “Commencement Date” means (a) with respect to those Properties leased or subleased to Tenant by the 1997 Master Lease, February 1, 1997; (b) with respect to those Properties leased to Tenant by the 1998 Master Lease, December 22, 1998 with respect to certain of such Properties and otherwise the date set forth on Exhibit A thereto; (c) with respect to those Properties leased to Tenant by the April 1999 Master Lease, April 6, 1999; and (d) with respect to those Properties leased to Tenant by the September 1999 Master Lease, (i) October 6, 1999 with respect to the Property having a street address of 592 Route 70, Brick, New Jersey and (ii) September 30, 1999 with respect to the Property having a street address of 650 Route 15 South, Lake Hopatcong, New Jersey.

1.12 Condemnation. The term “Condemnation” means any taking of title to any Property or any part of any Property by exercise of any right of eminent domain by, or by any similar proceeding or act of, any Government, quasi-public authority or private corporation having the power and legal authority to do so. For the purposes of this definition, the effective date of any such condemnation shall be deemed to be the later of: (a) the date when title to the applicable Property or part thereof is transferred by such proceeding or act of the condemning authority, and (b) the date when Tenant or the applicable Subtenant or other occupant is no longer permitted to occupy such Property.

1.13 Construction Work. The term “Construction Work” means any alteration, modification, demolition, or other construction or reconstruction work, or the construction or reconstruction of any new Improvements, or repair of any existing Improvements, located on, under or at any Property.

1.14 Contamination. The term “Contamination” means recoverable free liquid hydrocarbons, dissolved hydrocarbon components, absorbed and vapor phase hydrocarbon, or other environmental contamination that is required to be Remediated under applicable Environmental Laws.

1.15 County. The term “County” means the county where any Property is located.

1.16 CPI. The term “CPI” means the United States Department of Labor, Bureau of Labor Statistics “Consumer Price Index” for Urban Wage Earners and Clerical Workers (CPI-W) published for New York - Northern New Jersey - Long Island, NY-NJ-CT-PA, with a base of 1982-1984 = 100, or the successor index thereto. If the CPI ceases to be published, and there is no successor thereto, such other index as Landlord and Tenant shall agree upon in writing shall be substituted for the CPI. The CPI for any calendar month shall be deemed to mean the CPI last published before such calendar month.

1.17 CPI Adjustment Factor. As of any date of determination, the term “CPI Adjustment Factor” means the greater of (a) 1.00 or (b) the following fraction:

CPI for the calendar month immediately preceding such
date of determination

CPI for the calendar month during which the Restatement
Effective Date occurred.

1.18 Default. The term “Default” means any Material Monetary Default, Non-Material Monetary Default, Non-Monetary Default or Landlord Default.

1.19 Depository. The term “Depository” means, at Tenant’s or Leasehold Mortgagee’s election, any of the following: (a) an Institutional Lender, (b) Leasehold Mortgagee, (c) a national title insurance company reasonably acceptable to Landlord and licensed to do business in the State of New York, or (d) a servicer regularly used by Institutional Lenders in connection with loan transactions. Tenant shall pay all fees and expenses charged by the Depository.

1.20 Distribution Agreement. The term “Distribution Agreement” means that certain Reorganization and Distribution Agreement dated as of January 31, 1997 transferring to Tenant the Marketing Assets and Marketing Business (as such terms are defined therein) in connection with that certain distribution by Landlord of the common stock of Tenant to the stockholders of Landlord, as amended from time to time.

1.21 Environmental Agreement. The term “Environmental Agreement” means that certain Environmental Indemnity Agreement between Landlord and Tenant dated as of the date hereof, as the same may be amended or modified from time to time.

1.22 Environmental Law. The term “Environmental Law” means all laws, ordinances, requirements, orders, directives, rules, regulations, and applicable judicial and administrative decisions, orders and decrees of any applicable Government affecting the development, improvement, alteration, use, maintenance, operation or occupancy of the Premises, any Property, or any part of any Property, whether in force at the Commencement Date or passed, enacted or imposed at some time in the future, to the extent applicable to conditions on, under, or about the Premises, any Property, or any part of any Property, or arising from use or occupancy thereof, related to pollution, protection of human health or the environment from exposure to Hazardous Substances, including but not limited to, Laws relating to the release or discharge of Hazardous Substances to the ambient air, surface and subsurface soils, surface water and ground water, or governing the use, generation, storage, transportation, disposal, release, clean-up or control of Hazardous Substances in, on, at, to or from the Premises, any Property, or any part of any Property, subject in all cases, however, to all applicable waivers, variances and exemptions limiting the application of the foregoing.

1.23 Equipment Liens. The term “Equipment Liens” means purchase-money security interests, financing leases, personal property liens, and similar arrangements (including the corresponding UCC-1 financing statements) relating to Tenant’s and/or Subtenant’s acquisition, encumbering or financing of Personal Property, and used in connection with the operation of any business on the Premises not prohibited by this Restated Lease or any Third Party Lease, that are leased, purchased pursuant to conditional sale or installment sale

arrangements, encumbered by a security agreement made by Tenant and/or any Subtenant, as the case may be, or used under licenses, such as convenience food store equipment, gasoline marketing equipment, USTs (not owned by Landlord), furniture, fixtures and equipment, telephone, telecommunications and facsimile transmission equipment, point of sale equipment, televisions, radios, and computer systems, provided that each Equipment Lien encumbers or otherwise relates to only the property financed or otherwise provided by the secured party under such Equipment Lien.

1.24 Estoppel Certificate. The term “Estoppel Certificate” means a statement in writing containing all of the following statements (identifying in reasonable detail any exceptions that may exist at the time), as requested by either party: (a) this Restated Lease has not been amended or modified, constitutes the entire agreement between Landlord and Tenant relating to the Premises (except as otherwise set forth in Section 33.9), and is in full force and effect (or, if there have been amendments or modifications, that this Restated Lease as so amended or modified is in full force and effect and stating such amendments or modifications); (b) neither Landlord nor Tenant is in default under this Restated Lease and to the best of the signer’s knowledge no facts or circumstances exist that, with the passage of time or the giving of notice or both, would constitute Defaults under this Restated Lease by Landlord or Tenant (or, if there have been any Defaults or potential Defaults, specifying the nature of any such Default or potential Default); (c) Tenant has paid all Fixed Rent to date and, to the best of Landlord’s knowledge, all Additional Rent to date; (d) the Commencement Date, the Restatement Effective Date, or any other then-ascertainable date relevant to this Restated Lease; (e) this Restated Lease is a single lease demising the Premises and may not be severed, bifurcated, divided or otherwise split in any manner whatsoever; and (f) such other matters as either party shall reasonably request.

1.25 Fee Estate. The term “Fee Estate” means Landlord’s fee estate in the Premises or any Property or, in the case of a Property owned by a Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor, the fee estate of such Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor in such Property, as applicable.

1.26 Fee Mortgage. The term “Fee Mortgage” means any mortgage, deed of trust, deed to secure debt, assignment, security interest, pledge, financing statement or any other instrument(s) or agreement(s) intended to grant security for any obligation encumbering the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor, as the case may be, as existing, entered into, renewed, modified, amended, extended or assigned from time to time during the Term.

1.27 Fixed Rent. The term “Fixed Rent” means all rent payable under Section 3.1.

1.28 Fixed Rent Adjustment Procedures. The term “Fixed Rent Adjustment Procedures” shall have the meaning ascribed to it on Schedule 4.

1.29 Fleet Mortgage. The “Fleet Mortgage” means those certain Fee Mortgages securing the Power Test Lessor’s obligations pursuant to that certain Amended and Restated Loan Agreement between the Power Test Lessor and Fleet National Bank, dated October 31, 1995, as subsequently amended.

1.30 GAAP. The term “GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession of the United States of America, in all cases as interpreted by a significant segment of the accounting profession of the United States of America.

1.31 Gettymart Lease. The term “Gettymart Lease” means that certain Lease Agreement, dated as of the Restatement Effective Date, between the Gettymart Lessor, as landlord, and Landlord, as tenant.

1.32 Gettymart Lease Estoppel Certificate. The term “Gettymart Lease Estoppel Certificate” means a statement in writing containing all of the following statements (identifying in reasonable detail any exceptions that may exist at the time), as requested by Tenant: (a) the Gettymart Lease has not been amended or modified, constitutes the entire agreement between the Gettymart Lessor and Landlord relating to the Properties subject to the Gettymart Lease and is in full force and effect (or, if there have been amendments or modifications, that the Gettymart Lease as so amended or modified is in full force and effect and stating such amendments or modifications); (b) neither the Gettymart Lessor nor Landlord is in material default under the Gettymart Lease and, to the best of the Gettymart Lessor’s knowledge, no facts or circumstances exist that, with the passage of time or the giving of notice or both, would constitute material defaults under the Gettymart Lease by the Gettymart Lessor or Landlord (or, if there have been any material defaults or potential material defaults, specifying the nature of any such material default or potential material default); (c) Landlord has paid all rent to date; (d) any then-ascertainable date relevant to the Gettymart Lease; and (e) such other matters as Tenant shall reasonably request.

1.33 Gettymart Lessor. The term “Gettymart Lessor” means GettyMart, Inc., a Delaware corporation and its successors and assigns under the Gettymart Lease.

1.34 Government. The term “Government” means each and every applicable governmental authority, department, agency, bureau or other entity or instrumentality having jurisdiction over the Premises, including the federal government of the United States, the State government and any subdivisions and municipalities thereof, including the County government, and all other applicable governmental authorities and subdivisions thereof.

1.35 Governmental Request. The term “Governmental Request” means, with respect to any Person, such Person’s filing for (or other similar process) a building permit, fire underwriter’s certificate, zoning variance or similar permit, certificate or license or such Person’s making of any other inquiries with respect to any Property to the applicable Government.

1.36 Hazardous Substances. The term “Hazardous Substances” means those flammable substances, explosives, radioactive materials, asbestos, polychlorinated biphenyls, chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, medical wastes, toxic substances or related materials, petroleum and petroleum products, or other substances of any kind that are subject to regulation, control or remediation under Environmental Laws.

1.37 Impositions. The term “Impositions” means all Real Estate Taxes, water rents, rates and charges, sewer rents, commercial rent taxes, occupancy taxes (other than those that are treated as Real Estate Taxes), UST fees and taxes, and other impositions and charges of every kind and nature whatsoever with respect to any Property that may be assessed, levied, confirmed, imposed or become a lien on any Property or that may be levied, assessed or imposed upon the gross income arising from any Rent (in all cases, other than on account of any actions or omissions of Landlord, a Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor, or conditions existing on, at or with respect to any Property before the applicable Commencement Date), in all cases, by or for the benefit of any Government with respect to any period falling within the period from the Commencement Date through the end of the Term. Notwithstanding the foregoing, all such obligations of a lessee in a Third Party Lease, the Power Test Lease, the Leemilt’s Lease and the Gettymart Lease (except to the extent, if any, such item is included as Fixed Rent hereunder) are also Impositions. The term “Impositions” shall, however, not include any of the following, all of which Landlord shall pay before delinquent or payable only with a penalty: (a) any franchise, income, excess profits, estate, inheritance, succession, transfer, gift, corporation, business, capital levy, or profits tax, or license fee (other than a license fee imposed with respect to any Property or the Improvements thereon the maintenance of which is Tenant’s responsibility pursuant to the terms of this Restated Lease) of Landlord, (b) the incremental portion of any of the items listed in this Section that would not have been levied, imposed or assessed but for any sale or other direct or indirect transfer of the Fee Estate or of any interest in Landlord during the Term, (c) any charges that would not have been payable but for any act or omission of Landlord or conditions existing on, at or with respect to the Property before the applicable Commencement Date, (d) any charges that are levied, assessed or imposed against any Property during the Term based on the recapture or reversal of any previous tax abatement or tax subsidy, or compensating for any previous tax deferral or reduced assessment or valuation, or based on a miscalculation or misdetermination of any charge(s) of any kind imposed or assessed with respect to the Premises, relating to any period(s) before the applicable Commencement Date, and (e) interest, penalties and other charges with respect to items “a” through “d.”

1.38 Improvements. The term “Improvements” means all buildings, structures, landscaping, recreational facilities, signs, foundations, and other improvements, appurtenances and above-ground storage tanks now or hereafter located on the Premises. Under no circumstances shall the term “Improvements” be deemed to include any of the USTs, for which separate provision is made under this Restated Lease.

1.39 Indemnify. Wherever this Restated Lease provides that a party shall “Indemnify” another from or against a particular matter, such term means that the Indemnitor shall indemnify the Indemnitee (and its partners, officers, directors, members, shareholders,

agents, contractors and employees) and defend and hold the Indemnitee (and its partners, officers, directors, members, shareholders, agents, contractors and employees) harmless from and against any and all actual loss, cost, claims, liability, penalties, judgments, damage or other injury, detriment, or expense (including Legal Costs, interest and penalties) actually incurred or suffered by the Indemnitee (and its partners, officers, directors, members, shareholders, agents, contractors and employees) on account of the matter that is the subject of such indemnification or in enforcing the Indemnitor’s indemnity. Notwithstanding the foregoing or anything to the contrary contained in this Restated Lease, Indemnitor shall under no circumstances whatsoever be liable for consequential damages incurred by Indemnitee on account of the matter that is the subject of such indemnification.

1.40 Indemnitee. The term “Indemnitee” means a party that is entitled to be Indemnified pursuant to this Restated Lease.

1.41 Indemnitor. The term “Indemnitor” means a party that agrees to Indemnify another party pursuant to this Restated Lease.

1.42 Institutional Lender. The term “Institutional Lender” means a bank, trust company, insurance company or savings bank having, at any and all times, a net worth of not less than $500,000,000 (as increased on an annual basis, based on the CPI Adjustment Factor) and net assets of not less than $2,500,000,000 (as increased on an annual basis, based on the CPI Adjustment Factor); provided that any such entity shall qualify as an “Institutional Lender” only if such entity (a) is not an Affiliate of Tenant (unless such entity is an Affiliate of Tenant solely as a result of making a bona fide equity investment in Tenant); and (b) is subject to (1) the jurisdiction of the courts of the State of New York in any actions and (2) the supervision of (A) the Comptroller of the Currency, (B) the Department of Labor of the United States, (C) the Insurance Department or the Banking Department or the Comptroller of New York City, or any successor to any of the agencies or officials referred to in clauses (A) through (C).

1.43 Insubstantial Condemnation. The term “Insubstantial Condemnation” means any Condemnation other than a Substantial Condemnation or a Temporary Condemnation.

1.44 Knowledge. The term “knowledge”, means, with respect to Landlord, the actual knowledge of Leo Liebowitz, Randi Young Filip, John Fitteron, Edwin C. Levy, Scott Hanley, Vincent DeLaurentis, and Paul Stendardi, with inquiry, which inquiry (a) shall consist of and be limited to inquiry of employees of Landlord who may be reasonably expected to have information with respect to the relevant matter and (b) shall in no event require any review of any files, databases or records which may contain relevant information. The phrase “to the best of Landlord’s knowledge” shall have the same meaning.

1.45 Landlord. The term “Landlord” means Getty Properties Corp. (formerly known as Getty Realty Corp.) and certain of its Affiliates and/or Subsidiaries, who have approved this Restated Lease on the signature page hereof, and their respective successors and assigns.

1.46 Landlord’s Award. The term “Landlord’s Award” means, at any point in time, an amount equal to the then fair market value of the Fee Estate (which, for the purposes of

this definition, shall include Landlord’s leasehold interest in the Fee Estates owned by a Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor (it being understood that the Power Test Lessor, the Leemilt’s Lessor or the Gettymart Lessor, as applicable, as landlord thereunder, and Landlord, as tenant thereunder, shall in no event seek Awards with respect to the same estate or interest in the Fee Estate encumbered by any such Power Test Lease, the Leemilt’s Lease or the Gettymart Lease, as applicable) in the applicable Property (including the then fair market value of the rights of the holder of such Fee Estate in and to the Improvements thereon), considered: (i) as if the Condemnation had not occurred; (ii) without adjusting for any expectation of the Condemnation; (iii) as if this Restated Lease had not terminated with respect to the applicable Property as of the effective date of the Condemnation; and (iv) taking into account the benefits and burdens of this Restated Lease, the remaining Term (as further defined in this definition), all Permitted Exceptions, and all other matters affecting such Fee Estate and its valuation. For the purposes of calculating “Landlord’s Award,” the Term of this Restated Lease shall include only those Renewal Terms for which Tenant had previously exercised its Renewal Option in accordance with the provisions of this Restated Lease. “Landlord’s Award” shall be determined independently of, and without regard to, any valuation of the Fee Estate established in any Condemnation proceeding.

1.47 Law. The term “Law” or “Laws” means all laws, ordinances, requirements, orders, directives, rules, regulations, and applicable judicial and administrative decisions, orders and decrees of any applicable Government affecting the development, improvement, alteration, use, maintenance, operation or occupancy of the Premises, any Property, or any part of any Property, whether in force at the Commencement Date or passed, enacted or imposed at some time in the future, subject in all cases, however, to all applicable waivers, variances and exemptions limiting the application of the foregoing. Notwithstanding the foregoing, for the purposes of this Restated Lease, the terms “Law” and “Laws” shall in no event be deemed to include Environmental Law or Environmental Laws, for which separate provision is made herein.

1.48 Lease Termination Damages. The term “Lease Termination Damages” means an amount per annum equal to the Annual Damage Amount (as defined hereinafter), payable in accordance with the following sentence. Landlord shall pay the Annual Damage Amount to Tenant quarterly, in equal installments, for each calendar year (or portion thereof) during the shortest of the following periods, as applicable: (a) a five (5) year period commencing on the termination of the applicable Third Party Lease, (b) the period of the then remaining Term of this Restated Lease, and (c) the period of the then remaining term of the terminated Third Party Lease. As used herein, the term “Annual Damage Amount” means a sum equal to the product of (a) the volume of gas sales in gallons at the Property with respect to which a Third Party Lease has been terminated in the twelve (12) full calendar months immediately prior to the termination of such Third Party Lease, times (b) ten cents ($.10), less an equitable amount attributable to Tenant’s cost of doing business at such Property (including, without limitation, the Rent allocable to such Property, the determination of which shall be made in accordance with the principles set forth in the Fixed Rent Adjustment Procedures) during such period.

1.49 Lease Year. The first “Lease Year” of this Restated Lease means the twelve-month period commencing on the Restatement Effective Date and ending on the day

before the first anniversary of the Restatement Effective Date. The second “Lease Year” means the period commencing on the first anniversary of the Restatement Effective Date and ending on the day before the second anniversary of the Restatement Effective Date; and so on for each subsequent twelve-month period during the Initial Term and, if any, the Renewal Term(s).

1.50 Leasehold Estate. The term “Leasehold Estate” means Tenant’s leasehold estate in any Property owned by Landlord in fee and demised under this Restated Lease and, in the case of a Property owned by a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor or the Gettymart Lessor, Tenant’s subleasehold estate demised under this Restated Lease, in all cases upon and subject to all the terms and conditions of this Restated Lease.

1.51 Leasehold Mortgagee. The term “Leasehold Mortgagee” means a Permitted Leasehold Mortgagee holding a Permitted Leasehold Mortgage.

1.52 Legal Costs. The term “Legal Costs” means all reasonable costs and expenses incurred by a party to this Restated Lease in connection with any legal proceeding or contest, including reasonable attorneys’ fees, consultant’s fees, court costs, and expenses.

1.53 Leemilt’s Lease. The term “Leemilt’s Lease” means (i) before the Restatement Effective Time, that certain Lease Agreement, dated as of February 1, 1985, between the Leemilt’s Lessor, as landlord, and Landlord, as tenant and (ii) at and after the Restatement Effective Time, that certain Lease Agreement dated as of the Restatement Effective Date between the Leemilt’s Lessor, as landlord, and Landlord, as tenant.

1.54 Leemilt’s Lease Estoppel Certificate. The term “Leemilt’s Lease Estoppel Certificate” means a statement in writing containing all of the following statements (identifying in reasonable detail any exceptions that may exist at the time), as requested by Tenant: (a) the Leemilt’s Lease has not been amended or modified, constitutes the entire agreement between the Leemilt’s Lessor and Landlord relating to the Properties subject to the Leemilt’s Lease and is in full force and effect (or, if there have been amendments or modifications, that the Leemilt’s Lease as so amended or modified is in full force and effect and stating such amendments or modifications); (b) neither the Leemilt’s Lessor nor Landlord is in material default under the Leemilt’s Lease and, to the best of the Leemilt’s Lessor’s knowledge, no facts or circumstances exist that, with the passage of time or the giving of notice or both, would constitute material defaults under the Leemilt’s Lease by the Leemilt’s Lessor or Landlord (or, if there have been any material defaults or potential material defaults, specifying the nature of any such material default or potential material default); (c) Landlord has paid all rent to date; (d) any then-ascertainable date relevant to the Leemilt’s Lease; and (e) such other matters as Tenant shall reasonably request.

1.55 Leemilt’s Lessor. The term “Leemilt’s Lessor” means Leemilt’s Petroleum, Inc. and its successors and assigns, as lessor under the Leemilt’s Lease.

1.56 License Agreement. The term “License Agreement” means that certain Amended and Restated Trademark License Agreement dated as of the date hereof, as the same may be amended or modified from time to time.

1.57 Major Violation. The term “Major Violation” means a Preexisting Violation which results in a Government sending written notice to Landlord, Tenant, a Subtenant, a Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or a Property that such Preexisting Violation is a violation of Law and requiring cure of the same.

1.58 Marketing Parent. The term “Marketing Parent” means OAO LUKoil, a Russian Corporation, and its successors and assigns.

1.59 Material Monetary Default. The term “Material Monetary Default” means any failure by Tenant (A) to pay Fixed Rent or Real Estate Taxes, in either case when, as and in the amount required to be paid by Tenant pursuant to the terms of this Restated Lease or (B) in the case of insurance, to maintain the insurance coverage required in Article 12. Notwithstanding the preceding sentence, a “Material Monetary Default” will not be deemed to occur with respect to Tenant’s failure to pay any Real Estate Tax unless Tenant fails to pay such Real Estate Tax on or prior to the last day on which such Real Estate Tax may be paid to the appropriate taxing authority without penalty or interest.

1.60 Merger Agreement. The term “Merger Agreement” means that certain Agreement and Plan of Merger dated as of the date hereof among OAO LUKOIL, LUKOIL International GmbH, LUKOIL Americas Corporation, Mikecon Corp., and Getty Petroleum Marketing Inc., as the same may be amended or modified from time to time.

1.61 Mortgage. The term “Mortgage” means a Fee Mortgage or a Permitted Leasehold Mortgage.

1.62 New Contamination. The term “New Contamination” means Contamination discovered at any Property at which Landlord is conducting Remediation under Section 9.2, which Properties are set forth on Schedule 3, after Landlord has commenced such Remediation and before Closure is obtained by Landlord. Tenant shall have the burden of proving that any such discovered Contamination is not New Contamination but Contamination for which Landlord is obligated to Remediate.

1.63 Non-Material Monetary Default. The term “Non-Material Monetary Default” means any failure by Tenant to pay any charge or sum(s) of money payable by Tenant pursuant to this Restated Lease (other than Fixed Rent, Real Estate Taxes and insurance premiums required to maintain the insurance coverage set forth in Article 12 hereof), when, as, and in the amount required to be paid by Tenant pursuant to the terms of this Restated Lease.

1.64 Non-Monetary Default. The term “Non-Monetary Default” means any failure by Tenant to comply with any terms or provisions of, or perform as required by, this Restated Lease, other than a Material Monetary Default or a Non-Material Monetary Default. A Bankruptcy Default shall be considered a Non-Monetary Default.

1.65 Notice. The term “Notice” means any notice, demand, request, election, designation, approval, or consent, including any of the foregoing relating to a Default by any party hereunder, that is permitted, required or desired to be given by either party in connection with this

Restated Lease. Notices shall be delivered, and shall become effective, only in accordance with the requirements of Article 20.

1.66 Pelham Manor Rezoning Event. The term “Pelham Manor Rezoning Event” means the date when, as a result of the enactment of a final, non-appealable change in Law, the use of the Property having a mailing address of 4301 Boston Post Road, Bronx, New York 10466 as a Petroleum Terminal Property is no longer lawful.

1.67 Permitted Exception. The term “Permitted Exception” means all liens, charges, estates and encumbrances currently affecting the Premises as of the Restatement Effective Date.

1.68 Permitted Leasehold Mortgage. The term “Permitted Leasehold Mortgage” means any mortgage, deed of trust, deed to secure debt, assignment, security interest, pledge, financing statement or any other instrument(s) or agreement(s) that is held by a Permitted Leasehold Mortgagee and is intended to grant security for any obligation encumbering the entire Leasehold Estate, as the same may be entered into, renewed, modified, amended, extended or assigned from time to time during the Term.

1.69 Permitted Leasehold Mortgagee. The term “Permitted Leasehold Mortgagee” means any of (i) an Institutional Lender, (ii) any of the entities described on Schedule 8, and (iii) any other entity which has characteristics (as to, among other things, reputation, financial viability and experience) similar to those entities listed on said Schedule, as reasonably determined by Tenant, and is not, at the time of the making of the Permitted Leasehold Mortgage, in Landlord’s reasonable judgment, in competition with Landlord.

1.70 Person. The term “Person” means any association, bank, business trust, corporation, estate, general partnership, Government, individual, joint stock company, joint venture, labor union, limited liability company, limited partnership, non-profit corporation, professional association, professional corporation, trust or any other organization of any type or person.

1.71 Personal Property. The term “Personal Property” means all Trade Equipment as well as supplies and inventory, books and records, intangibles, and any and all other items of personal property located at the Premises, except, in all cases, those which are owned by a Third Party Lessor. Under no circumstances shall the term “Personal Property” be deemed to include any of the USTs, for which separate provision is made under this Restated Lease.

1.72 Personal Property Letter. The term “Personal Property Letter” means that certain letter agreement, dated as of the date hereof, between Landlord and Tenant relating to the ownership of Personal Property located on the Premises.

1.73 Petroleum Terminal Properties. The term “Petroleum Terminal Properties” means those Properties which are terminals for the storage and distribution of petroleum products either owned or leased by Landlord or one of its Affiliates and/or Subsidiaries. As of the date hereof, the Petroleum Terminal Properties are as set forth on Exhibit J.

1.74 Post-Reorganization Leases. The term “Post-Reorganization Leases” means the 1998 Master Lease, the April 1999 Master Lease, and the September 1999 Master Lease.

1.75 Power Test Lease. The term “Power Test Lease” means a lease between the Power Test Lessor, as landlord, and Landlord, as tenant, for a Property, as such lease has been amended as of the date hereof. As used in this definition, the term “Landlord” shall be deemed to include any Affiliate and/or Subsidiary of Landlord that is the tenant under any Power Test Lease. The term “Power Test Leases” shall have the correlative plural meaning.

1.76 Power Test Lease Estoppel Certificate. The term “Power Test Lease Estoppel Certificate” means a statement in writing containing all of the following statements (identifying in reasonable detail any exceptions that may exist at the time), as requested by Tenant: (a) the Power Test Leases have not been amended or modified, constitute the entire agreement between the Power Test Lessor and Landlord (which term “Landlord” shall be deemed to include any Affiliate and/or Subsidiary of Landlord that is the tenant under any Power Test Lease for the purposes of this definition) relating to the Properties subject to the Power Test Leases and are in full force and effect (or, if there have been amendments or modifications, that the Power Test Leases as so amended or modified are in full force and effect and stating such amendments or modifications); (b) neither the Power Test Lessor nor Landlord is in material default under the Power Test Leases and, to the best of the Power Test Lessor’s knowledge, no facts or circumstances exist that, with the passage of time or the giving of notice or both, would constitute material defaults under the Power Test Leases by the Power Test Lessor or Landlord (or, if there have been any material defaults or potential material defaults, specifying the nature of any such material default or potential material default); (c) Landlord has paid all rent to date; (d) any then-ascertainable date relevant to the Power Test Leases; and (e) such other matters as Tenant shall reasonably request.

1.77 Power Test Lessor. The term “Power Test Lessor” means Power Test Realty Company Limited Partnership and its successors and assigns, as lessor under the Power Test Leases.

1.78 Premises. The term “Premises” shall have the meaning set forth in the first Recital paragraph of this Restated Lease, except that the term “Premises” shall not be deemed to include any Property which may be deleted from this Restated Lease from time to time (a) pursuant to the express provisions of Article 13, 14, 15, 22 or 25 of this Restated Lease; or (b) by the mutual agreement of the parties hereto.

1.79 Prime Rate. The term “Prime Rate” means the prime rate or equivalent “base” or “reference” rate for corporate loans that, at Landlord’s election, by Notice to Tenant, is: (a) published from time to time in the Wall Street Journal; (b) announced from time to time by the commercial banking unit of the Chase Manhattan Corporation, New York, New York, or any other large United States “money center” commercial bank designated by Landlord; or (c) if such rate is no longer so published or announced, then a reasonably equivalent rate published by an authoritative third party designated by Landlord. Notwithstanding anything to the contrary in this Section, the Prime Rate shall never exceed the highest rate of interest legally permitted to be

charged in transactions of the character of this Restated Lease between parties of a character similar to Landlord and Tenant.

1.80 Prohibited Liens. The term “Prohibited Lien” means any mechanic’s, vendor’s, laborer’s or material supplier’s statutory lien or other similar lien arising by reason of work, labor, services, equipment or materials supplied, or claimed to have been supplied, to Tenant, which lien either: (a) is filed against the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor or (b) is filed against the Leasehold Estate and, upon termination of this Restated Lease, would under the Law of the State attach to the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor. Notwithstanding anything to the contrary in this Restated Lease, an Equipment Lien shall not constitute a Prohibited Lien and nothing in this Restated Lease shall prohibit Tenant and/or Subtenant from creating, or require Tenant and/or Subtenant, as the case may be, to remove, any Equipment Lien except upon termination of this Restated Lease.

1.81 Property. The term “Property” shall have the meaning set forth in the first Recital paragraph of this Restated Lease, except that the term “Property” shall not be deemed to include any property which may be deleted from this Restated Lease from time to time (a) pursuant to the express provisions of Article 13, 14, 15, 22 or 25 or (b) by the mutual agreement of the parties hereto. The term “Properties” shall have the correlative plural meaning.

1.82 Real Estate Taxes. The term “Real Estate Taxes” means all taxes and special and general assessments that may be assessed, levied, confirmed, imposed or become a lien on any Property (other than on account of any actions or omissions of Landlord, a Third Party Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor or conditions existing on, at or with respect to any such Property before the applicable Commencement Date) by or for the benefit of any Government with respect to any period during the Term, together with any taxes, assessments and occupancy taxes that may be levied, assessed or imposed by any Government in lieu of or as a substitute, in whole or in part, for any of the foregoing. Notwithstanding the foregoing, all such items referred to above which are the obligation of a lessee under a Third Party Lease, the Leemilt’s Lease, the Gettymart Lease, and a Power Test Lease (except to the extent, if any, such item is included as Fixed Rent hereunder) are also “Real Estate Taxes.” The term “Real Estate Taxes” shall, however, not include any of the following, all of which Landlord shall pay before delinquent or payable only with a penalty: (a) any franchise, income, excess profits, estate, inheritance, succession, transfer, gift, corporation, business, capital levy, or profits tax, or license fee (other than a license fee imposed with respect to any Property or the Improvements thereon the maintenance of which is Tenant’s responsibility pursuant to the terms of this Restated Lease) of Landlord, (b) the incremental portion of any of the items listed in this Section that would not have been levied, imposed or assessed but for any sale or other direct or indirect transfer of the Fee Estate or of any interest in Landlord during the Term, (c) any charges that would not have been payable but for any act or omission of Landlord or conditions existing on, at or with respect to any Property before the applicable Commencement Date, (d) any charges that are levied, assessed or imposed against any Property during the Term based on the recapture or reversal of any

previous tax abatement or tax subsidy, or compensating for any previous tax deferral or reduced assessment or valuation, or based on a miscalculation or misdetermination of any charge(s) of any kind imposed or assessed with respect to the Premises, relating to any period(s) before the applicable Commencement Date, and (e) interest, penalties and other charges with respect to items “a” through “d.”

1.83 Realty Parent. The term “Realty Parent” means Getty Realty Corp., and its successors and assigns.

1.84 Remediate. The term “Remediate,” “Remediation,” and/or “Remediated” means those activities, including investigation, monitoring and, as necessary, cleaning up, removing, treating, covering or in any other way remediating Contamination in the environment at or emanating from any Property, including those Properties set forth on Schedule 2, Schedule 3 and Exhibit C so as to achieve Closure, but excluding the repair, removal or replacement of USTs, except as set forth in Section 7.6. The required levels of Remediation at any particular Property shall be limited solely to those limits in place by the applicable Government at the time of the Closure.

1.85 Renewal Option. The term “Renewal Option” means the right to renew this Restated Lease as provided in Section 2.1 hereof.

1.86 Rent. The term “Rent” means Fixed Rent and Additional Rent.

1.87 Restatement Effective Date. The term “Restatement Effective Date” means the initial acceptance for payment of shares of Company Common Stock (as defined in the Merger Agreement) pursuant to the Offer (as defined in the Merger Agreement).

1.81A Restatement Effective Time. The term “Restatement Effective Time” means the time which is two (2) hours prior to the time that the conditions referred to in the definition of Restatement Effective Date have been satisfied.

1.88 September 1999 Master Lease. The term “September 1999 Master Lease” means that certain Master Lease, dated September 30, 1999, between Landlord and Tenant.

1.89 Service Station Properties. The term “Service Station Properties” means Properties which are currently used to sell motor fuels or convenience store items or both, and in some instances are used for motor vehicle repairs and/or other services ancillary to the sale of motor fuels or convenience store items.

1.90 State. The term “State” means the State or Commonwealth where the Properties are located.

1.91 Sublease. The term “Sublease” means any sublease or sub-sublease of any Property or any part of any Property, or any other agreement or arrangement (including a license agreement, occupancy agreement or concession agreement) made by Tenant granting any third party the right to occupy, use or possess any Property or any portion of any Property, including, without limitation, those subleases between Tenant and lessee-dealers with respect to certain Service Station Properties. The term “Subleases” shall have the correlative plural meaning.

1.92 Subsidiary. The term “Subsidiary” means, with respect to any Person, any other Person (i) in which such Person owns directly, or indirectly through one or more subsidiaries, more than fifty percent (50%) of the voting or beneficial interest, or (ii) which such Person otherwise has the right or power to control (whether by contract, through ownership of securities or otherwise). The term “Subsidiaries” shall have the correlative plural meaning.

1.93 Substantial Casualty. The term “Substantial Casualty” means any Casualty that, in Tenant’s reasonable judgment, renders a Property unsuitable for the then current use of such Property at the time of the Casualty.

1.94 Substantial Condemnation. The term “Substantial Condemnation” means any Condemnation that, in Tenant’s reasonable judgment, renders the remaining portion of a Property unsuitable for the conduct of the then current use of the Property at the time of the Condemnation. Tenant may waive its right to treat as a Substantial Condemnation any Condemnation that would otherwise qualify as such.

1.95 Subtenant. The term “Subtenant” means any person having rights of occupancy, use or possession under a Sublease, and any concessionaires, occupants and licensees that Tenant elects to treat as Subtenants, including, without limitation, lessee-dealers subleasing any Service Station Property.

1.96 Temporary Condemnation. The term “Temporary Condemnation” means a Condemnation relating to the temporary right to use or occupy a Property or any part of a Property.

1.97 Tenant. The term “Tenant” means (a) for certain Service Station Properties located in the Mid-Hudson Valley, Kingston Oil Supply Corp. and for all other Service Station Properties, Getty Petroleum Marketing Inc. and (b) for certain Petroleum Terminal Properties located in the Mid-Hudson Valley, Kingston Oil Supply Corp. and for all other Petroleum Terminal Properties, Getty Terminals Corp., including, in all cases, any and all successors and assigns of such entities as may be permitted hereunder.

1.98 Tenant Improvements. The term “Tenant Improvements” means any and all Improvements constructed on any Property by Tenant at any time between the applicable Commencement Date with respect to such Property and the Restatement Effective Date and at any time during the Term.

1.99 Tenant’s Award. The term “Tenant’s Award” means, at any point in time, an amount equal to the then fair market value of the Leasehold Estate in the applicable Property (including the then fair market value of the rights of Tenant in and to any Improvements thereon), considered: (i) as if the Condemnation had not occurred; (ii) without adjusting for any expectation of the Condemnation; (iii) as if this Restated Lease had not terminated with respect to the applicable Property as of the effective date of the Condemnation; and (iv) taking into account the benefits and burdens of this Restated Lease, the remaining Term (as further defined in this definition), all Permitted Exceptions, and all other matters affecting such Leasehold Estate and its valuation. For the purposes of calculating “Tenant’s Award,” the term of this Restated Lease

shall include only those Renewal Terms for which Tenant had previously exercised its Renewal Option in accordance with the provisions of this Restated Lease. “Tenant’s Award” shall be determined independently of, and without regard to, any valuation of the Leasehold Estate established in any Condemnation proceeding.

1.100 Tenant’s Condemnation Share. The term “Tenant’s Condemnation Share” means the following fraction:

Tenant’s Award

The sum of Tenant’s Award and
Landlord’s Award

1.101 Termination Date. The term “Termination Date” means the date when this Restated Lease terminates or expires (i) for the Premises, whether pursuant to the expiration of the Term as provided for in this Restated Lease or pursuant to Landlord’s exercise of remedies upon occurrence of a Material Monetary Event of Default or (ii) for any Property, (a) pursuant to the express provisions of Article 13, 14, 15, 22 or 25 of this Restated Lease or (b) by the mutual agreement of the parties hereto to delete such individual Property from this Restated Lease.

1.102 Third Party Lease. The term “Third Party Lease” means a lease between a Third Party Lessor, as landlord and Landlord, or an Affiliate and/or Subsidiary of Landlord, as tenant, for any Property. The Power Test Lease, the Leemilt’s Lease, and the Gettymart Lease are not Third Party Leases for any purpose hereunder.

1.103 Third Party Lease Estoppel Certificate. The term “Third Party Lease Estoppel Certificate” means a statement in writing containing all of the following statements (identifying in reasonable detail any exceptions that may exist at the time), as requested by Tenant: (a) the applicable Third Party Lease has not been amended or modified, constitutes the entire agreement between the Third Party Lessor and Landlord relating to the Property subject to such Third Party Lease and is in full force and effect (or, if there have been amendments or modifications, that such Third Party Lease as so amended or modified is in full force and effect and stating such amendments or modifications); (b) neither the Third Party Lessor nor Landlord is in default under such Third Party Lease and, to the best of the Third Party Lessor’s knowledge, no facts or circumstances exist that, with the passage of time or the giving of notice or both, would constitute a default under the Third Party Lease by the Third Party Lessor or Landlord (or, if there have been any defaults or potential defaults, specifying the nature of any such default or potential default); (c) Landlord has paid all rent to date; (d) any then-ascertainable date relevant to the Third Party Lease; and (e) such other matters as Tenant shall reasonably request.

1.104 Third Party Lease Spread. The term “Third Party Lease Spread” means an amount equal to the difference between (a) the Original Term Rent Allocation (as defined in Section 22.2.2) with respect to a Property subject to a Third Party Lease and (b) the rental due and payable by Landlord to the Third Party Lessor of such Property immediately prior to the expiration of the term of such Third Party Lease.

1.105 Third Party Lease Renewal Option. The term “Third Party Lease Renewal Option” means any right to extend and renew a Third Party Lease for a renewal term.

1.106 Third Party Lessor. The term “Third Party Lessor” means a Person who owns a Property and leases it to Landlord or an Affiliate and/or Subsidiary of Landlord.

1.107 Trade Equipment. The term “Trade Equipment” means all furniture, furnishings, trade fixtures and equipment installed or used on the Premises by Tenant or any Subtenant from time to time during the Term, other than those which may be owned by a Third Party Lessor.

1.108 Transfer Tax Agreement. The term “Transfer Tax Agreement” means that certain Tax Indemnity Agreement between Landlord and Tenant dated as of the date hereof.

1.109 Unavoidable Delay. The term “Unavoidable Delay” means a delay in the performance of any obligation under this Restated Lease (excluding in any case any obligation to pay money) arising from or on account of any cause whatsoever beyond the reasonable control of the person required to perform, including strikes, labor troubles, litigation, Casualty, Condemnation, accidents, Laws, governmental preemption, war, riots, and other causes beyond such party’s reasonable control, whether similar to or dissimilar to the causes specifically enumerated in this Section. In no event shall Unavoidable Delay be deemed to include any delay caused by a Person’s financial condition.

1.110 Uneconomic. The term “Uneconomic” means the cost to cure an Eligible Legal Violation is not economically practicable, given the business being conducted at a particular Property and the cost of curing such violation.

1.111 Use Restriction Event. The term “Use Restriction Event” means, with respect to a Property, the date when, (a) as a result of the enactment of a final, non-appealable change in Law, the use of such Property as of the Restatement Effective Date as a Service Station Property or a Petroleum Terminal Property, as applicable, is no longer permitted; (b) as a result of any non-appealable action by the Government, Tenant is no longer able to use the Property for its use as of the Restatement Effective Date, provided that (i) such action by the Government did not result, either directly or indirectly, from the acts or omissions of Tenant, Subtenant or their respective agents, contractors, employees, licensees or invitees, (ii) such action of the Government was not a Law enforcement or violation related action and was more in the nature of a change in zoning or a Condemnation-like action, and (iii) such action of the Government was unrelated to Environmental Laws; or (c) as a result of any non-appealable or unappealable (by Landlord or Tenant) action by Government access to such Property is materially denied to Tenant or Tenant’s customers or invitees. Anything contained in the foregoing sentence to the contrary notwithstanding, a “Use Restriction Event” shall not be deemed to occur in the event that the use of any such Property as of the Restatement Effective Date is or becomes a permissible non-conforming use under applicable Law such that Tenant is not permitted to rebuild or reconstruct such Property for its current use as of the Restatement Effective Date after the occurrence of a Casualty or Condemnation.

1.112 UST. The term “UST” means an underground storage tank including related piping, underground pumps, wiring and their monitoring devices. The term “USTs” shall have the correlative plural meaning.

1.113 UST Upgrade. The term “UST Upgrade” means the replacing, upgrading or closure of UST systems (tanks and connective piping) in accordance with 40 C.F.R. Part 280 or similar Government requirements in effect on the Commencement Date of the 1997 Master Lease.

1.114 Waiver of Subrogation. The term “Waiver of Subrogation” means a provision in, or endorsement to, any insurance policy required by this Restated Lease, by which the insurance carrier agrees to waive all rights of recovery by way of subrogation against either party to this Restated Lease in connection with any loss covered by such insurance policy.

2. TERM.

2.1 Initial Term and Renewal Term(s). The initial term of this Restated Lease (the “Initial Term”) shall commence on the Restatement Effective Date. The Initial Term shall end immediately prior to the fifteenth (15th) anniversary of the Restatement Effective Date. Except as provided or otherwise set forth to the contrary in Article 22, Tenant shall have the absolute and unconditional right and option (each such right and option, a “Renewal Option”) to extend and renew this Restated Lease as to all but not less than all of the Properties then demised by this Restated Lease at the time of such extension and renewal upon the same terms and conditions (except to the extent Rent may be adjusted as required hereunder) as this Restated Lease, for four (4) additional successive periods, with the first three (3) being of ten (10) years each and the last one being of three (3) years and ten (10) months (each such renewal period, a “Renewal Term”) following expiration of the Initial Term. Tenant shall exercise each Renewal Option, if at all, by giving Landlord Notice thereof (in compliance with this Restated Lease) at least thirteen (13) months before the first day of the corresponding Renewal Term. Wherever this Restated Lease refers to the “Term,” such reference means the Initial Term as extended from time to time, pursuant to Tenant’s Renewal Option(s), to include one or more Renewal Term(s), so that upon Tenant’s exercise of any Renewal Option(s), the “Term” shall include the corresponding Renewal Term. At the expiration or termination of the final Renewal Term provided for below, Tenant shall have no further rights to renew or extend this Restated Lease. The Renewal Options and Renewal Terms are as follows:


	2.1.1 First Renewal Term. The “First Renewal Term” shall be for a period of ten (10) years beginning on the fifteenth (15th) anniversary of the Restatement Effective Date and ending immediately prior to the twenty-fifth (25th) anniversary of the Restatement Effective Date.

	2.1.2 Second Renewal Term. The second Renewal Term shall be for a period of ten (10) years beginning on the twenty-fifth (25th) anniversary of the Restatement Effective Date and ending immediately prior to the thirty-fifth (35th) anniversary of the Restatement Effective Date.


	2.1.3 Third Renewal Term. The third Renewal Term shall be for a period of ten (10) years beginning on the thirty-fifth (35th) anniversary of the Restatement Effective Date and ending immediately prior to the forty-fifth (45th) anniversary of the Restatement Effective Date.

	2.1.4 Fourth Renewal Term. The fourth and final Renewal Term shall be for a period of three (3) years and ten (10) months, beginning on the forty-fifth (45th) anniversary of the Restatement Effective Date and ending immediately prior to the forty-eighth (48th) and ten (10) month anniversary of the Restatement Effective Date.

2.2 Default by Tenant. Provided only that this Restated Lease has not been terminated and that no uncured Material Monetary Event of Default then exists hereunder, there shall be no conditions (express or implied) to Tenant’s exercise of any Renewal Option(s) for the Premises (except as set forth in Article 22 at it pertains to Third Party Leases).

2.3 Title to Tenant Improvements and Personal Property. Notwithstanding anything to the contrary in this Restated Lease, all Tenant Improvements and all Personal Property owned by Tenant located in, on or at any Property or otherwise constituting part of the Premises shall at all times during the Term be owned by, and shall belong to, Tenant. All the benefits and burdens of ownership of the foregoing shall be and remain in Tenant during the Term.

3. RENT.

3.1 Fixed Rent. Throughout the Initial Term and all Renewal Terms, Tenant shall pay Landlord, without notice or demand, in lawful money of the United States of America, at Landlord’s office or as Landlord shall otherwise designate, a net annual rental (the “Fixed Rent”) as follows:


	3.1.1 Calculation of Fixed Rent. During the first Lease Year, Fixed Rent shall be $57,729,216 (or $4,810,768 per month), as adjusted pursuant to this Article. The Fixed Rent during the Initial Term and all Renewal Terms shall be adjusted in accordance with the Fixed Rent Adjustment Procedures at the time that any Property may be deleted from this Restated Lease (a) pursuant to the express provisions of Article 13, 14, 15, 22 or 25 of this Restated Lease; or (b) by the mutual agreement of the parties hereto.

	3.1.2 Rent Escalations. At the beginning of each Lease Year commencing after the first Lease Year, the Fixed Rent for such Lease Year shall be increased by an amount equal to two percent (2%) of the Fixed Rent in effect at the end of the immediately preceding Lease Year, after giving effect to any adjustment to such Fixed Rent required under Section 3.1.1.

3.2 Payment; Proration; Etc. Tenant shall pay Fixed Rent in equal monthly installments in advance on the first day of each month. Rent for partial months at the beginning or

end of the Term shall be prorated based on the number of days in such month within the Term divided by the total number of days in the entire month. Tenant shall pay all Rent payable to Landlord by wire transfer of currently available federal funds to Landlord’s bank account as designated by Landlord.

3.3 Additional Rent. In addition to Fixed Rent, Tenant shall pay Landlord, as additional rent under this Restated Lease, all Additional Rent within twenty (20) days after receipt of invoice therefor or as otherwise set forth in Article 4.

3.4 No Allocation to Personal Property; Allocation to Royalty Fee. None of the Rent provided for under this Restated Lease is allocable to any personal property included in the Premises. Notwithstanding anything to the contrary contained herein or in the License Agreement, a sum equal to Two Million Dollars ($2,000,000) (as escalated pursuant to the provisions of Section 3.1.2 above) of the Fixed Rent payable hereunder per Lease Year shall be deemed to constitute payment for the granting by Landlord to Tenant of an exclusive license to use the Licensed Marks (as defined in the License Agreement) on the terms and conditions set forth in the License Agreement (such annual payment being referred to herein as the “Royalty Fee”). Notwithstanding the foregoing, if the License Agreement terminates for any reason during the Term, then the amount of Fixed Rent payable hereunder per annum shall be deemed to be increased by an amount equal to the Royalty Fee that would have been payable had the License Agreement not terminated. The net effect of the foregoing is that the amount paid by Tenant to Landlord under Section 3.1 shall not be affected by the termination of the License Agreement.

3.5 Offsets. Except as specifically provided in Section 31.1 hereof and except as provided below, Tenant shall pay all Rent without offset, defense, claim, counterclaim, reduction, deduction, or exercise of recoupment rights of any kind whatsoever. Notwithstanding anything to the contrary in this Restated Lease, Tenant shall be entitled to offset against Rent an amount equal to any of the following obligations required to be performed by Landlord (a) except as otherwise provided in clause (b), to the extent Landlord fails to perform any such obligation within thirty (30) days after Tenant shall have delivered to Landlord a Notice describing such failure in reasonable detail; or (b) in the case of a failure that cannot with due diligence be cured within thirty (30) days from such Notice, to the extent that Landlord does not (x) within 30 days from Tenant’s Notice advise Tenant of Landlord’s intention to take all reasonable steps necessary to remedy such failure, (y) duly commence the cure of such failure within such period, and then diligently prosecute to completion the remedy of such failure and (z) complete such remedy within a reasonable time under the circumstances.


	3.5.1 Landlord’s UST Upgrade obligation pursuant to Section 7.6 at the Properties set forth in Schedule 2, to the extent Tenant is required to expend monies therefor;

	3.5.2 Landlord’s obligation pursuant to Section 9.1 with respect to (a) the ongoing Remediation at the Properties set forth on Schedule 3 and (b) any Remediation required as a result of any Contamination resulting from UST Upgrades at the Properties set forth on Schedule 2 and Exhibit C, to the extent Tenant is required to expend monies therefor; and


	3.5.3 Landlord’s obligation pursuant to the Environmental Agreement, to the extent Tenant is required to expend monies therefor.

Notwithstanding anything to the contrary contained herein or in the Environmental Agreement, if, at any time after the date hereof, UST Upgrade or Closure has been completed, as applicable, with respect to any Property set forth on Schedule 2, Exhibit C or Schedule 3 by Landlord as required under this Restated Lease, Tenant shall have no right to any offset against Rent with respect to any such Property from and after the date on which such UST Upgrade or Closure has been completed, as applicable, with respect to such Property. In the event that Tenant elects to offset any amount against Rent in accordance with this Section 3.5 or Section 31.1, Tenant shall give Landlord Notice of such election to offset at least twenty (20) days prior to effecting the same, which Notice shall include the amount that Tenant plans to offset and the timing of such offset.

4. ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS.

4.1 Landlord’s Net Return. The parties intend that this Restated Lease shall constitute a “net lease,” so that the Rent shall provide Landlord with “net” return for the Term, free of any expenses or charges with respect to the Premises, except as specifically provided in this Restated Lease. Accordingly, except as specifically set forth to the contrary in this Restated Lease, the Environmental Agreement or the Transfer Tax Agreement, Tenant shall pay as Additional Rent and discharge, before failure to pay the same shall create a material risk of forfeiture or give rise to a penalty, each and every item of expense, of every kind and nature whatsoever, related to or arising from the Premises, or by reason of or in any manner connected with or arising from the development, leasing, operation, management, maintenance, repair, use or occupancy of the Premises or any Property or any portion thereof. Notwithstanding anything to the contrary in this Restated Lease, Tenant shall not be required to pay any of the following incurred by Landlord: (a) principal, interest, or other charges payable under any Fee Mortgage; (b) depreciation, amortization, brokerage commissions, financing or refinancing costs, management fees or leasing expenses incurred by Landlord with respect to any Property; (c) consulting, overhead, travel, legal, staff, and other similar costs incidental to Landlord’s ownership of its fee or leasehold interest in any Property, other than Legal Costs that Tenant has expressly agreed to pay; (d) any costs arising from or pursuant to any instrument or agreement affecting any Property that is not a Permitted Exception and to which Landlord is a party and Tenant is not a party; and (e) the obligations of Landlord set forth in Section 7.6 and Section 9.1 of this Restated Lease, in the Environmental Agreement, or in the Transfer Tax Agreement.

4.2 Impositions. Subject to Tenant’s right to contest set forth in Section 11.1, for any period within the Term (with daily prorations for periods partially within the Term and partially outside the Term), Tenant shall pay and discharge all Real Estate Taxes pursuant to the procedures set forth in Section 4.4 or Section 4.5 and shall pay and discharge, before failure to pay the same shall create a material risk of forfeiture or give rise to a penalty, all other Impositions. Tenant shall pay all interest and penalties assessed by any Government on account of late payment of any Real Estate Taxes, unless such late payment was caused by (a) Landlord’s failure to promptly forward to Tenant or Depository, as applicable, a copy of any tax or other bill related to any such Real Estate Tax received by Landlord or (b) Landlord’s failure to timely pay

any such Real Estate Tax after it has timely received Tenant’s or Depository’s payment with respect thereto as provided in Section 4.4 or 4.5, in which case Landlord shall pay such interest and penalties. Except as otherwise provided herein, Tenant shall also pay interest and penalties assessed by any Government on account of late payment of any other Imposition (paid to Landlord by Tenant), except late payment caused by Landlord’s failure to remit any such Imposition in accordance with Tenant’s reasonable instructions or Landlord’s failure to promptly forward Tenant a copy of any tax or other bill related to any such Imposition received by Landlord, in which case Landlord shall pay such interest and penalties. Tenant shall within a reasonable time after Notice from Landlord provide Landlord with reasonable proof that Tenant has paid or escrowed, as applicable, any Imposition(s) that this Restated Lease requires Tenant to have paid or escrowed, as applicable. Landlord shall be entitled to any refund of any Impositions (and penalties and interest paid by Landlord) and interest earned thereon to the extent such Imposition was due and payable prior to the applicable Commencement Date based on Landlord’s prior overpayment of such Imposition, and Tenant shall remit to Landlord any amounts received by Tenant on account of such overpayment promptly upon receipt of the same. Tenant shall be entitled to any refund of any Impositions (and penalties and interest paid by Tenant) and interest earned thereon to the extent such Imposition was due and payable on or after the applicable Commencement Date based upon Tenant’s prior overpayment of such Imposition, whether such refund is made during or after the Term, and Landlord shall remit to Tenant any amounts received by Landlord on account of such overpayment promptly upon receipt of the same.

4.3 Assessments in Installments. To the extent that it may be permitted by applicable Law and by the applicable Third Party Lease, Tenant shall have the right to apply for conversion of any Imposition to cause it to be payable in installments. After any such conversion, Tenant shall pay and discharge only such installments of any such Impositions as shall become due and payable during the Term, provided that any payment relating to periods prior to the expiration of this Restated Lease shall be paid prior to the Termination Date.

4.4 Deposits for Real Estate Taxes.

4.4.1 Advanced Real Estate Tax Payments. Due to the number of properties demised by this Restated Lease, Real Estate Taxes will be due and payable with respect to at least one Property during each calendar month of each Lease Year. In order to assure the timely payment of all Real Estate Taxes, Tenant shall deposit with Landlord on the first day of each calendar month during the Term a sum equal to the amount of Real Estate Taxes due and payable in the next calendar month (such sum being referred to hereinafter as the “Monthly Tax Payment”). The amount of each Monthly Tax Payment shall be determined by reference to the Monthly Tax Payment for the corresponding calendar month of the previous Lease Year, as adjusted to reflect any reassessment, tax increase or change of due date therefor of which Tenant has received Notice from Landlord at least twenty (20) days prior to the date on which such Monthly Tax Payment is due and payable. For the first Lease Year, the amount of Monthly Tax Payment shall be determined by reference to Schedule 10, as adjusted to reflect any reassessment, tax increase or change of due date therefor of which Tenant has received Notice from Landlord at least twenty (20) days prior to the date on which


	such Monthly Tax Payment is due. In addition, on or prior to the Restatement Effective Date, Tenant shall deposit with the Landlord a sum of money equal to the amount of Real Estate Taxes due in the calendar month in which the Restatement Effective Date occurs and the following calendar month, as determined by reference to Schedule 10, as adjusted to reflect any reassessment, tax increase or change of due date therefor of which Tenant has received Notice from Landlord at least twenty (20) days prior to the Restatement Effective Date. Notwithstanding the foregoing, if Tenant does not receive any Notice of adjustment from Landlord with respect to a Monthly Tax Payment referred to in this Section at least twenty (20) days prior to the date on which such Monthly Tax Payment is due, then Tenant shall, within twenty (20) days after receipt of such Notice of adjustment from Landlord, deposit with Landlord such additional funds as may be required under such Notice. By way of example, if the Restatement Effective Date occurs on January 12, 2001, then Tenant shall deposit with Landlord on such date an amount equal to the Real Estate Taxes due during the months of January and February of such year, as determined by reference to Schedule 10, as adjusted pursuant to the preceding provisions. On February 1, 2001, Tenant shall deposit with Landlord an amount equal to the Real Estate Taxes due in the month of March of such year, as so adjusted, and so on throughout the Term of this Restated Lease. Notwithstanding the foregoing or anything else to the contrary contained herein, if the funds deposited pursuant to the preceding provisions are insufficient to pay any Real Estate Tax at least twenty (20) days before such Real Estate Tax is due and payable without penalty or interest, Tenant shall, within twenty (20) days after receipt of demand therefor from Landlord, deposit with Landlord such additional funds as may be necessary to pay any such Real Estate Tax in full. If the Monthly Tax Payment so deposited pursuant to this Section exceeds the amount required to pay the Real Estate Taxes due and payable for any month, the excess shall be credited against the Monthly Tax Payment next due and payable.

	4.4.2 Expiration or Termination. Notwithstanding anything to the contrary contained in Section 4.4.1, if this Restated Lease shall expire before any credit referred to in Section 4.4.1 shall have been fully applied, Landlord (a) shall retain an amount sufficient to pay unpaid Real Estate Taxes to the extent such Real Estate Taxes accrue with respect to any period of time during the Term and (b) shall refund to Tenant the balance of such credit within thirty (30) days after the end of the Term. Notwithstanding the foregoing, if this Restated Lease shall have terminated as a result of a Material Monetary Event of Default, then all amounts held by Landlord pursuant to this Section 4.4 shall belong to Landlord, which amounts shall be used by Landlord only to pay Real Estate Taxes that would have accrued if this Restated Lease had not terminated as a result of such Material Monetary Event of Default. If a Property is deleted from this Restated Lease pursuant to the express terms of this Lease (a) pursuant to the express provisions of Article 13, 14, 15, 22 or 25; or (b) by the mutual agreement of the parties hereto, then the amount required to be deposited by Tenant pursuant to this


	Section 4.4 shall thereupon be reduced by an amount equal to the Real Estate Taxes attributable to the Property so deleted, but Tenant shall remain liable for all such Real Estate Taxes which accrued prior to the date of such deletion.

4.5 Leasehold Mortgage Real Estate Tax Deposits. Anything contained in the foregoing provisions of this Article notwithstanding, if any procedures with respect to deposits for Real Estate Taxes set forth in a Permitted Leasehold Mortgage shall be inconsistent with any of the procedures set forth in this Article or if such Permitted Leasehold Mortgage requires the establishment of a traditional tax escrow whereby Tenant pays into such escrow an amount equal to one-twelfth of the Real Estate Taxes due in a particular Lease Year on a monthly basis, then, to such extent, the procedures set forth in such Permitted Leasehold Mortgage shall take precedence over, and shall be in lieu of, the inconsistent procedures set forth in this Restated Lease, except as otherwise set forth in this Section. Any such Permitted Leasehold Mortgage may provide that deposits for Real Estate Taxes shall be paid by Tenant to either (a) Landlord or (b) Depository. In order for deposits for Real Estate Taxes to be paid by Tenant to Depository, Depository must have previously entered into a depository agreement with Landlord pursuant to which Depository agrees (i) to hold all amounts deposited with Depository pursuant to this Section 4.5 in a segregated, interest-bearing escrow account (which interest may be distributed to Tenant on a quarterly basis, provided that no uncured Material Monetary Event of Default then exists hereunder) in the name of Tenant (so as not to be considered an asset of Depository) for the sole purpose of paying the Real Estate Taxes for which such amounts shall have been deposited as the same become due; (ii) to remit to Landlord the aforesaid deposits for such purpose not later than twenty (20) days prior to the last day on which such Real Estate Taxes may be paid without penalty or interest; (iii) that in no event shall any amount deposited with Depository hereunder be deemed to constitute additional security for any amounts that may be owed by Tenant or any Affiliate or Subsidiary of Tenant to Leasehold Mortgagee or any Affiliate or Subsidiary of Leasehold Mortgagee or any other Person, (iv) to otherwise be bound by the provisions of this Restated Lease, including, without limitation, this Section 4.5. Notwithstanding clause (ii) of the foregoing sentence, such Permitted Leasehold Mortgage may provide that Depository will pay Real Estate Taxes directly to the appropriate taxing authority rather than remitting the same to Landlord pursuant to this Section 4.5. If such Permitted Leasehold Mortgage provides that Depository will pay Real Estate Taxes directly to the appropriate taxing authority, then Tenant shall (x) use commercially reasonable efforts to obtain and furnish to Landlord proof, reasonably satisfactory to Landlord, of payment by Depository of Real Estate Taxes and (y) furnish to Landlord copies of any checks that Tenant sends to Depository on account of Real Estate Taxes or other evidence of payment thereof, except to the extent that a lockbox or similar arrangement is then in effect such that such amounts are automatically deposited with Depository.

4.6 Direct Payment by Landlord. If any Imposition or other item of Rent is required to be paid directly by Landlord, then Landlord shall appoint as Landlord’s attorney in fact (1) Depository for the purpose of making any such payment of Real Estate Taxes if Depository is entitled to make such payments directly pursuant to the provisions of Section 4.5, and (2) Tenant for the purpose of making any such payment of any other Imposition or other item of Rent. Notwithstanding the foregoing, if the person entitled to receive such payment refuses to accept it from Depository or Tenant, as applicable, then Depository or Tenant, as applicable, shall give Landlord Notice of such fact and shall remit payment of such Imposition or other item of

Rent to Landlord in a timely manner accompanied by reasonable instructions as to the further remittance of such payment. Landlord shall with reasonable promptness comply with the Depository’s or Tenant’s, as applicable, reasonable instructions and shall Indemnify Depository or Tenant, as applicable, against Landlord’s failure to do so.

4.7 Tax Lots. In the event that any Property does not constitute a single parcel separate and apart from any other land for the purpose of Real Estate Taxes, Landlord shall use its reasonable best efforts to allocate such Real Estate Taxes on an equitable basis between or among the occupants or users of the parcel that contains such Property, unless such allocation has been made by a Third Party Lessor.

4.8 Utilities. Tenant shall pay all fuel, gas, light, power, water, sewage, garbage disposal, telephone and other utility charges, and the expenses of installation, maintenance, use and service in connection with the foregoing, relating to the Premises during the Term.

5. USE.

Tenant may use each Property demised hereunder for a gasoline service station/convenience store, for the storage and distribution of petroleum products, and/or for any other lawful purpose, including without limitation, any use that may exist on any such Property as of the Restatement Effective Date, subject to any restrictions contained in a Third Party Lease. In using the Premises, Tenant shall comply, in all material respects, with all restrictions and mandates set forth in the Permitted Exceptions and the Third Party Leases, where applicable. Notwithstanding the foregoing, to the extent that any failure to fully comply in all respects with a restriction or mandate set forth in a Third Party Lease would cause a default to occur under such Third Party Lease, Tenant shall fully comply with such restriction or mandate, except as specifically provided in Section 25.2. Tenant shall not have any obligation to actually operate any Property or otherwise conduct business of any nature thereon, and Tenant may discontinue operation of any Property at any time or from time to time, except as may be required under a Third Party Lease. Landlord shall in no event declare that Tenant has committed a Default under this Article of this Restated Lease by reason of Tenant continuing to use such Property in the same manner as such Property is being used on the Restatement Effective Date. Notwithstanding the foregoing, nothing contained herein shall be deemed to in any way affect Landlord’s right to declare that Tenant has committed a Default hereunder to the extent that, as a result of a change in Law subsequent to the Restatement Effective Date, Tenant’s then current use of any Property becomes unlawful, and Tenant continues to operate such Property for such use after such change in Law becomes effective.

6. COMPLIANCE WITH LAW.

Except as otherwise expressly set forth in Section 7.6, Section 9.1, Article 25 and the Environmental Agreement, Tenant shall during the Term, at Tenant’s expense: (a) observe and comply with all Laws affecting each Property in all material respects; (b) procure every material permit, license, certificate or other authorization required in connection with the lawful and proper maintenance, operation, use and occupancy of each Property or required in connection

with any Construction Work or Improvements erected thereon; and (c) comply with all such permits, licenses, certificates and other authorizations in all material respects. Notwithstanding the foregoing, Tenant shall have the right to contest any such Laws in accordance with this Restated Lease.

7. MAINTENANCE AND ALTERATIONS.

7.1 Obligation to Maintain. During the Term, Tenant shall, except as otherwise expressly provided in this Restated Lease, keep and maintain the Premises and each Property in good order, condition and repair in all material respects, subject to Casualty and Condemnation (governed by separate applicable provisions of this Restated Lease), reasonable wear and tear, and any other conditions that this Restated Lease does not require Tenant to repair. Tenant’s obligations to maintain the Premises in the manner set forth in the preceding sentence shall extend to all repairs that any Property (including plumbing, heating, air conditioning, ventilating, electrical, lighting, walls, roof, foundations, ceilings, floors, windows, doors, plate glass, skylights, landscaping, driveways, parking lots, fences and signs located in, on or at such Property, together with any sidewalks adjacent to such Property) may require from time to time during the Term, whether structural or nonstructural, foreseen or unforeseen, including such repairs as may be required by conditions in existence at the Commencement Date, except as otherwise provided in the Environmental Agreement and in Section 25.2, and those Tenant is obligated to perform under Section 7.6.

7.2 Tenant’s Right to Perform Alterations. Tenant shall have the right, at Tenant’s sole cost and expense and subject to the provisions of any Third Party Lease, at any time and from time to time during the Term of this Restated Lease, to construct, alter, repair, remodel and/or replace any and all Improvements on any Property and to demolish, raze or otherwise remove the same, provided that, unless Landlord consents, which consent shall not be unreasonably withheld, conditioned or delayed, Tenant shall be obligated to rebuild Improvements at such Property (a) at least equal in value to the amortized or depreciated cost of the Improvements so demolished, razed, or removed, as such amortized or depreciated cost is set forth on the most recent financial statements of Landlord then available; and (b) of the same type, nature and quality as those that have been demolished, removed, or razed, unless Tenant’s decision to rebuild on such Property Improvements of a different type, nature or quality is commercially reasonable under the circumstances. Except as provided in the immediately preceding sentence, Tenant shall not be obligated to re-erect any outbuildings, recreational facilities, service buildings, maintenance sheds or the like which are not material to the use and operation of such Property. All Tenant Improvements shall be and remain the property of Tenant throughout the Term and Tenant shall retain all rights to depreciation and/or amortization deductions and tax credits arising from ownership thereof. Such Tenant Improvements (subject to the reversionary interest of Landlord, the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor and/or the Third Party Lessors therein) shall be considered a part of Tenant’s Leasehold Estate for purposes of Articles 13 and 14. However, upon the Termination Date, title to such Tenant Improvements shall be deemed to be and become part of the realty and the sole and absolute property of Landlord (or the applicable Third Party Lessor, the Power Test Lessor, the Leemilt’s Lessor, or the Gettymart Lessor, as the case may be) as of the Termination Date and shall be surrendered to Landlord at that time, free and clear of the liens of mortgages, deeds of

trust, liens of mechanics, laborers or materialmen, and all other liens and encumbrances other than (a) any such liens and encumbrances incurred by Landlord arising from Landlord’s actions or the actions of any Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, and (b) any easements or similar rights burdening such Tenant Improvements the creation of which Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, shall have consented to in writing. Upon an early termination of this Restated Lease, if Leasehold Mortgagee exercises its right to obtain a new lease and obtains such new lease pursuant to the provisions of Section 26.6 hereof, then title to such Tenant Improvements shall not vest in Landlord if a new lease is given to a Permitted Leasehold Mortgagee (or its nominee or designee) as provided for in Section 26.6, but shall vest in Leasehold Mortgagee (or its nominee or designee), and its successors and assigns as tenant permitted hereunder, who shall have the right to depreciation and/or amortization deductions and tax credits arising from ownership of such Tenant Improvements but title to such Tenant Improvements shall vest in Landlord upon termination of such new lease. Tenant shall perform all Construction Work in a good, professional, safe, and workmanlike manner, using licensed and insured contractors and otherwise in compliance with Law.

7.3 Plans and Specifications. To the extent that Tenant performs or causes to be performed any Construction Work and obtains plans and specifications or surveys (including working plans and specifications and “as-built” plans and specifications and surveys) for such Construction Work, Tenant shall promptly upon Landlord’s request provide Landlord, for Landlord’s information only, with a true and complete copy of such plans and specification(s) or survey(s), subject to the terms of any agreement between Tenant and the applicable outside architect, engineer or surveyor. Tenant shall exercise reasonable efforts to cause its agreements with such outside professionals to permit the deliveries described in this Section.

7.4 Excavations. If an excavation shall be made (or authorized) upon land adjacent to the Land, then at Tenant’s election Tenant shall either: (a) afford to the person causing or authorized to cause such excavation, license to enter the applicable Property, in accordance with Tenant’s reasonable instructions, to perform such work as such person shall reasonably deem necessary or desirable, and as Tenant shall reasonably approve, to preserve and protect the applicable Property from injury or damage and to support the same by proper foundations, or (b) perform or cause to be performed, without cost or expense to Landlord in its capacity as Landlord under this Restated Lease, work of the nature described in clause (a) to the extent reasonably necessary under the circumstances. Tenant shall not, by reason of any excavations or work described in this Section, have any claim against Landlord in its capacity as Landlord under this Restated Lease for damages or for indemnity or for suspension, diminution, abatement or reduction of any Rent or any claim against the owner of any Fee Estate subject to a Third Party Lease or a Power Test Lease with respect to the same.

7.5 Cooperation by Landlord. Upon Tenant’s request, subject to the provisions of any Permitted Exception, or any Third Party Lease, Landlord shall, without cost to Landlord, promptly join in and execute and cause the Leemilt’s Lessor, the Power Test Lessor and the Gettymart Lessor to join in and execute (or assist Tenant in obtaining the requisite consent of a Third Party Lessor) any instruments including, but not limited to, applications for building permits, demolition permits, alteration permits, consents, zoning, rezoning or use

approvals, amendments and variances, easements, encumbrances, and/or liens (excluding Mortgages) against any Property (Fee Estate and Leasehold Estate), and such other instruments as Tenant may from time to time request in connection with Construction Work or to enable Tenant from time to time to use and operate the Premises in accordance with this Restated Lease, provided each of the foregoing is in reasonable and customary form and does not cause the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor to be encumbered as security for any obligation and does not otherwise expose the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, to any material risk of forfeiture during or after the Term or any liens, encumbrances or easements subsequent to Term. Tenant shall reimburse Landlord’s Legal Costs and all other actual out-of-pocket costs incurred by Landlord in performing under this Section.

7.6 USTs. Landlord shall complete UST Upgrades for each of the USTs at the Properties set forth on Schedule 2 and, to the extent required by Law, the Property set forth on Exhibit C. Tenant shall be responsible for all repair, maintenance, replacement and removal of all USTs listed on Schedule 2 for which UST Upgrades have been completed and all other USTs at the Premises, except Tenant shall not be responsible for the removal or closure in place of the USTs at the Property set forth on Exhibit C. At the time that an UST Upgrade is completed at a particular Property set forth in Schedule 2 and Exhibit C, except for Landlord’s obligations under Section 9.1 to Remediate, if any, Landlord shall no longer have any responsibility or obligation with respect to such UST and Tenant shall be solely responsible therefor. In the event that Tenant exercises the Renewal Option in the First Renewal Term for the Premises pursuant to the express provision of Section 2.1, on or before the first day of such First Renewal Term, Landlord shall by a Bill of Sale (containing a representation by Landlord that it has complied with its UST Upgrade obligations under this Restated Lease) transfer the USTs under the Properties listed on Exhibit C (to the extent such USTs have not already been removed from such Properties) and Schedule 2 to Tenant for nominal consideration, except the foregoing shall not apply to any USTs owned by any Third Party Lessor.

8. PROHIBITED LIENS.

8.1 Tenant’s Covenant. If at any time during the Term, whether during the period of construction or reconstruction of buildings, or at any other time, any Prohibited Liens shall be filed against any Property or any part thereof relating to work authorized or approved by Tenant or Subtenant or their respective agents, contractors, or employees in respect of such Property, Tenant shall, at its expenses cause the same to be discharged, by payment, bonding or otherwise as provided by Law, within forty-five (45) days after Tenant receives Notice from Landlord that the Prohibited Lien was filed (but in any case within fifteen (15) days after receipt of Notice from Landlord of commencement of foreclosure proceedings), except for such liens that may have been incurred by Landlord arising from Landlord’s, a Third Party Lessor’s, the Leemilt’s Lessor’s, the Power Test Lessor’s or the Gettymart Lessor’s actions. Nothing herein contained shall in any way prejudice the rights of Tenant to contest to final judgment or decree any such Prohibited Lien prior to payment thereof pursuant to the provisions of Article 11 hereof. The mere existence of a Prohibited Lien shall not be construed as a Non-Material Default under this Restated Lease unless Tenant fails to take action as aforesaid. Should a Prohibited Lien be

filed against the Premises or any Property as a result of the actions of Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, Landlord shall, at its sole cost and expense, likewise cause such Prohibited Lien to be cleared of record.

8.2 Protection of Landlord. Notice is hereby given that Landlord shall not be liable for any labor or materials furnished or to be furnished to Tenant upon credit, and that no mechanic’s or other lien for any such labor or materials shall attach to or affect the Fee Estate or Landlord’s leasehold interest in any Fee Estate subject to a Third Party Lease, the Leemilt’s Lease, a Power Test Lease, or the Gettymart Lease. Nothing in this Restated Lease shall be deemed or construed in any way to constitute Landlord’s consent or request, express or implied, by inference or otherwise, to any contractor, subcontractor, laborer, equipment or material supplier for the performance of any labor or the furnishing of any materials or equipment for any improvement, alteration or repair of, or to, any Property, or any part thereof, nor as giving Tenant any right, power or authority to contract for, or permit the rendering of, any services, or the furnishing of any materials that would give rise to the filing of any liens against the Fee Estate or Landlord’s leasehold interest in any Fee Estate subject to a Third Party Lease, the Leemilt’s Lease, or a Power Test Lease, or the Gettymart Lease. Nothing contained in the preceding sentence shall be deemed to require Landlord’s consent to such matters. Tenant shall Indemnify Landlord against any Construction Work performed on any Property for or by Tenant, including any Prohibited Lien arising from such Construction Work performed by or on behalf of Tenant or Subtenant or their respective agents, contractors, or employees.

9. ENVIRONMENTAL MATTERS.

9.1 Landlord Remediation. Landlord shall, at Landlord’s expense, Remediate the Contamination at or emanating from the Properties set forth on Schedule 3 and any Contamination resulting from the UST Upgrades at the Properties set forth on Schedules 2 and Exhibit C. Landlord’s obligation to Remediate Contamination at any of the Properties on Schedule 2, Schedule 3 and Exhibit C shall continue until Closure is obtained for the particular Properties. Landlord shall be entitled to the benefit of any government reimbursement funds that may be available for such Remediation of Contamination by Landlord. Landlord or its agents shall control administrative efforts to recover such reimbursement at Landlord’s sole cost and expense.

9.1.1 Negotiations. Landlord or its agents shall conduct all negotiations with the Government for the Remediation of the Contamination for which Landlord is responsible under Section 9.1; provided, however, Tenant may attend, but not actively participate in any such negotiations, and provided further that Tenant may take such actions as may be necessary to ensure that it can continue to operate the Property, such actions to be at Tenant’s sole cost and expense. Landlord shall not negotiate Closure limits less stringent than required by applicable Law. Tenant agrees that it shall not independently negotiate with the Government in connection with Landlord’s Remediation of Contamination under Section 9.1. Further, Tenant shall not negotiate Closure limits more stringent than required by applicable Law. Landlord shall provide Tenant with copies of any correspondence or documents it provides to or receives from the Government


	relating to its Remediation of Contamination under Section 9.1. Tenant shall provide Landlord with copies of any correspondence or documents it provides to or receives from the Government relating to Landlord’s Remediation of Contamination under Section 9.1.

	9.1.2 New Contamination. If New Contamination is discovered at or emanating from any of the Properties being Remediated by Landlord under Section 9.1, but prior to Closure, Tenant shall make all reporting or notification required by the Environmental Laws, shall promptly notify Landlord, and shall act promptly to minimize the effects of the New Contamination. If Landlord reasonably determines that such New Contamination will make Landlord’s Remediation at the applicable Properties more expensive, more difficult or will extend the time required to complete the Remediation, Landlord and Tenant agree to secure promptly the services of an environmental consultant (the “Environmental Consultant”), mutually acceptable to Landlord and Tenant, who shall make an assessment of the Contamination and New Contamination, including the remaining cost to complete Landlord’s Remediation absent the New Contamination and an estimate of the cost of the additional work that will be required due to the New Contamination. Based upon this assessment, the Environmental Consultant shall make an apportionment of the costs and Tenant shall begin paying Landlord for the additional expenses incurred by Landlord in remediating the New Contamination. At Tenant’s election, and with Landlord’s consent, which shall not be unreasonably withheld, Tenant may assume the Remediation of the New Contamination. Further, Landlord and Tenant may negotiate a transfer of the Remediation responsibility for the Contamination and New Contamination from Landlord to Tenant with the costs of such Remediation continuing to be shared between Landlord and Tenant as set forth in this Section. If such transfer of Remediation responsibility is made, Tenant shall execute and deliver to Landlord a release of Remediation liability for the Contamination, and such release shall include an assignment to Tenant of Landlord’s rights to reimbursement from the state reimbursement fund, if any for the applicable Property. Tenant covenants to pay to Landlord within forty-five (45) days of receipt of Notice from Landlord, with evidence of payment by Landlord, all costs associated with Landlord’s Remediation of the New Contamination as Remediation work is performed and as invoices for such work are presented to Landlord.

	9.1.3 Access. Tenant shall provide for and permit access, at no cost to Landlord, as Landlord and its employees, agents, and contractors may require to each of the Properties under Schedule 2, Schedule 3 and Exhibit C, as is required for Landlord to meet all environmental obligations for Remediation of Contamination or for UST Upgrades. Such access shall include the right to conduct such tests, take such groundwater or soil samples, excavate, remove, dispose of, and treat the soil and groundwater, and undertake such other actions as are necessary in the sole judgment of Landlord. Landlord shall expeditiously remove from the applicable Property as soon as reasonably practicable or as required by Environmental Law all drums containing drill cuttings, soil, debris or


	liquids generated from Landlord’s Remediation or investigation activities. Landlord shall restore the surface and existing structures, if any, on the applicable Premises to a condition substantially similar to that at the time immediately prior to the action taken by Landlord and shall replace or repair damage to Tenant’s equipment and personal property on such Property caused by Landlord or its contractors. Landlord shall, to the extent practical, undertake the actions necessary to complete its Remediation of Contamination in a manner that will not unreasonably disrupt the operations of Tenant on the applicable Property. In no event, however, shall Landlord have liability to anyone, including Tenant, for business disruption, lost profits, or consequential damages arising from such actions or access. Landlord or its contractors shall provide Tenant as much advance notice as possible of all potentially disruptive or intrusive activities to be taken on any of the applicable Properties. Such notice may be in the form of a periodic schedule of activities. No advance notice shall be required for non-disruptive activities, such as periodic monitoring of wells. Landlord and Tenant agree to cooperate on the placement and the location of Landlord’s Remediation equipment. Any cost or expense to repair or replace monitoring and Remediation equipment resulting from the acts or omissions of Tenant or Subtenant or their respective employees, agents, licensees, invitees, Subtenants and contractors shall be the responsibility of Tenant.

	9.1.4 Maintenance of Records. During the course of Landlord’s Remediation of Contamination at any of the Properties on Schedule 2, Schedule 3, and Exhibit C, Tenant shall maintain UST inventory and tank line maintenance records for the applicable Premises as required to comply with the Environmental Laws. Landlord shall have the right to review these records as Landlord deems necessary so as to be assured of the integrity of Tenant’s UST system at the applicable Properties.

9.2 Tenant Obligations. Except for those particular obligations of Landlord set forth in Sections 7.6, 9.1 and 25.3 herein and set forth in the Environmental Agreement, Tenant shall, except as provided in Section 25.3, be solely responsible, at its own cost and expense, for compliance with all Environmental Laws applicable to the Premises after the Commencement Date of the 1997 Master Lease. Tenant shall be solely responsible, at its own cost and expense, for any Remediation required by the applicable Government resulting from Remediation limits changed after Closure has been completed at any of the Properties on Schedule 2, Schedule 3 and Exhibit C. The obligations of Tenant set forth in this Section 9.2 shall survive the expiration or earlier termination of this Restated Lease.

10. INDEMNIFICATION; LIABILITY OF LANDLORD.

10.1 Mutual Indemnity Obligations. Landlord and Tenant shall each Indemnify the other against: (a) any wrongful act, wrongful omission or negligence of the Indemnitor (and, in the case of (i) Tenant, that of any of Tenant’s Subtenants, and Tenant’s and any of their respective partners, directors, officers, members, contractors, employees, agents, licensees and invitees; and (ii) Landlord, that of the Leemilt’s Lessor, the Power Test Lessor, the Gettymart

Lessor and their respective partners, directors, officers, members, contractors, employees, agents, licensees and invitees); and (b) any breach or Default by the Indemnitor under this Restated Lease or the Environmental Agreement. In addition to and without limiting the generality of the foregoing indemnity, Tenant shall Indemnify Landlord and Realty Parent (and with respect to clause (y) below, Third Party Lessors, the Leemilt’s Lessor, the Power Test Lessor, and the Gettymart Lessor) against all the following matters (except to the extent any claim arises from any wrongful act, wrongful omission or negligence of Landlord, Realty Parent, any Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor) relating to: (t) any Remediation of New Contamination for which Tenant is obligated pursuant to Section 9.1 and for breach of Tenant’s obligations to comply with Environmental Laws pursuant to Section 9.2; (u) the operation or occupancy of any Property; (w) any Construction Work performed during the Term; (x) the condition of any Property or any street, curb or sidewalk adjoining such Property, whether or not such condition existed before the Restatement Effective Date; or of any vaults, tunnels, passageways or space under, adjoining or appurtenant to the Premises whether or not such condition existed before the Restatement Effective Date; (y) any accident, injury or damage whatsoever caused to any person or their property occurring during the Term, in or on the Premises or upon or under the sidewalks adjoining such Property; and (z) any wrongful termination of a Sublease. Notwithstanding the foregoing, Tenant shall have no obligation to Indemnify Realty Parent if (a) a conflict of interest exists such that the use of a single counsel to represent both Realty Parent and Landlord is not advisable, (b) the claims and defenses available to Realty Parent and Landlord with respect to any such claim are not substantially identical, and (c) the inclusion of Realty Parent as an Indemnitee would cause Tenant to incur more than a de minimis amount of additional cost or expense in discharging its indemnification obligations pursuant to this Article. In addition, Landlord shall Indemnify Tenant and Marketing Parent for (i) any UST Upgrade Landlord is obligated to perform pursuant to Section 7.6, (ii) any Remediation of Contamination for which Landlord is obligated under Section 9.1, and (iii) any matter whatsoever relating to the Abandoned Properties, including, without limitation, compliance with Environmental Laws. Notwithstanding the foregoing, Landlord shall have no obligation to Indemnify Marketing Parent if (a) a conflict of interest exists such that the use of a single counsel to represent both Marketing Parent and Tenant is not advisable, (b) the claims and defenses available to Marketing Parent and Tenant with respect to any such claim are not substantially identical, or (c) the inclusion of Marketing Parent as an Indemnitee would cause Landlord to incur more than a de minimis amount of additional cost or expense in discharging its indemnification obligations pursuant to this Article. Notwithstanding anything to the contrary in this Restated Lease, neither party shall be required to Indemnify the other party from or against such other party’s intentional acts or negligence.

10.2 Liability of Landlord. Except with respect to the obligations of Landlord pursuant to the Environmental Agreement and Sections 7.6 and 9.1 hereof, Tenant shall be deemed to be in exclusive control and possession of the Premises during the Term as provided in this Restated Lease. Landlord shall not be liable for any injury or damage to any Property or to any Person occurring on or about any Property nor for any injury or damage to any property of Tenant, or of any other person, during the Term, unless caused by Landlord’s, the Leemilt’s Lessor’s, the Power Test Lessor’s, or the Gettymart Lessor’s wrongful acts and/or omissions or acts of negligence or a breach of Landlord’s obligations under this Restated Lease either by

Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or any of their respective agents, employees, contractors, licensees or invitees. The provisions of this Restated Lease permitting Landlord to enter and inspect any Property are intended to allow Landlord to be informed as to whether Tenant is complying with the agreements, terms, covenants and conditions of this Restated Lease, and to the extent permitted by this Restated Lease, to perform such acts required by Landlord under this Restated Lease and of Tenant if Tenant shall fail to perform. Such provisions shall not be construed to impose upon Landlord any obligation, liability or duty to third parties, but nothing in this Restated Lease shall be construed to exculpate, relieve or Indemnify Landlord from or against any obligation, liability or duty of Landlord to third parties existing at or before the applicable Commencement Date or its obligations arising under Sections 7.6 or 9.1 hereof or the Environmental Agreement.

10.3 Indemnification Procedures. Wherever this Restated Lease requires an Indemnitor to Indemnify an Indemnitee, the following procedures and requirements shall apply:


	10.3.1 Prompt Notice. The Indemnitee shall give the Indemnitor prompt Notice of any claim. To the extent, and only to the extent, that both (a) the Indemnitee fails to give prompt Notice and (b) the Indemnitor is thereby prejudiced, the Indemnitor shall, except as otherwise required under a Third Party Lease, be relieved of its indemnity obligations under this Restated Lease.

	10.3.2 Selection of Counsel. The Indemnitor shall be required to select counsel reasonably acceptable to the Indemnitee. Counsel to the Indemnitor’s insurance carrier shall be deemed satisfactory. Indemnitee may have its own counsel, at Indemnitee’s expense, consult with Indemnitor’s counsel.

	10.3.3 Settlement. The Indemnitor may, with the consent of the Indemnitee, not to be unreasonably withheld, settle the claim, except that no consent by the Indemnitee shall be required as to any settlement by which (x) the Indemnitor procures (by payment, settlement, or otherwise) a release of the Indemnitee pursuant to which the Indemnitee is not required to make any payment whatsoever to the claimant, (y) neither the Indemnitee nor the Indemnitor acting on behalf of the Indemnitee makes any admission of liability, and (z) the continued effectiveness of this Restated Lease is not adversely affected in any material respect.

10.4 Insurance Proceeds. The Indemnitor’s obligations shall be reduced by net insurance proceeds actually collected by the Indemnitee on account of the loss.

10.5 Survival. All indemnities set forth in this Restated Lease shall survive the expiration or earlier termination of this Restated Lease but each such indemnity shall in no event survive the earlier to occur of the following: (a) the seventh (7th) anniversary of the Termination Date, and (b) the date when the time period set forth in the statute of limitations applicable to the subject matter of such indemnity has run.

11. RIGHT OF CONTEST.

11.1 Tenant’s Right. Notwithstanding anything to the contrary in this Restated Lease, and subject to the terms of Third Party Leases, Tenant shall have the right to contest, at its sole expense, by appropriate legal proceedings diligently conducted in good faith, the amount or validity of any Imposition or Prohibited Lien; the valuation, assessment or reassessment (whether proposed or final) of any Property for purposes of Real Estate Taxes; the validity of any Law or Environmental Law or the application of any Law or Environmental Law to any Property; or the validity or merit of any claim against which Tenant is required to Indemnify Landlord under this Restated Lease (any of the foregoing, a “Contest”). Tenant may defer payment of the contested Imposition or compliance with the contested Law or performance of any other contested obligation pending the outcome of the Contest, provided that such deferral does not subject (a) the applicable Property or any portion thereof to any risk of imminent forfeiture or foreclosure of any Fee Mortgage, or (b) Landlord to any risk of criminal liability.

11.2 Landlord’s Obligations and Protections. Landlord shall not be required to join in any Contest unless a Law or Environmental Law shall require that such Contest be brought in the name of Landlord or any owner of the Fee Estate. In such case, Landlord shall cooperate with Tenant, as Tenant shall reasonably request, so as to (a) permit such Contest to be brought in Landlord’s or the Power Party Lessor’s name, as applicable, or (b) in the case of a Property owned by a Third Party Lessor, request that such Contest be brought in such Third Party Lessor’s name. Tenant shall pay all reasonable costs and expenses (including Legal Costs) incident to a Contest. Tenant shall Indemnify Landlord, the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor and the Third Party Lessors against any Contest brought by Tenant, whether or not such Contest is brought in Tenant’s name.

11.3 Miscellaneous. Tenant shall be entitled to any refund of any Imposition (and penalties and interest paid by Tenant) based upon Tenant’s prior overpayment of such Imposition, whether such refund is made during or after the Term. Upon termination of Tenant’s Contest of an Imposition, Tenant shall pay the amount of such Imposition (if any) as has been finally determined in such Contest to be due, together with any costs, interest, penalties or other liabilities in connection with such Imposition. Upon final determination of Tenant’s Contest of a Law or Environmental Law, as applicable, Tenant shall comply with such final determination. Landlord shall not enter any objection to any Contest. Tenant’s right to contest any Imposition or the valuation, assessment or reassessment of any Property for tax purposes shall not be to the exclusion of Landlord, and Landlord shall have the right to contest the foregoing upon Notice to Tenant.

11.4 Cooperation. Landlord and Tenant shall, upon request of the other, reasonably cooperate with the other party and otherwise provide such data as are maintained by the party to whom the request is made with respect to any Property as may be necessary to prepare any required returns and reports or as may be necessary in connection with the pursuit of any Contest permitted hereunder. Landlord shall cause the Power Test Lessor, the Leemilt’s Lessor, and the Gettymart Lessor to and shall request that any Third Party Lessors, upon Tenant’s request, reasonably cooperate with Tenant and otherwise provide the data referred to in the preceding sentence with respect to any Property subject to a Power Test Lease, the Leemilt’s

Lease, the Gettymart Lease or a Third Party Lease, as applicable. Landlord, to the extent it possesses the same, and Tenant, to the extent it possesses the same, will provide the other party, upon request, with cost and depreciation records necessary for filing returns for any property classified as personal property or necessary in connection with the pursuit of any Contest permitted hereunder. Landlord will cause the Power Test Lessor, the Leemilt’s Lessor, and the Gettymart Lessor, to the extent such parties possesses the same, and will request that the applicable Third Party Lessor, to the extent such Third Party Lessor possesses the same, provide Tenant, upon request, with the records referred to in the preceding sentence with respect to any Property subject to a Power Test Lease, the Leemilt’s Lease, the Gettymart Lease or Third Party Lease, as applicable. Landlord shall give and shall cause the Power Test Lessor, the Leemilt’s Lessor and the Gettymart Lessor to give prompt Notice to Tenant of all Real Estate Taxes payable by Tenant hereunder for which Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor, as applicable, receives an invoice or other statement. Landlord shall request that each Third Party Lessor give prompt Notice to Tenant of all Real Estate Taxes payable by Tenant hereunder for which such Third Party Lessor receives an invoice or other statement. All information made available under this Section 11.4 shall be treated as “confidential” by the recipient and not be disclosed to any third party except to the extent absolutely necessary to implement such permitted Contest.

12. INSURANCE.

12.1 Tenant to Insure. Tenant shall, at Tenant’s sole cost and expense, during the Term, maintain the following insurance (or its then reasonably available equivalent) or such greater coverage as may be required by a Third Party Lease:


	12.1.1 Building. Building insurance providing coverage for the Premises and all equipment, fixtures, and machinery at or in the Premises, against loss, damage, and destruction by fire and other hazards encompassed under broad form coverage as may be customary for like properties in the County (but Tenant shall in no event be required to maintain earthquake or war risk insurance) from time to time during the Term, in an amount not less than 80% of the replacement value of the insurable Improvements and equipment (excluding excavations and foundations) located at the Premises, but in any event sufficient to avoid co-insurance. To the extent customary for like properties at the time, such insurance shall include coverage for explosion of steam and pressure boilers and similar apparatus located at the Premises; an “increased cost of construction” endorsement; and an endorsement covering demolition and cost of debris removal.

	12.1.2 Liability. General public liability insurance against claims for personal injury, death or property damage occurring upon, in or about the Premises and adjoining streets and passageways. The coverage under all such liability insurance shall be at least $50 million in the aggregate for any Lease Year, $5 million in respect of injury or death to a single person, and at least $10 million, in respect of any one accident, and not less than full replacement value for property damage. Landlord shall be entitled from time to time, upon 180 days’ Notice to Tenant, to increase the dollar limits set forth in this Section, subject to


	the following limitations, which shall be cumulative: (a) such increased limits shall never exceed the limits initially set forth (as adjusted by the CPI Adjustment Factor), rounded to the nearest $1,000,000; (b) such limits shall never exceed the limits customarily maintained for similar commercial properties located in the County; and (c) Landlord shall not be entitled to increase such limits more frequently than once every three years.

	12.1.3 Workers’ Compensation. Workers’ compensation insurance covering all persons employed in connection with any Construction Work or operation of the Premises, and with respect to whom any claim could be asserted against Landlord, Realty Parent, a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor, the Fee Estate or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor.

	12.1.4 Other. All other insurance as Tenant determines appropriate in the exercise of Tenant’s reasonable business judgment.

12.2 Nature of Insurance Program. Tenant shall provide any insurance required by this Restated Lease pursuant to a “blanket” or “umbrella” insurance policy covering all Properties demised hereunder, (i) which policy or a certificate of such policy shall specify the amount(s) of the total insurance allocated to each Property and to the Premises, which amounts shall not be subject to reduction on account of claims made with respect to other Properties or other properties that may be covered by such “blanket” or “umbrella” insurance policy, and (ii) which policy otherwise complies with this Restated Lease.


	12.3 Policy Requirements and Endorsements. All insurance policies required by this Restated Lease shall contain (by endorsement or otherwise) the following provisions:

	12.3.1 Additional Insureds. Liability insurance policies shall name as additional insureds Landlord, its Affiliates and/or Subsidiaries, Realty Parent, Third Party Lessors, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor and Fee Mortgagees.

	12.3.2 Primary Coverage. All policies shall be written as primary policies not contributing with or in excess of any coverage that Landlord may carry.

	12.3.3 Tenant’s Acts or Omissions. Each policy shall include, if available without additional cost, a provision that any act or omission of Tenant shall not prejudice any party’s rights (other than Tenant’s) under such insurance coverage.

	12.3.4 Contractual Liability. Policies of liability insurance shall contain contractual liability coverage, relating to Tenant’s indemnity obligations under this Restated Lease, to the extent ordinarily insured.


	12.3.5 Insurance Carrier Standards. Each insurance carrier shall be authorized to do business in the State and shall have a “Best’s” rating of at least B+-VI.

	12.3.6 Notice to Landlord. The insurance carrier shall undertake to give Landlord sixty (60) days’ prior Notice of cancellation or amendment. Failure to give such Notice shall not adversely affect the rights or increase the obligations of the insurance carrier or be deemed a Default by Tenant hereunder.

12.4 Deliveries to Landlord. Upon Notice to such effect by Landlord, Tenant shall deliver to Landlord certificates and/or certified copies of the insurance policies required by this Restated Lease, endorsed “Paid” or accompanied by other evidence that the premiums for such policies have been paid, at least thirty (30) days before expiration of any then current policy.

12.5 Deductibles. The deductible amounts of any insurance policy that Tenant is required to maintain under this Article shall not exceed the deductible amounts maintained by Tenant immediately prior to the date hereof. Notwithstanding the foregoing, in the event that Landlord requires Tenant to increase the amount of coverage provided by Tenant’s liability insurance policies pursuant to the provisions of Section 12.1.2 or if Tenant increases the amount of coverage provided by Tenant’s building insurance policies, Tenant shall be entitled to a ratable increase in the maximum deductible amounts permitted hereunder with respect to such liability insurance policies or building insurance policies, as applicable. The terms of any policy of general liability insurance maintained by Tenant pursuant to Section 12.1.2 shall permit third parties who suffer losses covered by such policy to recover from the insurance carrier insurance proceeds in an amount equal to such losses, up to the maximum amount of the insurance coverage provided by such policy, notwithstanding (a) the existence of any deductible amount with respect to such policy and (b) any claim that such carrier may have against Tenant with respect to such carrier’s payment to third parties of such deductible amount.

12.6 Tenant’s Inability to Obtain Insurance. So long as (a) any insurance required by this Restated Lease should, after reasonably diligent effort by Tenant, be unobtainable at customary rates through no act or omission by Tenant and (b) Tenant shall obtain the maximum insurance reasonably obtainable at customary rates and give Notice to Landlord of the extent of Tenant’s inability to obtain any insurance required to be maintained under this Restated Lease, then unless Tenant’s inability to procure and maintain such insurance results from some activity or conduct within Tenant’s reasonable control, Tenant’s obligation to procure and maintain such insurance as is unobtainable shall be excused, but only so long as conditions (a) and (b) are satisfied. Notwithstanding the foregoing, if Tenant, after reasonably diligent effort, is unable to obtain any insurance required by this Restated Lease at customary rates, Landlord shall have the right to obtain such insurance at customary rates and shall charge the cost of such insurance to Tenant as Additional Rent.

12.7 Waiver of Certain Claims. To the extent that Landlord or Tenant purchases any hazard insurance relating to any Property, the party purchasing such insurance shall attempt to cause the insurance carrier to agree to a Waiver of Subrogation. If any insurance policy cannot be obtained with a Waiver of Subrogation, or a Waiver of Subrogation is obtainable

only by the payment of an additional premium, then the party undertaking to obtain the insurance shall give Notice of such fact to the other party. The other party shall then have ten (10) Business Days after receipt of such Notice either to place the insurance with a company that is reasonably satisfactory to the other party and that will issue the insurance with a Waiver of Subrogation at no additional cost, or to agree to pay the additional premium if such a policy can be obtained only at additional cost. To the extent that the parties actually obtain insurance with a Waiver of Subrogation, the parties release each other, and their respective authorized representatives, from any claims for damage to any person or any Property that are caused by or result from risks insured against under such insurance policies, but only to the extent of the insurance proceeds available to such party.

12.8 No Representation of Adequate Coverage. Except as otherwise specifically provided for herein, neither party makes any representation, or shall be deemed to have made any representation, that the limits, scope, or form of insurance coverage specified in this Article are adequate or sufficient.

13. DAMAGE OR DESTRUCTION.

13.1 Notice; No Rent Abatement. Tenant shall promptly give Landlord Notice of any Casualty. Except as otherwise set forth herein, there shall be no abatement or reduction of Fixed Rent or Additional Rent on account of a Casualty. Except as otherwise provided in Section 13.3 and 13.4, Tenant shall with reasonable promptness restore the damaged Improvements as nearly as may be practicable to their condition, quality, and class immediately prior to such Casualty, with such changes or alterations (including demolition) as Tenant shall elect to make in conformity with this Restated Lease, including, without limitation, the provisions of Article 5 and Section 7.2, all at Tenant’s sole cost and expense.

13.2 Adjustment of Claims; Use of Insurance Proceeds. Except to the extent otherwise provided in a Permitted Leasehold Mortgage or a Third Party Lease, Tenant shall be solely responsible for the adjustment of any insurance claim. Except as otherwise provided in Section 13.3 and 13.4 or a Third Party Lease, all proceeds of building or hazard insurance shall be paid to the Permitted Leasehold Mortgagee to be used for restoration of the Premises if the Permitted Leasehold Mortgage encumbering the Leasehold Estate at the time of such Casualty, if any, so requires. If such Permitted Leasehold Mortgage so allows or if no Permitted Leasehold Mortgage encumbers the Leasehold Estate at the time of any such Casualty, then, except as otherwise provided in Section 13.3 and 13.4, such proceeds shall be paid to Tenant to be held and applied in compliance with its restoration obligations under this Restated Lease. After (a) completion of such restoration and (b) payment of all Fixed Rent, Real Estate Taxes and insurance premiums required pursuant to Article 12 allocable to such Property, as reasonably determined by Tenant in accordance with the principles set forth in the Fixed Rent Adjustment Procedures, due and payable during the period beginning on the date of such Casualty and ending on the date of completion of such restoration (except to the extent Tenant shall be entitled to receive business interruption insurance or rental insurance with respect to such Casualty), any funds remaining shall, subject to the rights of Third Party Lessors, belong to Landlord.

13.3 Substantial Casualty; Insufficient Proceeds. Anything to the contrary contained herein notwithstanding, if a Substantial Casualty occurs and the insurance proceeds received by Tenant with respect to such Substantial Casualty are not sufficient to pay for the restoration required by Section 13.1 notwithstanding Tenant’s compliance with its obligations under Section 12.1.1 hereof with respect to the maintenance of building insurance, then Tenant may, subject to the provisions of the applicable Third Party Lease, if any, (a) elect to restore the Property for a lawful use other than the use of the Property immediately prior to such Substantial Casualty, subject to the requirements contained in Section 7.2, or (b) elect not to restore such Property, in either case by delivering Notice of such election to Landlord within thirty (30) days of the determination of the amount of insurance proceeds to be received from the insurance carrier with respect to such Substantial Casualty. If Tenant makes the election referred to in clause (a) of this Section, then the proceeds received with respect to such Substantial Casualty shall be held, applied and distributed in accordance with the provisions of Section 13.2. Tenant shall perform the Construction Work with respect to such restoration in conformity with the applicable requirements of this Restated Lease, including, without limitation, the provisions of Section 7.2, all at Tenant’s sole cost and expense. If Tenant makes the election referred to in clause (b) of this Section, then the insurance proceeds received with respect to such Substantial Casualty shall, subject to the rights of Third Party Lessors, belong entirely to Landlord. If, at the time of any such election referred to in clause (b), Tenant then holds any portion of the insurance proceeds received on account of such Substantial Casualty, such proceeds shall, subject to the rights of Third Party Lessors, promptly be paid to Landlord. In no event shall any election pursuant to this Section 13.3 (i) to change the use of such Property or (ii) to refrain from repairing, restoring or reconstructing such Property be construed, in either case, to grant Tenant any right to delete such Property from this Restated Lease or to any abatement or reduction in Rent or in any way affect Tenant’s obligation to comply with all applicable Law and Environmental Law with respect to such Property.

13.4 End of Term. Notwithstanding anything to the contrary contained herein, if a Substantial Casualty occurs within the last thirty (30) months of the end of the existing Term, Tenant may, upon Notice to Landlord given within thirty (30) days of the determination of the amount of insurance proceeds to be received from the insurance carrier with respect to such Substantial Casualty and subject to the provisions of the applicable Third Party Lease, if any, elect to not restore such Property, regardless of whether the insurance proceeds with respect to such Substantial Casualty are sufficient to complete the restoration of the Property in accordance with Section 13.1 hereof. If Tenant so elects not to restore, then the insurance proceeds with respect to such Substantial Casualty shall, subject to the rights of Third Party Lessors, belong entirely to Landlord. If, at the time of such election, Tenant then holds any portion of such insurance proceeds, such proceeds shall, subject to the rights of Third Party Lessors, promptly be paid to Landlord. If Tenant makes such election not to restore, then this Restated Lease shall terminate as to such Property as of the date on which Landlord or the Third Party Lessor, as the case may be, receives the full amount of the insurance proceeds to be received from all insurance carriers with respect to such Substantial Casualty, and such Property shall be deemed deleted from this Restated Lease on such date. Thereupon, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted

accordingly. In no event shall any election pursuant to this Section be deemed to grant Tenant any right to delete such Property from this Restated Lease or to any abatement or reduction in Rent or in any way affect Tenant’s obligation to comply with all applicable Law and Environmental Law with respect to such Property until the time at which such Property is deleted from this Restated Lease pursuant to the foregoing provisions.

14. CONDEMNATION.


	14.1 Substantial Condemnation.

	14.1.1 Deletion; Awards. If a Substantial Condemnation of any Property shall occur, then this Restated Lease shall terminate as to such Property as of the effective date of such Substantial Condemnation, such Property shall be deemed to be deleted from this Restated Lease, the Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. If the applicable Government grants separate Awards to Landlord and Tenant (a “Separate Award Jurisdiction”), then, notwithstanding anything to the contrary contained in Section 14.5 and subject to the rights of any Third Party Lessor, each of Landlord and Tenant shall in good faith pursue such separate Award and shall be entitled to retain such Award as it may receive from the applicable Government with respect to its interest in the applicable Property. Notwithstanding the foregoing, if the Awards received in a Separate Award Jurisdiction with respect to such Substantial Condemnation are inequitable given Landlord’s and Tenant’s respective interests in such Property or if the Property condemned is not located in a Separate Award Jurisdiction, then, the following provision shall apply. Subject to the rights of any Third Party Lessor, the aggregate of such Award(s) shall be paid as follows, after Landlord shall have been reimbursed for Landlord’s Legal Costs incurred in the determination and collection of the Award(s): Tenant shall receive an amount equal to the product of (a) Tenant’s Condemnation Share, times (b) the Award(s), and Landlord shall receive the remainder of the Award(s).

	14.1.2 Tenant’s Separate Award. Anything to the contrary contained herein notwithstanding, if the applicable Government grants to Tenant a separate Award on account of Trade Equipment, moving costs, or loss of business, then Tenant shall be entitled to apply for and retain such separate Award, provided that such separate Award does not reduce the Award(s) otherwise payable to Landlord and/or Tenant by such Government with respect to such Condemnation.

	14.1.3 Disputes. The amount of Landlord’s Award and Tenant’s Award with respect to any Substantial Condemnation shall be determined in accordance with the provisions set forth above in the definitions of such terms. In the event that the parties hereto are unable to agree on such amounts or, with respect to a Separate Award Jurisdiction, a dispute arises as to whether the Awards received by Landlord and Tenant are inequitable given their respective


	interests in such Property, then any such dispute shall be resolved by an arbitration conducted in accordance with the applicable provisions set forth in Schedule 4.

	14.2 Insubstantial Condemnation.

	14.2.1 Awards. If an Insubstantial Condemnation at any Property shall occur, then subject to the terms of any Third Party Lease to the contrary, the Award received with respect to such Insubstantial Condemnation shall, except as otherwise provided in this Section 14.2, be paid to Tenant to be applied first to the repair, restoration or reconstruction of any remaining part of the Improvements not so taken, but only if and to the extent that such repair, restoration or reconstruction was necessitated by the occurrence of such Insubstantial Condemnation (as opposed to a condition that existed prior to the occurrence of such Insubstantial Condemnation). Except as otherwise provided in Section 14.2.2 and 14.2.3, Tenant Improvements (other than outbuildings, recreational facilities, service buildings, maintenance sheds or the like which are not material to the use or operation of such Property, which Tenant may elect not to re-erect) as nearly as may be practicable to their condition, quality and class immediately prior to such Insubstantial Condemnation, with such changes or alterations (including demolition) as Tenant shall elect to make in conformity with this Restated Lease, including, without limitation, the provisions of Section 7.2, all at Tenant’s sole cost and expense. The balance of any such Award remaining after such repair, restoration or reconstruction shall be distributed to and shall, subject to the rights of Third Party Lessors, belong to Landlord.

	14.2.2 Insufficient Proceeds. Notwithstanding the foregoing, if such Award is not sufficient to pay for said repair, restoration or reconstruction, Tenant shall be responsible for completing same at Tenant’s sole cost and expense. Tenant shall perform such repair, restoration or reconstruction in accordance with applicable requirements of this Restated Lease, including, without limitation, Section 13.1 hereof. Notwithstanding the foregoing, if such Award is not sufficient to pay for said repair, restoration or reconstruction, then Tenant, subject to the provisions of the applicable Third Party Lease, if any, may (a) elect to repair, restore or reconstruct the Property for a lawful use other than the use of such Property immediately prior to such Insubstantial Condemnation, subject to the requirements contained in Section 7.2, or (b) elect not to repair, restore or reconstruct such Property, in either case by delivering Notice of such election to Landlord within ten (10) days of such Condemnation. If Tenant makes the election referred to in clause (a) of this Section, then the Award received with respect to such Insubstantial Condemnation shall be held, applied and distributed in accordance with the provisions of Section 14.2.1. Tenant shall perform the Construction Work with respect to such repair, restoration or reconstruction in conformity with the applicable requirements of this Restated Lease including, without limitation, the provisions of Section 7.2, but excluding the provisions of Section 14.2.1 which require a rebuilding of the Improvements for the use


	immediately prior to the Condemnation, all at Tenant’s sole cost and expense. If Tenant makes the election referred to in clause (b) of this Section, then the Award received with respect to such Insubstantial Condemnation shall, subject to the rights of Third Party Lessors, belong entirely to Landlord. If, at the time of any such election referred to in clause (b) of this Section, Tenant then holds any portion of the Award received on account of such Insubstantial Condemnation, such Award shall, subject to the rights of Third Party Lessors, promptly be paid to Landlord. In no event shall any election pursuant to this Section (i) to change the use of such Property or (ii) to refrain from repairing, restoring or reconstructing such Property be deemed to grant Tenant any right to delete such Property from this Restated Lease or in any way affect Tenant’s obligation to comply with all applicable Law and Environmental Law with respect to such Property, or any right to any abatement of Rent except as provided in Section 14.2.4.

	14.2.3 End of Term. Notwithstanding anything to the contrary contained herein, if a Insubstantial Condemnation occurs on a Property within the last thirty (30) months of the end of the existing Term which requires restoration of the Improvements on such Property (by more than a de minimis amount), Tenant may, upon Notice to Landlord within ten (10) days after the effective date of such Condemnation and subject to the provisions of the applicable Third Party Lease, if any, elect to not restore such Property, regardless of whether the Award with respect to such Insubstantial Condemnation is sufficient to complete said repair, restoration or reconstruction. If Tenant makes the election referred to in this Section, then the Award with respect to such Insubstantial Condemnation shall, subject to the rights of Third Party Lessors, belong entirely to Landlord. If, at the time of such election, Tenant then holds any portion of the Award received on account of such Insubstantial Condemnation, such Award shall, subject to the rights of Third Party Lessors, promptly be paid to Landlord. If Tenant makes such election not to restore, then this Restated Lease shall terminate as to such Property upon such election, and such Property shall be deemed deleted from this Restated Lease on such date. Thereupon, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. In no event shall any election pursuant to this Section be deemed to in any way affect Tenant’s obligation to comply with all applicable Law and Environmental Law with respect to such Property before the time at which such Property is deleted from this Restated Lease.

	14.2.4 Fixed Rent Adjustment. From and after the effective date of the Insubstantial Condemnation, Fixed Rent shall, except as otherwise provided in Section 14.2.3, be adjusted as follows. New Fixed Rent shall equal Fixed Rent, as it would have been determined without regard to the Insubstantial Condemnation, multiplied by a fraction whose numerator is the total value of applicable Property after the Insubstantial Condemnation and whose denominator is the total value of the applicable Property immediately before the effective date of such Insubstantial


	Condemnation and without considering such Insubstantial Condemnation or the expectation thereof.

14.3 Temporary Condemnation. If a Temporary Condemnation shall occur with respect to any Property, Rent shall not abate and, subject to the terms of Third Party Lease to the contrary, Tenant will be entitled to receive any award or payment.

14.4 Other Governmental Action. In the event of any action by any Government not resulting in a Condemnation (or otherwise not resulting in a deletion of a Property from this Restated Lease pursuant to the express provisions of this Article, including Sections 14.6 and 14.7 hereof) but creating a right to compensation, such as the changing of the grade of any street upon which a Property abuts, then this Restated Lease shall continue in full force and effect without reduction or abatement of Rent and subject to the terms of any Third Party Lease to the contrary, Tenant shall be entitled to receive the award or payment made in connection with such action.

14.5 Prompt Notice; Settlement. If either party becomes aware of any Condemnation or threatened or contemplated Condemnation or any similar event creating a right to compensation, then such party shall promptly give Notice thereof to the other party. Landlord shall be responsible for the settlement or compromise of any Award, except that Landlord shall not settle or compromise any Award without the consent of Tenant and Leasehold Mortgagee, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing and subject to the rights of Leasehold Mortgagee and the applicable Third Party Lessor, Tenant shall be solely responsible for the settlement or compromise of any Award relating to a Temporary Condemnation, and Landlord’s consent to any such settlement or compromise shall not be required. Landlord shall have no right to participate in proceedings related to a Temporary Condemnation, unless Tenant may not legally participate in such proceedings, then Landlord shall participate in such proceedings in accordance with Tenant’s instructions, all at Tenant’s sole cost and expense and using counsel selected, instructed and paid by Tenant.

14.6 Pelham Manor Rezoning Event. If the Pelham Manor Rezoning Event occurs, then the Property having a mailing address of 4301 Boston Post Road, Bronx, New York 10466 shall be deleted from this Restated Lease, the Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. Nothing contained herein shall in any way limit Landlord’s or Tenant’s right to contest the validity or the application of any Law or proposed Law or any Environmental Law or proposed Environmental Law with respect to such Property or any other Property, provided that no such contest shall subject (a) such Property or any portion thereof to any risk of imminent forfeiture or foreclosure of any Fee Mortgage then encumbering such Property or any portion thereof or to any risk of termination of any Third Party Lease or (b) Tenant or Landlord to any risk of criminal liability.

14.7 Use Restriction Event. If, at any time or from time to time, a Use Restriction Event occurs with respect to a Property, then Tenant shall have the option to terminate this Restated Lease with respect to such Property by delivering to Landlord Notice of Tenant’s

election to so terminate such Property from this Restated Lease. Upon the occurrence of a Use Restriction Event, such Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly, provided that Tenant shall have given Landlord at least one (1) year’s prior notice of its election to terminate this Restated Lease with respect to such Property.

15. TRANSFERS BY LANDLORD.

15.1 Landlord’s Right to Convey. Subject to the provisions of Section 15.2 and Section 15.3, Landlord shall be entitled to convey the Fee Estate of any Property and/or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor from time to time, provided that the new holder thereof as a result of such conveyance simultaneously enters into a new lease with Tenant with respect to such Property on the same terms and conditions as are set forth in this Restated Lease, except as otherwise set forth on Schedule 13 (any such new lease being hereinafter referred to as a “Transferee Lease”).
Notwithstanding the foregoing, any conveyance of the Fee Estate of any Property and/or Landlord’s leasehold interest in any Fee Estate owned by a Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor or a Third Party Lessor to an Affiliate or Subsidiary of Tenant shall not be subject to the provisions of Section 15.2 or 15.3; provided, however, that notwithstanding anything to the contrary contained in Schedule 13, the Transferee Lease between Tenant and such Affiliate or Subsidiary shall, as to subsequent conveyance, bind such Affiliate or Subsidiary to Tenant’s Right of First Offer (as defined hereinafter) and Tenant’s Right of First Refusal (as defined hereinafter). Upon any such conveyance of the Fee Estate of any Property or Landlord’s leasehold interest in any Fee Estate owned by a Third Party Lessor, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor in accordance with the preceding provisions, the applicable Property shall be deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. Without limiting Tenant’s remedies on account of any such transaction, if Landlord makes any such conveyance in violation of this Section, then: (x) such transaction shall be null, void, and of no force or effect; (y) notwithstanding the foregoing, Tenant shall be entitled to equitable relief requiring the cancellation and rescission of such transaction; and (z) Tenant shall be entitled to have such violating Property deleted from this Restated Lease, to have the Fixed Rent adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures, and to have the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 adjusted accordingly. Any conveyance of the Fee Estate shall not terminate or impair any of the grantor’s obligations as Landlord under this Restated Lease.

15.2 Tenant’s Right of First Offer. Anything contained in this Restated Lease to the contrary notwithstanding, if at any time during the Term, Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor shall desire to convey its Fee Estate in any Property, then, provided that Landlord has not terminated this Restated Lease on account of an uncured Material Monetary Event of Default, Landlord, the Leemilt’s Lessor, the Power Test Lessor, or

the Gettymart Lessor, as the case may be, shall offer (the “Landlord’s Offer”) to convey such Fee Estate to Tenant (or a purchaser to be procured by Tenant) before offering it to any other individual or entity, all in accordance with the following provisions (as described herein, the “Right of First Offer”).


	15.2.1 Certain Exempt Transactions. Tenant’s Right of First Offer shall not apply to any of the following transactions: (a) the grant of a bona fide Fee Mortgage to an Institutional Lender or other unaffiliated lender; (b) any conveyance pursuant to such a Fee Mortgage; (c) subject to Section 15.6, any conveyance to an entity (i) into which or with which Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, merges, or (ii) which acquires Landlord, the Leemilt’s Lessor, the Power Test Lessor or the Gettymart Lessor or all or substantially all of the assets of such entity, as the case may be, or (d) any subsequent conveyance(s) by anyone whose title derives directly or indirectly from any conveyance described in clause (b) of this paragraph.

	15.2.2 Landlord’s Offer. Landlord’s Offer shall be in writing and shall set forth the material terms, including, without limitation, price, closing date and deposit amounts, on which Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, proposes to convey the Fee Estate. If Tenant accepts Landlord’s Offer, the conveyance to Tenant shall be made on the terms set forth in Landlord’s Offer. Upon conveyance of any Property to Tenant pursuant to this Section, as of the date of such conveyance, such Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.

	15.2.3 Right of First Refusal Election. If Tenant notifies Landlord that Tenant elects to treat the Property that is the subject of Landlord’s Offer as a ROFR Property within thirty (30) days after receipt of Landlord’s Offer, then Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, shall be free to sell such Property to another individual or entity only in compliance with the provisions of Section 15.3. As used herein, the term “ROFR Property” means a Property which Tenant elects to make subject to the Right of First Refusal, provided, however, that Tenant may make such election with respect to no more than forty (40) Properties during the Term.

	15.2.4 Sale to Third Party. If Tenant (a) notifies Landlord that Tenant does not desire to purchase the Fee Estate on the terms of Landlord’s Offer, (b) does not elect to treat such Property as a ROFR Property pursuant to Section 15.2.3 or (c) fails to respond to Landlord’s Offer within thirty (30) days after receipt, then Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, shall be free to sell such Fee Estate to any other individual or entity, except as set forth in the following sentence. If,

however, Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, desires to sell such Fee Estate for a price less than 90% of the price set forth in Landlord’s Offer, or on terms that in any other way are materially more favorable to the purchaser than those described in Landlord’s Offer, then Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, shall again deliver to Tenant a Landlord’s Offer and the procedure described above shall again apply. Notwithstanding the foregoing, if Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, shall again deliver a Landlord’s Offer pursuant to the preceding sentence and Tenant fails to respond to such Landlord’s Offer within fifteen (15) days, then Tenant shall be deemed to have waived its Right of First Offer with respect to such sale. If Tenant does not elect to exercise its Right of First Offer with respect to such Fee Estate within the applicable time frame and Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, sells such Fee Estate to another individual or entity pursuant to this Section 15.2, then, upon such sale, the applicable Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. Simultaneously with such sale, such purchaser shall enter into a Transferee Lease with Tenant with respect to such Property.

15.3 Tenant’s Right of First Refusal. Anything in this Restated Lease contained to the contrary notwithstanding, if Landlord or the Power Test Lessor, as the case may be, at any time during the Term receives one or more bona fide offers from third parties to convey the Fee Estate of a Property that Tenant has elected to treat as a ROFR Property pursuant to Section 15.2.3, which offer Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, intends to accept, then, provided that Landlord has not terminated this Restated Lease on account of an uncured Material Monetary Event of Default, Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, agrees to notify Tenant in writing, which Notice shall contain the name and address of the offeror and the proposed contract of sale (containing the price, deposit amount and all other material terms and conditions of such offer) (such Notice being referred to hereinafter as the “Third Party Offer Notice”). Tenant shall have four (4) Business Days from and after its receipt of the Third Party Offer Notice to provide Landlord with Notice of its election to purchase the ROFR Property that is the subject of such Third Party Offer Notice (such right to purchase any such ROFR Property being referred to hereinafter as the “Right of First Refusal”).

15.3.1 Sale to Third Party. If Tenant does not elect to exercise its Right of First Refusal with respect to such ROFR Property within such time frame, then Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, shall be entitled to convey such ROFR Property to the purchaser set forth in the Third Party Offer Notice on substantially the same terms and conditions in all material respects as those set forth in such Third Party Offer Notice. Such purchaser shall, simultaneously with the conveyance of such ROFR


	Property, enter into a Transferee Lease with Tenant with respect to such ROFR Property. Upon such conveyance, such Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. If Landlord does not sell to such purchaser as provided above, then any future proposed sale of such Property shall be subject to the provisions of Section 15.2 and, if applicable, Section 15.3.

	15.3.2 Sale to Tenant. If Tenant elects to exercise its Right of First Refusal and purchase the ROFR Property that is the subject of the Third Party Offer Notice, then such sale to Tenant shall be on the same terms and conditions in all material respects as those set forth in the contract of sale provided to Tenant in connection with the delivery of the Third Party Offer Notice. The closing of any such sale to Tenant shall occur in accordance with the terms and conditions of such contract of sale. Upon conveyance of any such ROFR Property to Tenant pursuant to this paragraph, such ROFR Property shall be deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.

	15.3.3 Certain Exempt Transactions. Notwithstanding anything to the contrary contained herein, Tenant’s Right of First Refusal shall not apply to any of the following transactions: (a) the grant of a bona fide Fee Mortgage to an Institutional Lender or other unaffiliated lender; (b) any conveyance pursuant to such a Fee Mortgage; (c) subject to Section 15.6, any conveyance to an entity (i) into which or with which Landlord, the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as the case may be, merges, or (ii) which acquires Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or all or substantially all of the assets of such entity, as the case may be, or (d) any subsequent conveyance(s) by anyone whose title derives directly or indirectly from any conveyance described in clause (b) of this Section.

15.4 Landlord’s Mortgages. This Restated Lease shall be subject and subordinate to all existing Fee Mortgages and to all subsequent Fee Mortgages and the rights of holders of such Fee Mortgages, provided, in each case, that a non-disturbance agreement is obtained whereunder Tenant’s rights under this Restated Lease will not be disturbed upon any foreclosure or other exercise of remedies under a Fee Mortgage as long as a Material Monetary Event of Default is not in existence at the time of such foreclosure or such other exercise or remedies, and is otherwise substantially identical to the form set forth on Exhibit K. This Restated Lease and Leasehold Estate hereunder shall be prior and superior to all existing and subsequent Fee Mortgages where a non-disturbance agreement has not been obtained, except as otherwise set forth in a Third Party Lease. Notwithstanding the foregoing, with respect to the Fleet Mortgage, Landlord shall (a) cause the holder of the Fleet Mortgage to enter into a non-disturbance agreement substantially identical to the form set forth on Exhibit K; or (b) cause such

Fee Mortgage to be discharged of record, in either case on or prior to the Restatement Effective Date. With respect to any Fee Mortgage encumbering Landlord’s interest in any Property as of the date hereof, which Fee Mortgage is set forth on Exhibit I, Landlord shall request that the holder of such Fee Mortgage enter into a non-disturbance agreement in a form customary for a single-site purchase money mortgage transaction similar to the transaction consummated between the holder of such Fee Mortgage and Landlord or its predecessor in interest, which non-disturbance agreement shall be reasonably acceptable to Tenant. In the event that (a) Landlord is unable to cause the holder of such Fee Mortgage to enter into such non-disturbance agreement and (b) a default occurs under the applicable Fee Mortgage, which default was not caused by Tenant, a Subtenant or their respective agents, employees, contractors, licensees or invitees, then Landlord shall cause such Fee Mortgage to be discharged of record prior to the time that a foreclosure or other exercise of remedies under such Fee Mortgage occurs such that the applicable Property is deleted from this Restated Lease. If Landlord is unable to cause such Fee Mortgage to be discharged of record and the applicable Property is deleted from this Restated Lease, Landlord shall Indemnify Tenant for all losses, damages and expenses suffered by Tenant as a result of such foreclosure or other exercise of remedies.

15.5 Termination of Purchase Option on Conveyance of Fee Estate. Notwithstanding anything to the contrary contained herein, any unrelated bona fide purchaser of the Fee Estate of any Property shall in no event be bound, as to subsequent conveyances, by Tenant’s Right of First Offer or Tenant’s Right of First Refusal, except as otherwise set forth in Section 15.6.

15.6 Sale of Premises; Mergers. Notwithstanding anything to the contrary contained herein, including, without limitation, clause (c) of Section 15.2.1 and clause (c) of Section 15.3.3, in the event that Landlord conveys the Premises or substantially all of the Properties to a single Person, this Restated Lease shall remain in full force and effect as a lease between such purchaser, as Landlord, and Tenant for the Premises or for such Properties, as applicable. Without limiting the generality of the foregoing, such purchaser shall be bound, as to subsequent conveyances, by Tenant’s Right of First Offer and Tenant’s Right of First Refusal. In the event that any entity merges with Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or acquires substantially all of the assets of Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor, such merged or successor entity shall be bound by the provisions of Section 15.1 with respect to any subsequent conveyance of the Fee Estate of any Property or such entity’s interest therein, including, without limitation, Tenant’s Right of First Offer and Tenant’s Right of First Refusal.

15.7 Zoning Lots. Without Tenant’s prior written consent, which Tenant shall not unreasonably withhold, Landlord shall not enter into, and shall prevent the Leemilt’s Lessor, the Power Test Lessor, and the Gettymart Lessor from entering into, any agreement or instrument by which any Property is combined with any other real property for purposes of any Law governing zoning, bulk, development rights, or any similar matter, or by which any rights arising under such Laws to develop any Property is transferred to any other real property.


	15.8 Fleet Mortgage

	15.8.1 Nondisturbance. Landlord shall be permitted to refinance the Fleet Mortgage only if Landlord obtains from the prospective lender a subordination, nondisturbance, and attornment agreement substantially in the form of Exhibit K (an “SNDA”) whereunder Tenant’s rights under this Restated Lease will not be disturbed upon any foreclosure or other exercise of remedies under the documents evidencing or securing such refinancing (a “Foreclosure”) as long as a Material Monetary Event of Default is not in existence at the time of such foreclosure or such other exercise of remedies, and providing such other assurances as are set forth in such Exhibit K.

	15.8.2 Foreclosure of Property. If any Property is transferred or sold pursuant to a Foreclosure under the Fleet Mortgage, then this Restated Lease shall terminate as to such Property as of the date of such transfer; Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures; and the amount held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.

	15.8.3 Post-Closing Undertaking. Within 180 days of the Restatement Effective Date, Landlord shall either (i) pay off and otherwise satisfy all outstanding obligations under the Fleet Mortgage and deliver to Tenant a document executed and delivered by Fleet National Bank in form and substance reasonably satisfactory to Tenant evidencing such satisfaction or (ii) deliver to Tenant an SNDA executed by the holder of the Fleet Mortgage as such Fleet Mortgage may have been modified or amended (a “Fleet SNDA”). If Landlord fails to comply with the provisions of the preceding sentence when and as required to do so, then Tenant shall be entitled to an offset of $50,000 per month (prorated daily) against Fixed Rent, so long as such failure continues.

	15.8.4 Indemnification Regarding Failure to Obtain SNDA. Landlord shall Indemnify Tenant from and defend and hold Tenant harmless from and against any and all actual loss (including lost profits relating to the affected Properties), costs, claims, liability, penalties, judgements, damage or other injury, detriment, or expense (including Legal Costs, interest and penalties) actually incurred or suffered by Tenant (collectively, “Costs”) on account of Landlord’s failure to deliver a Fleet SNDA, as such Costs are directly related to Tenant’s business activities at the affected Properties, the Fleet Mortgage, or any replacement for the Fleet Mortgage or for the loan secured by the Fleet Mortgage. In the event that a court of competent jurisdiction enters a final, non-appealable judgment or order confirming the occurrence of any event allowing Tenant to recover under the foregoing Indemnity, then Tenant shall have the right to offset against any payment of Fixed Rent due hereunder an amount equal to the damages suffered by Tenant as a result of such Costs, as set forth in such final order or judgment. In the event that Tenant elects to offset any amount against Fixed Rent in accordance with this Section 15.8.4, Tenant shall give Landlord Notice of such election to offset at least twenty (20) days prior to effecting the same, which Notice shall include the amount of damages set forth in such final order or


	judgment, the amount that Tenant plans to offset, and the timing of such offset. Nothing contained in this Section shall be deemed to limit Tenant’s right to offset Rent pursuant to the express provisions of Section 3.5

	15.8.5 Representations and Warranties. Landlord hereby represents and warrants to Tenant that (i) attached as Schedule 16 is a list of all Properties encumbered by the Fleet Mortgage and (ii) neither the consummation of the transactions contemplated under the Merger Agreement nor the execution and delivery of this Restated Lease shall violate or breach any of the provisions of the Fleet Mortgage pursuant to a waiver by Fleet National Bank which shall be effective through January 31, 2001.

16. TRANSFERS BY TENANT.

16.1 Tenant’s Limited Right. Except as specifically provided in Article 26 and Section 26.2, Tenant may not assign, mortgage, pledge or transfer this Restated Lease (collectively, a “Transfer”) without Landlord’s consent, which consent shall not be unreasonably withheld, conditioned or delayed provided that the assignee is no less creditworthy than Tenant immediately prior to such Transfer. Tenant may not assign any part(s) of this Restated Lease (i.e. less than the Premises) under any circumstance whatsoever. Any permitted assignee of Tenant shall assume all obligations and liabilities of Tenant under this Restated Lease. Notwithstanding the foregoing, the initial Tenant and all subsequent Tenants shall remain jointly and severally liable and responsible for all liabilities, responsibilities and obligations of Tenant under this Restated Lease, whether accruing prior to, at the time of, or after any such permitted assignment. Tenant shall promptly Notify Landlord of the completion of any approved Transfer.

16.2 Permitted Assignments. Notwithstanding anything to the contrary contained in Section 26.1, Tenant, without Landlord’s prior consent, and subject to the terms of any applicable Third Party Lease, may assign all but not any part of this Restated Lease (i.e. the Premises) to (i) Leasehold Mortgagee, or (ii) an entity into which or with which Tenant merges or which acquires all or substantially all of Tenant’s assets, provided that the merged or resulting entity is, at the time of the merger, and remains, at all times throughout the Term, an entity formed or incorporated under the Laws of any state or commonwealth of the United States and in good standing under the Laws of such state or commonwealth.

16.3 Tenant’s Right to Sublet. Subject to the terms of any applicable Third Party Lease, Tenant may enter into a Sublease for any lawful purpose, extend, renew or modify any Sublease, consent to any subleasing (or further levels of subleasing) (all of which shall be within the defined term “Sublease,” and the occupants thereunder shall all be deemed “Subtenants”), terminate any Sublease or evict any Subtenant, all without Landlord’s consent. The term of any Sublease (including renewal options thereof) shall not extend beyond the Term (including only any Renewal Options previously exercised by Tenant). In the event that Tenant enters into a Sublease of a Property for lawful purposes other than as a Service Station Property or a Petroleum Terminal Property, Tenant shall at its expense remove all USTs, above-ground tanks and related piping, and contaminated soil at such Property, if any, if and to the extent required by applicable Law or Environmental Law. Thereafter, notwithstanding anything to the

contrary contained herein, Tenant shall at its expense complete all environmental investigations and/or remediations as may be required by any Government, except to the extent that Landlord is required to complete such investigations and/or Remediation pursuant to Section 7.6 or Section 9.1. Tenant hereby assigns, transfers and sets over to Landlord all of Tenant’s right, title, and interest in and to each Sublease entered into by Tenant from time to time, together with all subrents or other sums of money due and payable under such Sublease and all security deposited with Tenant under such Sublease. Such assignment shall, however, become effective and operative only if this Restated Lease shall expire or be terminated or canceled, or if Landlord re-enters or takes possession of the Premises pursuant to this Restated Lease, following (in either case) the expiration of all applicable cure periods. Notwithstanding the foregoing, Tenant agrees that, upon the request of Landlord, all subtenancies, as specified by Landlord, will be terminated before the expiration, termination or cancellation of this Restated Lease. Notwithstanding anything to the contrary contained herein, all Subleases shall be subject and subordinate to the terms and conditions of this Restated Lease (as this Restated Lease may be renewed, amended, supplemented, modified, replaced or restated from time to time) and, unless Landlord elects otherwise, shall automatically terminate upon any termination of this Restated Lease.

16.4 Subleases with Single Purpose Entities. In the event that Tenant subleases the Premises or all or any portion of any Property to a bankruptcy-remote single purpose entity or any similar entity that is an Affiliate and/or Subsidiary of Tenant in connection with any subleasehold financing, Landlord shall enter into and cause the Leemilt’s Lessor, the Power Test Lessor, and the Gettymart Lessor to enter into (and shall request that the holder of any Fee Mortgage and any applicable Third Party Lessor enter into) a non-disturbance agreement with such Subtenant whereunder such Subtenant’s rights under such Sublease will not be disturbed upon any termination of or other exercise of remedies under this Restated Lease (or the termination of any superior estate, if applicable) and which provides such other similar assurances as such Subtenant shall reasonably request; provided that (i) such Sublease is on terms no less favorable to Landlord with respect to the Property or Properties demised thereunder than the corresponding terms hereunder, (ii) such financing is provided by a Permitted Leasehold Mortgagee, and (iii) there shall be no more than 50 such subleasehold financings outstanding at any point in time.

16.5 No Release. No Transfer or Sublease shall affect or reduce any of Tenant’s obligations or Landlord’s rights under this Restated Lease. All obligations of Tenant under this Restated Lease shall continue in full force and effect notwithstanding any Sublease or Transfer.

17. QUIET ENJOYMENT.

Landlord covenants that, so long as Landlord has not terminated this Restated Lease on account of a Material Monetary Event of Default by Tenant, Tenant shall and may peaceably and quietly have, hold and enjoy the Premises for the Term without molestation or disturbance by or from Landlord or anyone claiming by or through Landlord or having title to the Premises paramount to Landlord, and free of any encumbrance created or suffered by Landlord, except Permitted Exceptions, provided, however, that the foregoing shall not apply if Landlord

loses possession under a Third Party Lease for any reason other than Landlord’s default thereunder, which was not caused by a corresponding default by Tenant hereunder.

18. DEFAULT BY TENANT; REMEDIES.

18.1 Definition of “Event of Default” The term “Event of Default” shall mean and refer to the occurrence of any one or more of the circumstances.


	18.1.1 Material Monetary Default. An Event of Default shall be deemed to have occurred if a Material Monetary Default shall occur and the Material Monetary Default shall continue and not be remedied for ten (10) days after Landlord has given Tenant Notice of such Material Monetary Default, specifying in reasonable detail the amount of money required to be paid by Tenant and the nature of such payment (any such Event of Default being referred to hereinafter as a “Material Monetary Event of Default”). Notwithstanding the foregoing, if a Material Monetary Default relating to Tenant’s failure to maintain any of the insurance coverage required in Article 12 shall occur, a Material Monetary Event of Default with respect thereto shall not be deemed to have occurred unless such Material Monetary Default shall continue and not be remedied for sixty (60) days after receipt of Landlord’s Notice, provided that Tenant shall, promptly upon the occurrence of such Material Monetary Default, and at all times until such Material Monetary Default is cured, maintain insurance coverage substantially equivalent, as reasonably determined by Landlord, to the insurance coverage to which such Material Monetary Default relates.

	18.1.2 Non-Material Monetary Default. An Event of Default shall be deemed to have occurred if a Non-Material Monetary Default shall occur and the Non-Material Monetary Default shall continue and not be remedied for twenty (20) days after Landlord has given Tenant Notice of such Non-Material Monetary Default, specifying in reasonable detail the amount of money required to be paid by Tenant and the nature of such payment (any such Event of Default being referred to hereinafter as a “Non-Material Monetary Event of Default”).

	18.1.3 Non-Monetary Default. An Event of Default shall be deemed to have occurred if (a) except as otherwise provided in clause (b) or (c) hereof, a Non-Monetary Default shall occur and the Non-Monetary Default shall continue and not be remedied by Tenant within 30 days after Landlord shall have delivered to Tenant a Notice describing the same in reasonable detail; (b) in the case of a Non-Monetary Default (other than a Bankruptcy Default) that cannot with due diligence be cured within 30 days from such Notice, Tenant shall not (x) within 30 days from Landlord’s Notice advise Landlord of Tenant’s intention to take all reasonable steps necessary to remedy such Non-Monetary Default, (y) duly commence the cure of such Non-Monetary Default within such period, and then diligently prosecute to completion the remedy of the Non-Monetary Default and (z) complete such remedy within a reasonable time under the circumstances; or (c)


		a Bankruptcy Default occurs (any such Event of Default being referred to hereinafter as a “Non-Monetary Event of Default”).

	Non-Monetary Defaults shall include, without limitation, a default under any Third Party Lease, the Leemilt’s Lease, any Power Test Lease, the Gettymart Lease or under the provisions of a Fee Mortgage as a result of any action or failure to act by Tenant, Subtenant or their respective agents, contractors, employees, invitees or licensees in violation of the provisions of this Restated Lease.

18.2 Remedies for Material Monetary Event of Defaults. If a Material Monetary Event of Default occurs, then Landlord shall, at Landlord’s option, have any or all of the following remedies, all of which shall be cumulative (so that Landlord’s exercise of one remedy shall not preclude Landlord’s exercise of another remedy), in addition to such other remedies as may be available at law or in equity or pursuant to any other terms of this Restated Lease. Landlord’s remedies shall include, without limitation:


	18.2.1 Termination of Tenant’s Rights. Upon ten (10) days’ notice, Landlord may terminate Tenant’s right to possession of the Premises by any lawful means, in which case this Restated Lease shall terminate (and such date of termination shall be the Termination Date) and Tenant shall immediately surrender possession of the Premises to Landlord.

	18.2.2 Taking of Possession. Landlord may re-enter and take possession of the Premises or any Property with or without process of law and remove Tenant, with or without having terminated this Restated Lease. This is intended to constitute an express right of re-entry on Landlord’s part.

	18.2.3 Security Devices. Subject to applicable Laws, Landlord may change the locks and other security devices providing admittance to the Premises or any Property.

	18.2.4 Injunction of Tenant’s Breaches. Landlord shall be entitled to obtain a court order enjoining Tenant from continuing conduct constituting a breach of Tenant’s covenants in this Restated Lease. Tenant specifically acknowledges that damages would not constitute an adequate remedy for Tenant’s breach of any non-monetary covenant contained in this Restated Lease.

	18.2.5 Damages. Landlord may recover from Tenant all damages incurred by Landlord by reason of Tenant’s Default, including, without limitation, the costs of recovering possession, reletting the Premises, and any and all other damages legally recoverable by Landlord. Such damages shall include, at Landlord’s election, either (a) the Rent provided for in this Restated Lease, when and as due and payable pursuant to this Restated Lease, less (in the case of this clause (a) only) Landlord’s actual proceeds of reletting net of Landlord’s actual reasonable costs of reletting, or (b) the entire amount of Rent due for the entire Term (or Renewal Term, if applicable) shall accelerate and immediately become


	due and payable, as the same shall be discounted to its then present value, using a discount rate equal to the then current semi-annual yield to maturity of a United States Treasury security having a maturity of ten (10) years. Landlord may recover such damages at any time after Tenant’s default, including after expiration of the Term.

	18.2.6 Continue Lease. Landlord may at Landlord’s option maintain Tenant’s right to possession, in which case this Restated Lease shall continue in effect and Landlord shall be entitled to continue to enforce this Restated Lease, including the right to collect Rent and the right to any remedies for nonpayment.

18.3 Remedies for Other Events of Default. If a Non-Monetary Event of Default or a Non-Material Monetary Default occurs, Landlord shall, at Landlord’s option, have either or both of the following remedies, both of which shall be cumulative (so that Landlord’s exercise of one remedy shall not preclude Landlord’s exercise of the other remedy):


	18.3.1 Injunction of Tenant’s Breaches. Landlord shall be entitled to obtain a court order enjoining Tenant from continuing conduct constituting a breach of Tenant’s covenants in this Restated Lease or compelling specific performance of Tenant’s covenants under this Restated Lease. Tenant specifically acknowledges that damages would not constitute an adequate remedy for Tenant’s breach of any non-monetary covenant contained in this Restated Lease.

	18.3.2 Damages. Landlord may recover from Tenant all monetary damages whatsoever incurred by Landlord by reason of Tenant’s Default, subject to the provisions of Section 32.11.

18.4 Mitigation of Damages. Landlord agrees to take all commercially reasonable steps necessary or appropriate to mitigate any damages that Landlord may suffer on account of an Event of Default under this Restated Lease. Without limiting the preceding sentence, in the event of a Material Monetary Default, Landlord shall diligently endeavor to relet the Premises under any circumstances where such reletting would mitigate Landlord’s damages, provided, however, that Landlord shall only be obligated to relet or sell the Premises or any Property in a manner consistent with fair market economic conditions at that time and other terms and conditions customary at that time. Any such reletting shall not constitute a surrender or an acceptance of a surrender of the Premises. In light of the fact that Landlord and Tenant intend for this Restated Lease to be a single, unitary Lease, Landlord shall, in its mitigation efforts, endeavor to lease or sell the Premises (i.e. all of the Properties). Notwithstanding the foregoing, however, as a consideration to Tenant for agreeing to the single, unitary lease concept, Landlord agrees that if after a reasonable period of time (not to exceed six (6) months), it cannot sell or lease the Premises (i.e. all of the Properties), it shall be obligated to mitigate damages on a Property by Property basis.

18.5 Tenant’s Late Payments. If Tenant makes any payment required under this Restated Lease after such payment is first due and payable, then in addition to any other remedies Landlord may have under this Restated Lease, and without reducing or adversely affecting any of

Landlord’s other rights and remedies, Tenant shall pay Landlord within twenty (20) days after demand interest on such late payment, at an interest rate equal to the Prime Rate plus three (3) percent, beginning on the date such payment was first due and payable and continuing until the date when Tenant actually makes such payment.

18.6 Landlord’s Right to Cure. If Tenant shall at any time fail to make any payment or perform any other act on its part to be made or performed pursuant to this Restated Lease and such failure continues beyond any applicable notice or cure period, then Landlord, after ten (10) Business Days’ Notice to Tenant, or with such notice (if any) as is reasonably practicable under the circumstances in case of an emergency, and without waiving or releasing Tenant from any obligation of Tenant or from any Default by Tenant and without waiving Landlord’s right to take such action as may be permissible under this Restated Lease as a result of such Default, may (but shall be under no obligation to) make such payment or perform such act on Tenant’s part to be made or performed pursuant to this Restated Lease. Landlord may enter upon any Property for such purpose, and take all such action on any such Property, as may be reasonably necessary under the circumstances, but in doing so shall not unreasonably interfere with the conduct of operations on any such Property by Tenant or anyone claiming through Tenant and shall comply with Tenant’s reasonable instructions. Tenant shall reimburse Landlord, as Additional Rent (within twenty (20) days after Notice from Landlord accompanied by reasonable backup documentation), for all actual, out-of-pocket sums paid by Landlord and all actual costs and expenses reasonably incurred by Landlord, together with Landlord’s Legal Costs, in connection with the exercise of Landlord’s cure rights under this Section.

18.7 Holding Over. The parties recognize and agree that if for any reason or no reason Tenant remains in the Premises after the Termination Date, then Landlord will suffer injury that is substantial, difficult or impossible to measure accurately. Therefore, if both (a) Tenant remains in the Premises after the Termination Date (for any month or partial month), for any reason or no reason, and (b) either (i) Landlord at any time gives Tenant Notice that Landlord elects to require Tenant to pay the liquidated damages described in this Section or (ii) as of the date 31 days after the Termination Date, Landlord has not commenced holdover proceedings against Tenant or otherwise proceeded to remove Tenant from the Premises, then in addition to any other rights or remedies available to Landlord, Tenant shall pay to Landlord, as liquidated damages and not as a penalty, for each month (or portion of a month) during which Tenant holds over in the Premises after the Termination Date, a sum equal to: 110% (for the first month or partial month of holding over), 120% (for the second month or partial month of holding over), and 150% (for each subsequent month or partial month of holding over) times the Rent, including Additional Rent, payable under this Restated Lease for the month in which the Termination Date occurs.

18.8 Waivers. Landlord and Tenant irrevocably waive all rights to trial by jury in any action, proceeding, counterclaim or other litigation arising out of or relating to this Restated Lease, the relationship of Landlord and Tenant under this Restated Lease, the enforcement of this Restated Lease, Tenant’s use or occupancy of the Premises, any claim of injury or damage arising between Landlord and Tenant, or any actions of Landlord in connection with or relating to the enforcement of this Restated Lease. Tenant waives any right of redemption provided for by Law.

18.9 Accord and Satisfaction; Partial Payments by Tenant. No payment by Tenant or receipt by Landlord of a lesser amount than the amount required to be paid by Tenant under this Restated Lease shall be deemed to be other than a payment on account by Tenant, nor shall any endorsement or statement on any check or any letter accompanying any check or payment of Rent be deemed an accord or satisfaction. Landlord may accept any such check or payment without prejudice to Landlord’s right to recover the balance of such Rent or pursue any other remedy for nonpayment, including termination of this Restated Lease and commencement of a summary dispossess proceeding. Notwithstanding any endorsement on any check or any statement to the contrary in any letter accompanying any check or payment, Landlord shall apply any partial payments of back Rent made by Tenant to the oldest outstanding Rent under this Restated Lease, except to the extent Landlord elects otherwise in its sole and absolute discretion.

18.10 Accord and Satisfaction; Partial Payments by Landlord. No payment by Landlord or receipt by Tenant of a lesser amount than the amount required to be paid by Landlord under this Restated Lease shall be deemed to be other than a payment on account by Landlord, nor shall any endorsement or statement on any check or any letter accompanying any check or payment made pursuant to the terms of this Restated Lease be deemed an accord or satisfaction. Tenant may accept any such check or payment without prejudice to Tenant’s right to offset the balance of the amount required to be paid by Landlord to Tenant against Tenant’s payment of the Rent as may be specifically permitted under this Restated Lease.

18.11 Cross-Default. Any default under a Third Party Lease that remains uncured beyond the applicable grace and/or notice period that is caused by the failure of Tenant to comply with its obligations hereunder shall be a Non-Monetary Event of Default under this Restated Lease.

19. TERMINATION.

Upon the Termination Date of this Restated Lease with respect to the Premises or any Property pursuant to Article 13, 14, 15, 22 or 25, all Tenant Improvements and in service USTs constituting part of the Premises or such particular Property, as applicable, shall, subject to the rights of Third Party Lessors, become Landlord’s property (subject to Permitted Exceptions), and Tenant shall deliver to Landlord possession of the Premises or such Property, as applicable (including, without limitation, all Improvements thereon), in good condition and state of repair, free of material violations of Law and Environmental Law, free of Hazardous Substances (other than Hazardous Substances (i) customarily maintained at the Premises or such Property, as applicable, in the ordinary course of the business being conducted thereon in material compliance with Environmental Laws, and (ii) to the extent such Hazardous Substances constitute Contamination Landlord is Remediating pursuant to Section 9.1) free of all liens of mechanics, laborers or materialmen and all other liens and encumbrances other than any such liens and encumbrances incurred by Landlord, the Leemilt’s Lessor, the Power Test Lessor, the Gettymart Lessor or a Third Party Lessor arising from such party’s acts, and free of all Subleases and tenancies, except to the extent Landlord elects otherwise pursuant to Section 16.3 hereof. In addition, upon such termination Tenant shall assign to Landlord, without recourse, all assignable licenses and permits affecting the Premises or such Property, as applicable, and all assignable contracts, warranties and guarantees then in effect relating thereto, together with all unpaid

insurance awards and rights against insurance carriers as to then-existing insurance claims relating thereto. Tenant shall also deliver to Landlord any unapplied building insurance proceeds in Tenant’s possession. Tenant shall remove from the Premises or such Property, as applicable, upon the Termination Date with respect to the Premises or such Property, as applicable, all Personal Property. Tenant shall, at its sole cost and expense, repair any damage to the Premises or such Property caused by the removal of all Personal Property. If Tenant fails to remove from the Premises or any Property, as applicable, any Personal Property within thirty (30) days of the Termination Date, then such Personal Property shall be deemed abandoned and may be used or disposed of by Landlord without compensation to Tenant. Notwithstanding anything to the contrary contained in this Restated Lease, if Landlord so elects by Notice to Tenant at least six (6) months before the expiration of the Term (or if Tenant fails to timely notify Landlord of its election not to exercise any Renewal Option granted hereunder or this Restated Lease is terminated prior to the end of the Term, then within a reasonable period of time under the circumstances), Tenant shall, at its sole cost and expense, remove under applicable Environmental Law at or prior to the Termination Date all USTs identified by Landlord in such Notice and all Contamination, if any, associated therewith. Tenant shall continue to completion after the Termination Date all Remediations to the extent required by Environmental Law and shall continue to pay Rent (including Additional Rent) for any Property rendered substantially unusable because of any such Remediation until such time as such Property becomes usable for its use immediately prior to the time at which such Remediation began or, if such Property can no longer be used for such use, then until such time as such Property becomes usable for any other lawful use. Notwithstanding the foregoing, Tenant’s obligations pursuant to the preceding sentence to continue Remediation and to continue to pay Rent shall cease on the date when such Property has received Closure for Tenant’s Remediation. Nothing contained in this Article 19 shall in any way diminish or otherwise affect Tenant’s indemnification obligations set forth in Article 10.

20. NOTICES.

20.1 Generally. All Notices shall be in writing and shall be addressed to Landlord and Tenant as set forth below. Notices shall be (i) delivered personally to the addresses set forth below, (ii) by Federal Express or other courier service to the addresses set forth below, in which case they shall be deemed delivered on the date of delivery (or when delivery has been attempted twice, as evidenced by the written report of the courier service) to the address(es) set forth below; or (iii) sent by certified mail, return receipt requested, in which case they shall be deemed delivered upon receipt. Either party may change its address by giving Notice in compliance with this Restated Lease. Notice of such a change shall be effective only upon receipt. The addresses of the parties are:


	Landlord: 125 Jericho Turnpike, Jericho, New York 11753 Attention: Real Estate Manager

	With a copy to: Latham & Watkins, 885 Third Avenue,
	New York, New York 10022
	Attention: Richard L. Chadakoff, Esq.


	Tenant: 125 Jericho Turnpike, Jericho, New York 11753
	Attention: President

	With a copy to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
	590 Madison Avenue, New York, New York 10022
	Attention: Robert G. Koen, Esq.

A copy of all such Notices shall also be contemporaneously delivered in the manner set forth herein to Leasehold Mortgagee, provided that Leasehold Mortgagee shall have provided Landlord with Notice of its name and address and a copy of its Permitted Leasehold Mortgage. Getty Properties Corp. shall be treated as “Landlord” for all purposes hereunder such that any Notice or other communication delivered to Getty Properties Corp. by Tenant or received by Tenant from Getty Properties Corp. shall be deemed Notice delivered to Landlord or received from Landlord (which term “Landlord” includes those subsidiaries of Getty Properties Corp. who have approved this Restated Lease on the signature page hereof), as applicable. In addition, any Notice or other communication delivered to Getty Properties Corp. by Tenant or received by Tenant from Getty Properties Corp. shall be deemed Notice delivered by Tenant to the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor, as applicable, or received by the Leemilt’s Lessor, the Power Test Lessor, or the Gettymart Lessor from Tenant, as applicable.

20.2 Defaults Under Other Agreements. In the event that Landlord receives notice of the occurrence of any default with respect to any Third Party Lease, the Leemilt’s Lease, the Power Test Lease, or the Gettymart Lease, Landlord shall promptly provide Tenant and, if required to do so pursuant to Section 20.1, Leasehold Mortgagee, with Notice of such default. In the event that Landlord receives notice of the occurrence of any default with respect to any Fee Mortgage encumbering Landlord’s, the Leemilt’s Lessor’s, the Power Test Lessor’s, the Gettymart Lessor’s or a Third Party Lessor’s interest in any Fee Estate, Landlord shall endeavor to provide Tenant and, if required to do so pursuant to Section 20.1, Leasehold Mortgage, with Notice of such default reasonably promptly. In the event that Tenant receives notice of any default under a Permitted Leasehold Mortgage or Sublease, Tenant shall provide Landlord with Notice of such default.

21. NO BROKER.

Landlord and Tenant each represents and warrants to each other that it did not engage any broker or finder in connection with this Restated Lease and that no person is entitled to any commission or finder’s fee on account of any agreements or arrangements made by such party with any broker or finder. Each party shall Indemnify the other party against any breach of the foregoing representation by the Indemnitor.

22. THIRD PARTY LEASES.

22.1 Subordination; Conflict. The rights of Tenant hereunder are at all times subject to the terms and provisions of the Third Party Leases (subject to the applicable provisions of Sections 7.6, 9.1, 25.1 (with respect to Landlord’s inability to declare a Non-Monetary Default for a Preexisting Violation (as hereinafter defined) as of the Restatement Effective Date, but

without in any way diminishing Landlord’s right to claim a Default for Tenant’s failure to comply with its obligations under Sections 25.2 and 25.3 hereof), 25.2, 25.3, and 30.1.11 and the Environmental Agreement), and Tenant agrees, subject to such applicable provisions of this Restated Lease and the Environmental Agreement, to perform in all material respects all of Landlord’s obligations, as lessee, to be performed by it under the Third Party Leases’ initial terms and all renewal terms except that Landlord shall remit and be obligated for the fixed or base rent due to the Third Party Lessors. Notwithstanding the foregoing and subject to the provisions of Sections 7.6, 9.1, 25.1 (with respect to Landlord’s inability to declare a Non-Monetary Default for a Preexisting Violation as of the Restatement Effective Date, but without in any way diminishing Landlord’s right to claim a Default for Tenant’s failure to comply with its obligations under Sections 25.2 and 25.3 hereof), 25.2, 25.3, and 30.1.11 and the Environmental Agreement, to the extent that any failure to perform any of Landlord’s obligations under a Third Party Lease would cause a default to occur under such Third Party Lease, Tenant shall perform such Landlord’s obligation. In the event that there is any conflict between the terms and conditions of this Restated Lease and the terms and conditions of any Third Party Lease, the terms and conditions of such Third Party Lease shall control, except with respect to rental payments due thereunder. In the event that any Third Party Lease is terminated for any reason, Tenant acknowledges and agrees that the term of this Restated Lease as applicable to the Property subject to such Third Party Lease shall end thirty (30) days prior to the termination of such Third Party Lease. If a Third Party Lessor claims that any default has occurred under any Third Party Lease, Landlord, at the request of and at the sole cost and expense of Tenant, shall timely institute and diligently prosecute any action or proceeding which Tenant, in its reasonable judgment, deems meritorious, in order to contest the existence of such alleged default under such Third Party Lease. Tenant shall Indemnify and hold harmless Landlord from and against any and all such claims arising from or in connection with such request, action or proceeding. This indemnity and hold harmless agreement shall include indemnity from and against any and all liability, fines, suits, demands, costs and expenses of any kind or nature, including, without limitation, Legal Costs incurred in connection with any such claim, action or proceeding brought thereon. Tenant shall not make any claim against Landlord for any damage which may arise, nor shall Tenant’s obligations hereunder be diminished, by reason of (i) the failure of any such Third Party Lessor to keep, observe or perform any of its obligations pursuant to the applicable Third Party Lease, or (ii) the acts or omissions of any such Third Party Lessor, or of its agents, contractors, servants, employees, invitees or licensees.


	22.2 Renewal Options.

	22.2.1 Fixed Rental. For any Third Party Lease that contains a Third Party Lease Renewal Option that specifies the rent that will be due and payable during the renewal period or provides a formula through which such rent is or will be ascertainable, Landlord shall exercise any such Third Party Lease Renewal Option exercisable during the Initial Term and applicable Renewal Term, and Tenant shall continue to sublease any Property subject to any such Third Party Lease during the Initial Term and the applicable Renewal Term, as applicable, on all of the terms and conditions contained in this Restated Lease. If Tenant does not exercise its Renewal Option for the Premises prior to the expiration of the Initial Term or the applicable Renewal Term pursuant to the express provisions of


	Section 2.1, then this Restated Lease shall be deemed terminated with respect to the Premises, including any Property with respect to which a Third Party Lease was renewed pursuant to the foregoing provisions, notwithstanding the fact that the end of the renewal term of any such Third Party Lease extends beyond the expiration of the Term of this Restated Lease. Notwithstanding the foregoing, if, not less than sixty (60) days prior to the date that notice is due to a Third Party Lessor pursuant to the terms of any such Third Party Lease with respect to the renewal thereof, Landlord and Tenant mutually agree in writing not to exercise the Third Party Lease Renewal Option contained in such Third Party Lease, then Landlord shall not be required to renew such Third Party Lease, and Tenant shall not be required to sublease the Property subject to such Third Party Lease. Upon the expiration of any such Third Party Lease with respect to which Landlord and Tenant mutually agree not to renew pursuant to the foregoing provisions, the Property subject to such Third Party Lease shall be deleted from this Restated Lease, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.

	22.2.2 Unspecified Rent. For any Property subject to a Third Party Lease which contains a Third Party Lease Renewal Option but does not specify the rent that will be due and payable during the renewal period or provide a formula through which such rent is or will be ascertainable, the following procedures shall apply. No less than one hundred twenty (120) days prior to the date notice is due to a Third Party Lessor with respect to the renewal of the applicable Third Party Lease, Tenant shall provide Landlord with Notice of (a) Tenant’s reasonable determination of the amount of Fixed Rent payable hereunder allocable to the Property subject to such Third Party Lease, which determination shall be made in accordance with the principles set forth in the Fixed Rent Adjustment Procedures (the “Original Term Rent Allocation”), and (b) the maximum amount of Fixed Rent which Tenant would be willing to pay hereunder with respect to such Property during the renewal period of the Third Party Lease to which such Property is subject (the “Maximum Renewal Term Rent Allocation”). Landlord shall then negotiate with such Third Party Lessor the rental that will be due and payable by Landlord during the renewal period of such Third Party Lease (such amount being hereinafter referred to as the “Third Party Lease Renewal Rental”), and promptly notify Tenant after the Third Party Lease Renewal Rental has been determined. If the sum of (i) the Third Party Lease Renewal Rental and (ii) the Third Party Lease Spread (such sum being hereinafter referred to as the “Renewal Term Rent Allocation”) is equal to or less than the Original Term Rent Allocation, then Tenant shall continue to sublease the Property subject to such Third Party Lease during the Term on all of the terms and conditions contained in this Restated Lease, except that the Fixed Rent due and payable hereunder shall be reduced by an amount equal to fifty (50) percent of the difference, if any, between the Original Term Rent Allocation and the Renewal Term Rent Allocation. If the Renewal

Term Rent Allocation is greater than the Original Term Rent Allocation but is less than or equal to the Maximum Renewal Term Rent Allocation, then Tenant shall continue to sublease such Property during the Term on all of the terms and conditions contained in this Restated Lease, except that the Fixed Rent due and payable hereunder shall be increased by an amount equal to the difference between the Renewal Term Rent Allocation and the Original Term Rent Allocation. If the Renewal Term Rent Allocation is greater than the Maximum Renewal Term Rent Allocation, then Landlord shall offer to continue to sublease such Property to Tenant on all terms and conditions contained in this Restated Lease, except that Landlord shall be entitled to require that the Fixed Rent due and payable hereunder be increased by an amount equal the difference between the Renewal Term Rent Allocation and the Original Term Rent Allocation if Tenant so elects to continue to sublease such Property. Tenant shall have thirty (30) days from receipt of Landlord’s offer to provide Landlord with Notice of Tenant’s election to continue to sublease such Property on such terms. If Tenant elects not to continue to sublease such Third Party Lease or fails to provide Landlord with Notice within such thirty-day period, then Landlord shall have the right, but not the obligation, to exercise its Third Party Lease Renewal Option with respect to such Property without any obligation owed to Tenant relating thereto. Notwithstanding the foregoing, if, not less than sixty (60) days prior to the date that notice is due to a Third Party Lessor pursuant to the terms of any such Third Party Lease with respect to the renewal thereof, Landlord and Tenant agree in writing not to exercise the Third Party Lease Renewal Option contained in such Third Party Lease, then Landlord shall not be required to renew such Third Party Lease, and Tenant shall not be required to sublease the Property subject to such Third Party Lease. If Tenant rejects or is deemed to reject Landlord’s offer to continue to sublease a Property pursuant to the provisions of this Section or if Landlord and Tenant agree not to renew pursuant to the foregoing provisions, then such Property shall be deleted from this Restated Lease, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.

22.3 Renewals. With respect to any Property subject to a Third Party Lease that does not contain a Third Party Lease Renewal Option and expires on or prior to the end of the Initial Term or then applicable Renewal Term, Landlord and Tenant shall each have a non-exclusive right to negotiate a renewal of such Third Party Lease or a direct lease with such Third Party Lessor under such Third Party Lease, as applicable. At the end of the current term of any such Third Party Lease, the Property subject to such Third Party Lease shall be deleted from this Restated Lease, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. Notwithstanding anything to the contrary contained herein, Tenant shall have the exclusive right, with respect to any twenty-five (25) of such Properties, to negotiate with the Third Party Lessor of the applicable Property until the date six (6) months prior to the expiration of such Third Party Lease by

providing Landlord with Notice of its election to assert its exclusive right with respect to such Property at least eighteen (18) months prior to the expiration of such Third Party Lease. If Tenant fails to enter into a direct lease with such Third Party Lessor before the date six (6) months prior to the expiration of said Third Party Lease, then each of Landlord and Tenant shall thereafter have a non-exclusive right to negotiate a renewal of such Third Party Lease or a direct lease, as applicable, with such Third Party Lessor without any obligation owed to the other party hereunder.


	Related Party Leases.

	22.4.1 Power Test Lease. Landlord shall cause the term of each Power Test Lease to be extended such that it shall not expire prior to the expiration of this Restated Lease, notwithstanding anything to the contrary contained herein or in any Power Test Lease. On or before the Restatement Effective Date, Landlord shall enter into a lease modification agreement with the Power Test Lessor substantially in the form set forth on Schedule 12.

	22.4.2 Leemilt’s Lease. Landlord shall cause the term of the Leemilt’s Lease to be extended such that it shall not expire prior to the expiration of this Restated Lease, notwithstanding anything to the contrary contained herein or in the Leemilt’s Lease. On or before the Restatement Effective Date, Landlord shall enter into a new lease with the Leemilt’s Lessor the in a form mutually acceptable to the parties hereto. In the event that this Restated Lease is terminated with respect to the Properties covered by the Leemilt’s Lease by operation of law as a result of the termination of the Leemilt’s Lease, this Restated Lease shall be reinstated with respect to such Properties as of the Restatement Effective Date simultaneously with the effectiveness of the new Leemilt’s Lease between Leemilt’s Lessor, as landlord and Landlord, as tenant. Landlord agrees to execute and/or cause Leemilt’s Lessor to execute any and all documents necessary to effectuate such reinstatement, including an amendment to the Leemilt’s Lease in form and substance reasonably satisfactory to Landlord. Landlord shall Indemnify Tenant from and defend and hold Tenant harmless from and against any and all actual loss (including lost profits related to the affected properties, costs, claims, liability, penalties, judgements, damage or other injury, detriment, or expense (including Legal Costs, interest and penalties) actually incurred or suffered by Tenant on account of the termination of the Leemilt’s Lease and subsequent failure by Landlord to effectuate the reinstatement of the Leemilt’s Lease promptly thereafter, as such costs are directly related to Tenant’s business activities at the affected Properties. In the event that a court of competent jurisdiction enteres a final, non-appealable judgment or order confirming the occurrence of any event allowing Tenant to recover under the foregoing Indemnity, the Tenant shall have the right to offset against any payment of Fixed Rent due hereunder an amount equal to the damages suffered by Tenant as a result of such costs, as set forth in such final order or judgement. In the event that Tenant elects to offset any amount against Fixed Rent in accordance with this Section 22.4.2, Tenant shall give Landlord Notice of such election to offset at least twenty (20) days prior to


	effecting the same, which Notice shall include the amount of damages set forth in such final order or judgment, the amount that Tenant plans to offset, and the timing of such offset. Nothing contained in this Section shall be deemed to limit Tenant’s right to offset Rent pursuant to the express provisions of Section 3.5.

	22.4.3 Gettymart Lease. Landlord shall cause the term of the Gettymart Lease to be extended such that it shall not expire prior to the expiration of this Restated Lease, notwithstanding anything to the contrary contained herein or in the Gettymart Lease. On or before the Restatement Effective, Landlord shall enter into a new lease with the Gettymart Lessor in a form mutually acceptable to the parties hereto.

	22.4.4 Renewal Options. Landlord hereby agrees that, as long as this Restated Lease has not been terminated in connection with the occurrence of a Material Monetary Event of Default, Tenant may exercise any and all of its renewal rights granted under the Power Test Lease, the Leemilt’s Lease and the Gettymart Lease on its behalf so as to cause the term of each such lease not to expire prior to the expiration of this Restated Lease

22.5 Termination of Third Party Lease. If a Third Party Lease shall terminate as a result of a default by Landlord under such Third Party Lease, which default did not result, either directly or indirectly, from the acts or omissions of Tenant, Subtenant or their respective agents, contractors, employees, licensees or invitees, then Landlord shall Indemnify Tenant with respect to such termination. If (a) the provisions of a Third Party Lease grant to Landlord, as tenant thereunder, the right to obtain a non-disturbance agreement from the holder of a Fee Mortgage encumbering the Fee Estate subject to such Third Party Lease whereunder the holder of such Fee Mortgage agrees that Landlord’s rights under such Third Party Lease will not be disturbed as a result of any foreclosure or other exercise of remedies under its Fee Mortgage, provided that Landlord is not in default under such Third Party Lease at the time of such foreclosure (such agreement being referred to hereinafter as a “Third Party Lease Non-disturbance Agreement”), and (b) Landlord fails to obtain such Third Party Lease Non-disturbance Agreement, then if such Third Party Lease shall terminate as a result of any foreclosure or other exercise of remedies under such Fee Mortgage (except as a result of the acts or omissions of Tenant, Subtenant, or their respective agents, contractors, employees, licensees or invitees), Landlord shall either, at Landlord’s election, (i) obtain a new lease with respect to the Property subject to such Third Party Lease, the terms of which do not increase Tenant’s obligations hereunder or reduce its rights hereunder in any material respects, including, without limitation, with respect to the payment of Rent, or (ii) pay Lease Termination Damages to Tenant. If (a) the provisions of a Third Party Lease grant to Landlord, as tenant thereunder, the right to obtain a Third Party Lease Non-disturbance Agreement and (b) Landlord, at any time after the date hereof, receives notice from the applicable Third Party Lessor that such Third Party Lessor intends to enter into a Fee Mortgage with respect to the Fee Estate subject to such Third Party Lease, then Landlord shall so inform Tenant and shall use its reasonable best efforts to cause the prospective holder of the Fee Mortgage to enter into a Non-disturbance Agreement with Landlord on such prospective holder’s customary form. Anything to the contrary contained herein notwithstanding, Landlord’s failure to obtain a Third Party Lease Non-disturbance Agreement shall in no event be deemed hereunder to

be a default by Landlord under the applicable Third Party Lease or hereunder. Unless Landlord obtains a new lease from the applicable Third Party Lessor pursuant to the preceding provisions, upon any termination or expiration of a Third Party Lease, the Property subject to such Third Party Lease shall be deemed deleted from this Restated Lease and, provided that such expiration or termination was not caused, directly or indirectly, by the acts or omissions of Tenant, Subtenant or their respective agents, contractors, employees, licensees or invitees, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly.

23. WAIVERS.

23.1 No Waiver by Silence. Failure of either party to complain of any act or omission on the part of the other party shall not be deemed a waiver by the noncomplaining party of any of its rights under this Restated Lease. All waivers must be in writing and signed by the party granting the same. No waiver by either party at any time of any breach of any provisions of this Restated Lease shall be a waiver of a breach of any other provision of this Restated Lease or a consent to any subsequent breach of the same or any other provision. No acceptance by Landlord of any partial payment shall constitute an accord or satisfaction but shall only be deemed a part payment on account.

23.2 No Landlord’s Lien. Landlord confirms and acknowledges that Landlord has no lien, right of distraint, or security interest in any Personal Property located in, on or at the Premises, and that such Personal Property shall not constitute security for payment of any Rent. If, at any time after the Restatement Effective Date, any statute or principle of law would grant Landlord any such lien or security interest, then Landlord hereby waives the benefit of any such statute and such lien. Landlord further agrees to execute documentation waiving its right to a Landlord’s lien in the form attached hereto as Schedule 11.

24. FURTHER ASSURANCES; ADDITIONAL DELIVERIES.

24.1 Estoppel Certificates. At any time and from time to time, upon not less than ten (10) Business Days’ prior written request by either party to this Restated Lease (the “Requesting Party”), the other party to this Restated Lease (the “Certifying Party”) shall execute, acknowledge and deliver to the Requesting Party (or directly to a third party whose name and address are provided by the Requesting Party) up to four original counterparts of an Estoppel Certificate. Any Estoppel Certificate may be relied upon by any third party to whom an Estoppel Certificate is required to be directed. At any time in connection with its proposed execution of a Permitted Leasehold Mortgage or other proposed financing and otherwise no more frequently than once every twelve (12) months, Tenant may (a) request that Landlord request that the Third Party

Lessors execute Third Party Lease Estoppel Certificates, (b) request that Landlord cause the Power Test Lessor to execute a Power Test Lease Estoppel Certificate, (c) request that Landlord cause the Leemilt’s Lessor to execute a Leemilt’s Lease Estoppel Certificate and (d) request that Landlord cause the Gettymart Lessor to execute a Gettymart Lease Estoppel Certificate. Upon Tenant making the request referred to in clause (a), (b), (c) or (d) of the preceding sentence, Landlord shall use reasonably diligent efforts to request that the Third Party Lessors execute the Third Party Lease Estoppel Certificates and shall cause the Power Test Lessor to execute the Power Test Lease Estoppel Certificate, the Leemilt’s Lessor to execute the Leemilt’s Lease Estoppel Certificate, and the Gettymart Lessor to execute the Gettymart Lease Estoppel Certificate. In addition, at such time as Tenant requests estoppel certificates pursuant to this Section in connection with any proposed financing, Tenant may require that Landlord request from any Third Party Lessor or Fee Mortgagee any consents or approvals that Tenant may be required to obtain from such parties in connection with such proposed financing.

24.2 Equipment Liens. If at any time or from time to time Tenant and/or Subtenant desires to enter into or grant any Equipment Liens that comply with the definition of such term, then upon Tenant’s and/or Subtenant’s request Landlord shall enter into such customary documentation (with a detailed description) with respect to the property leased or otherwise financed or encumbered pursuant to such Equipment Liens as Tenant and/or Subtenant shall request, providing for matters such as the following: (a) Landlord’s waiver of the right to take possession of such property upon occurrence of an Event of Default; and (b) customary agreements by Landlord to enable the secured party to repossess such property without damage to the applicable Property or Properties in the event of a default by Tenant and/or such Subtenant permitting such secured party to exercise remedies under its Equipment Lien, which customary documentation shall be substantially identical in all material respects to the form of Landlord’s Equipment Lien waiver attached hereto as Schedule 11 and made a part hereof. Any such Equipment Lien shall be subordinate to this Restated Lease.

24.3 Further Assurances. Each party agrees to execute and deliver such further documents, and perform such further acts, as may be reasonably necessary to achieve the intent of the parties with respect to Tenant’s leasing of the Premises from Landlord, as set forth in this Restated Lease.

25. OBLIGATIONS UNDER ORIGINAL LEASE.

25.1 Generally. All rights and obligations of Landlord and Tenant under the Original Lease shall remain unmodified and in full force and effect with respect to any period prior to the Restatement Effective Date, and nothing contained herein shall be deemed to restate, consolidate, amend or otherwise affect any rights or obligations thereunder with respect to any period prior to the Restatement Effective Date, all of which shall survive the execution, delivery and effectiveness of this Restated Lease and the occurrence of the Restatement Effective Date, provided, however, to the extent any such obligations are restated and amended hereunder, they shall survive, be interpreted and be enforced in accordance with the terms of this Restated Lease. Notwithstanding the foregoing and anything contained in this Restated Lease to the contrary, Tenant shall have no liability or obligation whatsoever to Landlord and Landlord shall not declare the occurrence of a default under the Original Lease or a Default hereunder with respect to (a) any of the Abandoned Properties, or (b) any default that may exist under the Original Lease on or prior to the Restatement Effective Date, except as expressly provided to the contrary in Sections 25.2 and 25.3 hereof and in the Environmental Agreement. Except to the extent specifically provided to the contrary in this Restated Lease and in the Environmental Agreement, Landlord shall not be liable for any defaults now existing under the Original Lease. On or prior to the

Restatement Effective Date, all subleases, licenses and other occupancy agreements affecting the Abandoned Properties shall be assigned to Landlord.

25.2 Violations of Law.

(a) In the event that any violation of Law exists with respect to any Property as of the Restatement Effective Date, whether or not any party shall have received any notice or otherwise becomes aware of such violation (any such violation being referred to hereinafter as a “Preexisting Violation”), the following provisions shall apply. If the existence of such Preexisting Violation constitutes a breach of Landlord’s representation contained in Section 30.1.4, Landlord shall be solely responsible, at its own cost and expense, for curing such Preexisting Violation. If any such other Preexisting Violations are listed on Schedule 6, Tenant shall be solely responsible, at its own cost and expense, for curing such Preexisting Violations. Any Preexisting Violation (other than a Preexisting Violation that constitutes a breach of Landlord’s representation contained in Section 30.1.4 or listed on Schedule 6) relating to a Property owned in fee by Landlord, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor which becomes a Major Violation as a result of a Governmental Request by Tenant, which Governmental Request is reasonably necessary in connection with Construction Work necessary to cure dangerous conditions which exist at the applicable Property as of the Restatement Effective Date or to continue operating such Property for its then current use, shall be referred to hereinafter as an “Eligible Legal Violation”. Tenant shall be solely responsible for curing Eligible Legal Violations and for otherwise causing the Premises to comply in all material respects with all Laws, subject to the terms and provisions of Section 25.1 (with respect to Landlord’s inability to declare a Non-Monetary Default for a Preexisting Violation as of the Restatement Effective Date, but without in any way diminishing Landlord’s right to claim a Default for Tenant’s failure to comply with its obligations under Section 25.2 and 25.3 hereof) and Section 25.2(b) and 25.2(c) below. Notwithstanding the foregoing, provided that Tenant complies with all the procedures set forth or referred to in this Section, the actual, out-of-pocket costs and expenses incurred in connection with curing all such Eligible Legal Violations shall be allocated between Tenant and Landlord as follows:


	25.2.1 First, Tenant shall pay all costs and expenses incurred therewith until the amount so incurred equals $250,000 in aggregate.

	25.2.2 Second, Landlord and Tenant shall share equally, on a pro rata basis, the next $2,750,000 of such costs and expenses incurred therewith until the amount so incurred equals $3,000,000 in aggregate.

	25.2.3 Third, to the extent that such costs and expenses incurred therewith exceeds $3,000,000, all such costs and expenses shall be borne by Tenant.

The net effect of the foregoing provisions is that Landlord shall in no event pay more than $1,375,000 in connection with the curing of all such Eligible Legal Violations. The procedures set forth in Article III, Section 2 of the Environmental Agreement shall, to the extent applicable,

govern the procedures and mechanics with respect to such allocation between Landlord and Tenant. Notwithstanding the foregoing, Tenant shall be entitled to cure any such Eligible Legal Violation at its sole cost and expense without seeking any reimbursement from Landlord or any allocation of such costs and expenses between itself and Landlord pursuant to the provisions of clauses 25.2.1 through 25.2.3, in which case the procedures set forth above with respect to such allocation and reimbursement shall be inapplicable. With respect to (a) any Major Violation relating to a Property owned in fee by Landlord, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor which is not considered an Eligible Legal Violation and (b) any Major Violation relating to a Property owned in fee by a Third Party Lessor which is not considered an Eligible Legal Violation (as such term is modified pursuant to Section 25.2(c) below), Tenant shall be solely responsible, at its own cost and expense, for curing the same, subject to the terms and provisions of Section 25.1 (with respect to Landlord’s inability to declare a Non-Monetary Default for a Preexisting Violation as of the Restatement Effective Date, but without in any way diminishing Landlord’s right to claim a Default for Tenant’s failure to comply with its obligations under Sections 25.2 and 25.3 hereof). Anything to the contrary contained herein notwithstanding, Landlord shall have no liability or obligation whatsoever hereunder with respect to any Eligible Legal Violation at any time after the second (2nd) anniversary of the Restatement Effective Date, unless the curing of any such Eligible Legal Violation commenced prior to such date.

(b) Uneconomic Cure; Fee Property. Notwithstanding anything to the contrary contained herein, if an Eligible Legal Violation exists with respect to any Property owned by Landlord, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor in fee and if the Government is then actively requiring the cure of such Eligible Legal Violation, Tenant shall cure the same. Notwithstanding the foregoing, if Tenant reasonably determines that effecting such cure would be Uneconomic, then, provided that the cure of such violation at such Property exceeds, in Tenant’s reasonable judgment, $100,000 (such amount being referred to herein as the “Uneconomic Threshold”), Tenant may then deliver a Notice which sets forth Tenant’s request to delete such Property from this Restated Lease and reasonable grounds, in reasonable detail, for Tenant’s determination that the curing of such Eligible Legal Violation would be Uneconomic (a “Deletion Request”). Landlord shall, within thirty (30) days of receipt of such Deletion Request, provide Notice to Tenant as to whether Landlord will cure such Eligible Legal Violation and shall begin to diligently prosecute the cure of the same. If Landlord so elects to cure such Eligible Legal Violation, it shall effect such cure at its sole cost and expense without seeking reimbursement from Tenant, and any sums expended by Landlord in connection therewith shall in no event be deemed to be or considered as amounts expended by Landlord in connection with its obligation under Section 25.2.2. If Landlord elects to and so cures such Eligible Legal Violation, Landlord shall have the right but not the obligation to continue to sublease such Property to Tenant on all the terms and conditions set forth in this Restated Lease. If, however, Landlord fails to respond to Tenant’s Deletion Request within such thirty-day period or fails to commence to cure such Eligible Legal Violation and diligently pursue such cure within such thirty-day period, then, as of the date which is sixty (60) days after Tenant delivers the Deletion Request to Landlord, the applicable Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly. Notwithstanding the

foregoing, if Tenant has expended at least $100,000 (net of any reimbursements received from Landlord or any third parties) in connection with curing Eligible Legal Violations on such Property or if Tenant has expended at least $2,000,000 (net of any reimbursements received from Landlord or any third parties) in connection with curing Eligible Legal Violations on any Property or Properties (whether or not Landlord shall have expended any amount with respect to curing Eligible Legal Violations on the applicable Property), then Tenant shall be entitled to deliver a Deletion Request notwithstanding the fact that the cure of such violation does not, in Tenant’s reasonable judgment, exceed the Uneconomic Threshold. In the event that the Government is actively requiring the cure of an Eligible Legal Violation, the cure of which Tenant reasonably determines to be Uneconomic but which will not exceed the Uneconomic Threshold, Tenant may nonetheless deliver a Deletion Request to Landlord. If such Deletion Request sets forth a commercially reasonable basis for Tenant’s claim that the cure of such violation would be Uneconomic, Landlord shall not unreasonably withhold its consent to treating the cure of such violation as one which exceeds the Uneconomic Threshold. Anything to the contrary contained herein notwithstanding, with respect to any Property owned in fee by Landlord, the Leemilt’s Lessor, the Gettymart Lessor, or the Power Test Lessor, Tenant shall have no right to deliver a Deletion Request or otherwise refrain from curing an Eligible Legal Violation because curing the same would be Uneconomic at any time after the fourth (4th) anniversary of the Restatement Effective Date.

(c) Cure; Third Party Leases. Notwithstanding anything to the contrary contained herein, if an Eligible Legal Violation (the definition of which term shall be deemed modified for the purpose of this Section 25.2(c) to refer to a Major Violation relating to a Property owned in fee by a Third Party Lessor) or preexisting maintenance condition exists with respect to any Property owned by a Third Party Lessor and if the Government or another third party is then actively requiring the cure of such Eligible Legal Violation or preexisting maintenance condition, then Tenant may, at its election, cure such Eligible Legal Violation or preexisting maintenance condition. If Tenant elects to so cure, then the expenses incurred in effecting such cure shall be allocated pursuant to the provisions of clauses 25.2.1 through 25.2.3 (except that Tenant shall have the right to cure such Eligible Legal Violation at its sole cost and expense as set forth in Section 25.2(a)), it being understood that Landlord shall in no event be obligated to pay more than $1,375,000 in aggregate in connection with its contribution obligations pursuant to this Section 25.2. If Tenant elects not to cure, Tenant must provide Landlord with Notice of such election within thirty (30) days after receipt of notice of such Eligible Legal Violation or preexisting maintenance condition. Upon Landlord’s receipt of such Notice, Landlord shall, within thirty (30) days of receipt of such Notice, provide Notice to Tenant as to whether Landlord will cure such Eligible Legal Violation or preexisting maintenance condition and shall begin to diligently prosecute the cure of the same. Any sums expended by Landlord in connection with curing an Eligible Legal Violation pursuant to the preceding sentence shall in no event be deemed to be or considered amounts expended by Landlord in connection with its obligation under Section 25.2.2. If Landlord elects to and so cures such Eligible Legal Violation or such preexisting maintenance condition, then Landlord shall continue to sublease such Property to Tenant on all the terms and conditions set forth in this Restated Lease. If, however, Landlord fails to respond to Tenant’s Notice of election not to cure within thirty (30) days of receipt of the same or if Landlord fails to commence to cure and continue to diligently

pursue such Eligible Legal Violation or such preexisting maintenance condition within such thirty-day period, then, as of the date which is sixty (60) days after Tenant delivers its Notice of election not to cure, the applicable Property shall be deemed deleted from this Restated Lease, the Fixed Rent shall be adjusted to reflect such deletion in accordance with the Fixed Rent Adjustment Procedures, the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly, and Landlord shall pay Tenant Lease Termination Damages with respect to the deletion of such Property. The rights of Landlord and Tenant pursuant to this Section shall continue in full force and effect until the expiration or earlier termination of this Restated Lease.

25.3 Violation of Environmental Law. In the event that any violation of Environmental Law exists with respect to any Property as of the Restatement Effective Date whether or not any party shall have received notice of or otherwise become aware of such violation (such violation being referred to herein as a “Preexisting Environmental Violation”), the following provisions shall apply. The mere existence of any such Preexisting Environmental Violation shall not cause Tenant to be in default under this Restated Lease. Landlord’s and Tenant’s obligations with respect to environmental matters shall be as set forth elsewhere in this Restated Lease and in the Environmental Agreement.

25.4 No Actions. Except to the extent required by Law or Environmental Law, neither Landlord nor Tenant shall take any action (i) reasonably likely to cause an applicable Government or a party other than the other party hereto to assert a claim seeking Remediation or other activity related to compliance with Law or Environmental Law, or (ii) to compromise, admit any fact, concede liability or otherwise materially prejudice Landlord’s or Tenant’s, as applicable, ability to defend any actual or potential claim with respect to compliance with Law or Environmental Law.

26. PERMITTED LEASEHOLD MORTGAGES; RIGHTS OF LEASEHOLD MORTGAGEE.

26.1 Tenant’s Right to Mortgage Lease. Notwithstanding anything to the contrary contained in this Restated Lease, the Leemilt’s Lease, the Gettymart Lease, or in any Power Test Lease or Fee Mortgage, but subject to the terms of the Third Party Leases, Tenant, and any permitted successor or assign of Tenant, may, without Landlord’s consent, from time to time enter into a Permitted Leasehold Mortgage, provided that no more than two (2) Permitted Leasehold Mortgages may encumber this Restated Lease and the Leasehold Estate demised hereunder at any time. There shall be no limitation or restrictions upon the principal amount and other sums secured by any such Permitted Leasehold Mortgage, and such principal amount or other sums may also be secured by other mortgages, deeds of trust or security agreements. Any Permitted Leasehold Mortgage shall by its terms be made expressly subject to all Landlord’s rights under the provisions, covenants, conditions, exceptions and reservations herein contained. Landlord shall not be bound to recognize Leasehold Mortgagee or to deliver to same any Notice required under the terms of this Restated Lease unless and until Leasehold Mortgagee and Tenant shall have notified Landlord in writing pursuant to Article 20 hereof of the existence of its Permitted Leasehold Mortgage and of the name and address of Leasehold Mortgagee.

26.2 Rights of Leasehold Mortgagee. Landlord hereby agrees with and for the benefit of Leasehold Mortgagee that from and after the date that it delivers to Landlord the Notice referred to in Section 26.1 hereof, subject to the rights of Third Party Lessors:


	26.2.1 Cancellations, Modifications. Except as otherwise provided in this Restated Lease, no cancellation, surrender, acceptance of surrender, or modification of this Restated Lease (provided, however, that Leasehold Mortgagee’s consent shall not be required if such modifications do not materially increase Tenant’s obligations or decrease Tenant’s rights hereunder) shall be binding upon Leasehold Mortgagee or affect the lien of the Permitted Leasehold Mortgage thereof, without the prior written consent of Leasehold Mortgagee.

	26.2.2 Notice and Demands. No Notice which shall be given by Landlord to Tenant shall be effective unless a copy of said Notice shall be given to Leasehold Mortgagee within the time when such Notice shall be required or permitted to be given. In the case of an assignment of the Permitted Leasehold Mortgage (which may only be to another Permitted Leasehold Mortgagee) or change in address of Leasehold Mortgagee, the assignee thereof or Leasehold Mortgagee, by Notice to Landlord, may change the address to which copies of Notices are to be sent as herein provided. All Notices and copies of Notices to be given to Leasehold Mortgagee as provided in this Article 26 shall be given in the same manner as is provided in this Restated Lease in respect of Notices to be given by Landlord or Tenant and shall be addressed to Leasehold Mortgagee in accordance with instructions given from time to time by Leasehold Mortgagee to Landlord and Tenant pursuant to Notice as provided in Section 26.1 hereof.

	26.2.3 Performance of Lease by Leasehold Mortgagee. If Tenant defaults in respect of any provisions of this Restated Lease, Leasehold Mortgagee shall have the right, but not the obligation, to cure such Default whether same consists of the failure to pay Rent or the failure to perform any other matter or thing which Tenant is required to do or perform under this Restated Lease, and Landlord shall accept performance by or on behalf of Leasehold Mortgagee as though, and with the same effect as if, it had been done or performed by Tenant. Leasehold Mortgagee will have a period of time after the service of Notice of such Default upon it within which to cure or cause to be cured the Default specified in such Notice which period of time is the same period for cure, if any, as given to Tenant in respect of the specified Default after the giving of Notice of such Default to Tenant, plus (without waiving any late charges or default interest) an additional period of fifteen (15) Business Days in the case of a Material Monetary Default and a Non-Material Monetary Default and thirty (30) Business Days in the case of all Non-Monetary Defaults.

	26.2.4 Possession by Leasehold Mortgagee. If, in order to cure any Non-Monetary Default by Tenant, Leasehold Mortgagee must have possession of or control over the Premises, such Non-Monetary Default will be deemed not to exist until Leasehold Mortgagee has had a reasonable opportunity to commence


	and with reasonable diligence to complete foreclosure or take other appropriate actions to acquire possession of and control over the Premises, but upon the condition that Leasehold Mortgagee shall during the pendency of any such foreclosure or other proceedings pay or cause to be paid to Landlord, when and as it shall become due the Rent provided for in this Restated Lease and cure all other Non-Monetary Defaults which are reasonably susceptible of cure by Leasehold Mortgagee. Leasehold Mortgagee shall not be required to commence or continue any foreclosure or other proceedings or to obtain or continue possession of the Premises, except as specified above as a prerequisite for exercise or preservation of Leasehold Mortgagee’s rights and for Landlord’s delay in claiming a Non-Monetary Default.

	26.2.5 Personal Defaults. Anything contained in this Section 26.2 to the contrary notwithstanding, any Non-Monetary Default of Tenant which is not reasonably susceptible of being cured by Leasehold Mortgagee even after Leasehold Mortgagee has obtained possession of and control over the Premises shall be deemed to have been waived by Landlord upon completion of foreclosure proceedings or when Leasehold Mortgagee, or its nominee or another shall otherwise acquire title to Tenant’s interest in this Restated Lease, provided that up through the time of such completion of acquisition of title, all Material Monetary Defaults, Non-Material Monetary Defaults and Non-Monetary Defaults reasonably susceptible of cure are cured in a timely manner. Any Non-Monetary Default which is reasonably susceptible of being cured after such completion or acquisition shall thereafter be cured with reasonable diligence.

26.3 Noncurable Non-Monetary Default. In case of a Non-Monetary Default which is not susceptible of being cured by Leasehold Mortgagee without acquiring title to the Premises, Leasehold Mortgagee shall institute and prosecute to completion foreclosure proceedings or acquire Tenant’s estate hereunder, either in its own name or through a nominee, by assignment in lieu of foreclosure. Leasehold Mortgagee shall not be required to continue to prosecute foreclosure proceedings if and when such Non-Monetary Default shall be cured. If Leasehold Mortgagee, or its nominee, or a purchaser at a foreclosure sale, shall acquire title to the Leasehold Estate, and shall cure all Non-Monetary Defaults of Tenant hereunder which can be cured by Leasehold Mortgagee, or by said purchaser, as the case may be, then the Non-Monetary Defaults of any prior holder of Tenant’s Leasehold Estate hereunder which cannot be cured by Leasehold Mortgagee (or by said purchaser), as are listed on Schedule 9, shall no longer be deemed to be Non-Monetary Defaults hereunder, provided that up through the time of such acquisition of title, all Material Monetary Defaults, Non-Material Monetary Defaults and Non-Monetary Defaults reasonably susceptible of cure are cured in a timely manner.

26.4 Delegation of Tenant’s Rights. Tenant may delegate irrevocably to Leasehold Mortgagee the authority to exercise any or all of Tenant’s rights under this Restated Lease, but no such delegation shall be binding upon Landlord unless and until either Tenant or such empowered Leasehold Mortgagee shall deliver to Landlord a signed counterpart of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Permitted Leasehold Mortgage itself, in which case the service upon Landlord of an

executed counterpart of said Permitted Leasehold Mortgage in accordance with this Section 26.4, together with a written Notice from Tenant and Leasehold Mortgagee specifying the provisions therein which delegate such authority to said Leasehold Mortgagee, shall be sufficient to give Landlord Notice of such delegation. Any provision of this Restated Lease which gives to Leasehold Mortgagee the privilege of exercising a particular right of Tenant hereunder on condition that Tenant shall have failed to exercise such right shall not be deemed to diminish any privilege which Leasehold Mortgagee may have, by virtue of a delegation of authority from Tenant, to exercise such right without regard to whether or not Tenant shall have failed to exercise such right.

26.5 Assignment/Sale. Notwithstanding the terms and provisions of Article 16 hereof, Leasehold Mortgagee or other acquirer of the Leasehold Estate pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings may, upon acquiring Tenant’s Leasehold Estate, without further consent of Landlord, sell and assign the Leasehold Estate on such terms and to such persons and organizations as are acceptable to Leasehold Mortgagee or acquirer and reasonably acceptable to Landlord, and thereafter be relieved of all obligations arising under this Restated Lease subsequent to such sale or assignment; provided that such assignee has delivered to Landlord its written agreement to be bound by all of the provisions of this Restated Lease. Notwithstanding Article 16 or any other provisions of this Restated Lease, any sale of this Restated Lease and of the Leasehold Estate in any proceedings for the foreclosure of a Permitted Leasehold Mortgage, or the assignment or transfer of this Restated Lease and of the Leasehold Estate in lieu of the foreclosure of such Permitted Leasehold Mortgage shall be deemed to be a permitted sale, transfer or assignment of this Restated Lease and of the Leasehold Estate.


	26.6 Termination of Lease; New Lease to Mortgagee.

	26.6.1 If this Restated Lease shall terminate by reason of a Material Monetary Default of Tenant hereunder, Landlord shall give written Notice to Leasehold Mortgagee that this Restated Lease has been terminated, together with a statement of any and all sums which would at that time be due under this Restated Lease but for such termination, and of all other Defaults, if any, under this Restated Lease then known to Landlord. Leasehold Mortgagee, by written Notice to Landlord given within thirty (30) days of such termination, and provided it was precluded from curing such Material Monetary Default prior to the termination of this Restated Lease and has since cured all such Defaults other than those Non-Monetary Defaults which are not susceptible of cure by Leasehold Mortgagee, thereupon may request Landlord to enter into a new lease of the Premises pursuant to this Section, and Landlord shall enter into a new lease with Leasehold Mortgagee (or its nominee), within thirty (30) days after the giving of said written Notice by Leasehold Mortgagee. Said new lease shall commence and rent and all obligations of the Tenant under the new lease shall accrue, as of the date of termination of this Restated Lease. The term of said new lease shall continue for the period which would have constituted the remainder of the Term of this Restated Lease had this Restated Lease not been terminated and shall be upon all of the terms, covenants, conditions, conditional limitations, and agreements contained herein which were in force and effect immediately prior to the


	termination of this Restated Lease. Said new lease, and this covenant, shall be superior to all rights, liens, and interests, other than those to which this Restated Lease shall have been subject immediately prior to termination and those matters to which this Restated Lease may, by its terms, become subject. The provisions of the immediately preceding sentence shall be self-executing, and Landlord shall have no obligation to do anything, other than to execute said new lease as herein provided, to assure to Leasehold Mortgagee or to the Tenant under the new lease good title to the leasehold estate granted thereby.

	26.6.2 Leasehold Mortgagee shall, simultaneously with the delivery of the new lease, pay to Landlord (1) all Rent and other sums of money due under this Restated Lease on the date of termination of this Restated Lease and remaining unpaid; plus (2) all rent and other sums of money due under the new lease for the period from the date of commencement of the term thereof to the date of delivery of the new lease; plus (3) all costs and expenses, including Legal Costs, incurred by Landlord in connection with termination of this Restated Lease, the recovery of possession of the Premises, and the preparation, execution and delivery of said new lease. Simultaneously therewith, Landlord shall pay over to Leasehold Mortgagee any rentals, less costs and expenses of collection, received by Landlord between the date of termination of this Restated Lease and the date of execution of said new lease, from Subtenants or other occupants of the Premises which shall not theretofore have been applied by Landlord towards the payment of Rent or any other sum of money payable by Tenant hereunder or towards the cost of operating the Premises or performing the obligations of Tenant hereunder.

	26.6.3 If Leasehold Mortgagee shall exercise its right to obtain a new lease pursuant to this Section 26.6, but Leasehold Mortgagee or its nominee shall fail to execute such a new lease when tendered by Landlord, or shall fail to comply timely with the other provisions of this subdivision, then said Leasehold Mortgagee shall have no further rights to a new lease or any other rights hereunder.

26.7 Landlord’s Right to Payment. Nothing in this Article shall be construed to relieve Leasehold Mortgagee or its designee of the obligation to pay any monetary amounts required to be paid under this Restated Lease by the Tenant to the extent that Leasehold Mortgagee elects not to cancel this Restated Lease or elects to enter into a new lease.

26.8 Rejection in Bankruptcy. If Tenant exercises any election to reject this Restated Lease pursuant to the United States Bankruptcy Code, Leasehold Mortgagee shall have the option to enter into a new lease pursuant to the terms and conditions of Section 26.6.

26.9 Conflicts Among Leasehold Mortgagees. If more than one Leasehold Mortgagee desires to exercise any rights or protections pursuant to this Article 26, Landlord shall be required to recognize only the Leasehold Mortgagee whose Permitted Leasehold Mortgage is senior in lien (as against the other Permitted Leasehold Mortgage). Priority of Permitted Leasehold Mortgages shall be conclusively evidenced by written agreement among the Leasehold Mortgagees or, if the Leasehold Mortgagees cannot agree, a report or certificate of a title

insurance company (reasonably acceptable to Landlord) licensed to do business in the State of New York. Neither Tenant nor Landlord shall be obligated to determine the relative priorities of any Leasehold Mortgages. No time period that applies to any Leasehold Mortgagee’s exercise of any rights or protections shall be tolled pending the determination of priority of Leasehold Mortgagees.

26.10 Limited Waiver. Notwithstanding any provision in this Restated Lease to the contrary, under no circumstances shall Landlord be required to refrain from exercising any of its rights hereunder if Leasehold Mortgagee has not cured an Event of Default which (i) may expose Landlord to criminal or civil liability, (ii) may materially jeopardize the value or ability to operate the Premises or any material part thereof, (iii) may result in the termination of a Third Party Lease, Fee Mortgage or other material agreement relating to the use or occupancy of the Premises or (iv) creates a dangerous or unsafe condition at the Premises. Notwithstanding the foregoing, nothing contained herein shall in any way limit or affect the right of Leasehold Mortgagee or its nominee to obtain a new lease pursuant to the provisions of Section 26.6 if this Restated Lease is terminated pursuant to this Section.

27. PERMITTED EXCEPTIONS. Landlord represents and warrants to Tenant that, as of the date hereof, the Permitted Exceptions do not and would not have a material adverse effect on the value of the Premises taken as a whole.

28. SINGLE LEASE. Tenant hereby acknowledges that the agreement between Landlord and Tenant to treat this as single lease in all respects, was and is of primary importance to Landlord, and Landlord would not have entered into this Restated Lease without there being such an agreement and such treatment of this Restated Lease. All rights and obligations under this Restated Lease relating to the Premises shall apply to all Properties and any Default under this Restated Lease pertaining to a single or to multiple Properties shall be an Event of Default pertaining to the Premises. Without limiting the generality of the foregoing, the parties hereto acknowledge that this Restated Lease constitutes a single lease of the Premises and is not divisible notwithstanding any references herein to any individual Property and notwithstanding the possibility that certain individual Properties may be deleted herefrom pursuant to the express provisions of Article 13, 14, 15, 22 and 25 of this Restated Lease under certain limited circumstances. The parties hereto expressly intend that this Restated Lease, notwithstanding the possibility that certain individual Properties may be deleted herefrom under certain limited circumstances expressly provided for in Article 13, 14, 15, 22 and 25 of this Restated Lease, be treated as a single lease for all purposes whatsoever, including, without limitation, Renewal Options, Permitted Leasehold Mortgages, any assignment of the Leasehold Estate by Tenant (as approved by Landlord), and in the context of Tenant’s attempted rejection, assumption and/or assignment of this Restated Lease in any bankruptcy or other insolvency proceeding affecting Tenant, in which case the parties hereto intend for such rejection to terminate this Restated Lease with respect to all but not less than all of the Premises or such assumption to apply with respect to the Premises, i.e. all but not less than all of the Properties. This Restated Lease does not constitute, and may not be enforced or treated as, a separate lease for any individual Property.

29. REPORTING.

29.1 Property-Level Reporting. Tenant shall, as soon as practicable, and in any event within sixty (60) days after the end of each fiscal quarter, furnish to Landlord and any Fee Mortgagee a profit and loss statement for each of the Properties as of and for the quarterly period then ended and for the year to date, certified by Tenant through one of its executive officers. Notwithstanding the foregoing, if (a) any such Properties are subject to the tenancy of a lessee-dealer and (b) such profit and loss statements are not reasonably available to Tenant with respect to such Properties, then Tenant shall, as soon as practicable, and in any event within sixty (60) days after the end of each fiscal quarter, instead furnish to Landlord and any Fee Mortgagee a statement that sets forth (i) the volume of gas sales in gallons, (ii) inside store sales for those Properties where percentage rents are required under Third Party Leases and at all other Properties to the extent available to Tenant, (iii) itemized expenses to the extent available to Tenant and (iv) rental and other income received with respect to such Property as and for the quarterly period then ended and year to date, prepared in accordance with GAAP, consistently applied, and certified by Tenant through one of its executive officers.

29.2 Tenant Reporting. Tenant shall deliver to Landlord, for Landlord’s information, Tenant’s financial information (a) if and when publicly available pursuant to the reporting requirements of any jurisdiction, in the form made publicly available pursuant to such reporting requirements or (b) if not publicly available, within 150 days after the end of each fiscal year, consisting of Tenant’s balance sheet, income statement and statement of changes in cash flow, in either case prepared in accordance with GAAP, consistently applied. In the event that such financial information provided pursuant to clause (b) above has been certified by an independent certified public accountant, at the time Tenant delivers its financial information pursuant to the preceding sentence, Tenant shall also deliver to Landlord a copy of such certified financial information. If such financial information is not so certified, it shall be certified by Tenant through one of its executive officers. With respect to any information that is not publicly available, Landlord agrees to keep such financial information strictly confidential. Notwithstanding the foregoing, Landlord may use or disclose such financial information to any bank or other financial institution that is considering providing financing to Landlord, provided that (i) Landlord provides Tenant with reasonable advanced Notice of the identity of the financial institution it plans to provide with such financial information, (ii) such financial institution agrees to keep such information confidential, and (iii) in Tenant’s reasonable judgment, such financial institution is not in competition with Tenant.

30. REPRESENTATIONS, WARRANTIES AND COVENANTS.

30.1 Landlord’s Representations, Warranties and Covenants. To induce Tenant to enter into this Restated Lease and to lease the Premises, and to pay the Rent hereunder, Landlord hereby makes the following representations, warranties and covenants with respect to the Premises as of the date hereof, upon each of which, together with the representation contained in Section 9.3, Landlord acknowledges and agrees that Tenant is entitled to rely and has relied:


	30.1.1 Organization and Power. Landlord is a corporation duly organized, validly existing and in good standing under the laws of the State of


	Delaware and is qualified to transact business in all jurisdictions where such qualification is necessary to comply with its obligations under this Restated Lease and has all requisite powers and all material governmental licenses, authorizations, consents and approvals to carry on its business as now conducted and to enter into and perform its obligations hereunder and under any document or instrument required to be executed and delivered on behalf of Landlord hereunder.

	30.1.2 Authorization, Execution and Delivery. This Restated Lease has been duly authorized by all necessary action on the part of Landlord, has been duly executed and delivered by Landlord, constitutes the valid and binding agreement of Landlord and is enforceable in accordance with its terms except to the extent that enforcement hereof may be limited by (a) bankruptcy, reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter in effect relating to creditors’ rights generally, and (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

	30.1.3 Non-contravention. The execution and delivery of, and the performance by Landlord of its obligations under, this Restated Lease do not and will not contravene, or constitute a default under, any provision of (i) the current articles of incorporation and bylaws of Landlord including and all amendments thereto (the “Landlord’s Organizational Documents”) true and complete copies of which have been delivered to Tenant prior to the execution of this Restated Lease, or (ii) Laws or any agreement, judgment, injunction, order, decree or other instrument binding upon Landlord or to which the Premises is subject, the result of which could have a material adverse effect on the value of the Premises or Landlord’s ability to lease the Premises to Tenant and/or Landlord’s ability to perform its obligations under this Restated Lease.

	30.1.4 Compliance with Existing Laws. To the best of Landlord’s knowledge, Landlord has not received any written notice of violation of any Law from any Government with respect to any Property which would be reasonably expected to have a materially adverse effect on the value of such Property or the conduct of Tenant’s business thereof, except as set forth on Schedule 6, some of which may not have such a materially adverse effect.

	30.1.5 Intentionally Omitted.

	30.1.6 Condemnation Proceedings. To the knowledge of Landlord, there is not pending any Condemnation with respect to a Property involving payments likely to be in excess of $100,000, except as set forth on Exhibit L.

	30.1.7 Actions or Proceedings. To the best of Landlord’s knowledge, there is no action, suit or proceeding pending against or affecting Landlord or any Property, which, if determined adversely to Landlord, would have a material


	adverse effect on the value of such Property or the conduct of Tenant’s business thereat, except as set forth in Schedule 14, Schedule 6 and Exhibit L.

	30.1.8 Title to Premises. Landlord holds good and marketable fee or leasehold title, as applicable, to the Premises, subject to the Permitted Exceptions.

	30.1.9 Title to Personal Property. None of the Personal Property located on the Premises is owned by Landlord.

	30.1.10 Title to Improvements. All Improvements located on the Premises are owned by Landlord, the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor, or a Third Party Lessor, except to the extent included as “Fixed Assets” on Tenant’s balance sheet as of the date hereof.

	30.1.11 Third Party Lease Box. There are no Third Party Leases in effect with respect to any of the Properties other than the Third Party Leases listed on Exhibit H. To the best of Landlord’s knowledge, true, complete and correct copies of substantially all of the Third Party Leases have been made available to Tenant by Landlord prior to the date hereof. On or prior to the Restatement Effective Date, Landlord shall deliver to Tenant true, complete and correct copies of all Third Party Leases and shall furnish Tenant with a certificate of Landlord certifying that it has so delivered the Third Party Leases (the “Lease Box Certificate”). If the Lease Box Certificate is untrue, then under no circumstances may Landlord declare a Default under this Restated Lease by reason of Tenant’s failure to comply with any Third Party Lease resulting from any such a breach of the Lease Box Certificate (a “Lease Box Breach”), which default did not otherwise constitute a default under this Restated Lease and (i) if as a result of such Lease Box Breach, the Third Party Lease is terminated, Tenant shall be entitled to Lease Termination Damages, and the applicable Property shall be deleted from this Restated Lease, Fixed Rent shall be adjusted in accordance with the Fixed Rent Adjustment Procedures, and the amounts held pursuant to this Restated Lease on account of advanced Real Estate Tax payments pursuant to Article 4 shall be adjusted accordingly, or (ii) if, as a result of any such Lease Box Breach, Tenant suffers any damages, losses or expenses, Landlord shall Indemnify Tenant therefor.

	30.1.12 Third Party Leases. To the best of Landlord’s knowledge, each of the Third Party Leases is valid and subsisting and in full force and effect in accordance with its terms and constitutes the legal, valid, binding and enforceable obligation of the parties thereunder, subject to general principles of equity and laws relating to bankruptcy, reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter in effect relating to creditors’ rights generally. To the best of Landlord’s knowledge, (a) Landlord has not received any written notice of default with respect to any Third Party Lease from any Third Party Lessor, which default remains uncured as of the date hereof, except as set forth in the last item of Schedule 14, and (b) neither a Third Party Lessor nor Landlord is in default of any of its material obligations under a Third Party Lease.


	30.1.13 Third Party Lease Renewals. Set forth on Schedule 15 is a list of each Property subject to a Third Party Lease for which Landlord has recently exercised its option to renew the applicable Third Party Lease.

	30.1.14 Related Party Leases.

	(a) Power Test Leases. There are no Power Test Leases in effect with respect to any of the Properties other than the Power Test Leases listed on Exhibit G. True, complete and correct copies of certain Power Test Leases have been made available to Tenant by Landlord prior to the date hereof. Those Power Test Leases which have not been made available to Tenant by Landlord prior to the date hereof are substantially identical in all material respects to the Power Test Leases that have been made available to Tenant, except with respect to the location and rent. Each of the Power Test Leases is valid and subsisting and in full force and effect in accordance with its terms and constitutes the legal, valid, binding and enforceable obligation of the parties thereunder, subject to general principles of equity and laws relating to bankruptcy, reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter in effect relating to creditors’ rights generally. Landlord has not received any written notice of default with respect to any Power Test Lease from any Power Test Lessor, which default remains uncured as of the date hereof, and neither Landlord nor the Power Test Lessor is in default of any of its obligations under a Power Test Lease.

	(b) Leemilt’s Lease. There is no Leemilt’s Lease in effect with respect to any Properties other than the Leemilt’s Lease. A true, complete and correct copy of the Leemilt’s Lease referred to in clause (i) of the definition of “Leemilt’s Lease” has been made available to Tenant by Landlord prior to the date hereof. The Leemilt’s Lease is valid and subsisting and in full force and effect in accordance with its terms and constitutes the legal, valid, binding and enforceable obligation of the parties thereunder, subject to general principles of equity and laws relating to bankruptcy, reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter in effect relating to creditors’ rights generally. Landlord has not received any written notice of default with respect to the Leemilt’s Lease from the Leemilt’s Lessor, which default remains uncured as of the date hereof, and neither Landlord nor the Leemilt’s Lessor is in default of any of its obligations under the Leemilt’s Lease.

	(c) Gettymart Lease. There is no lease in effect with respect to any of the Properties owned by the Gettymart Lessor other an oral lease agreement between the Gettymart Lessor or an Affiliate of the Gettymart Lessor, as lessor, and Landlord, as lessee (the “Original Gettymart Lease”). The Original Gettymart Lease is valid and subsisting and in full force and effect in accordance with its terms and constitutes the legal, valid, binding and enforceable obligation of the parties thereunder, subject to general principles of equity and laws relating to bankruptcy, reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter in effect relating to creditors’ rights generally. Landlord has not


	received any written notice of default with respect to the Original Gettymart Lease from Lessor, which default remains uncured as of the date hereof, and neither Landlord nor the Lessor is in default of any of its obligations under the Original Gettymart Lease.

	30.1.15 Real Estate Taxes. All Real Estate Taxes due and payable from the Commencement Date through to the date hereof have been paid.

	30.1.16 Insurance Requirements. If Tenant complies with the insurance requirements contained in this Restated Lease, Landlord will not be in default under any Third Party Lease, the Leemilt’s Lease, the Gettymart Lease or any Power Test Lease with respect to the insurance requirements contained therein.

	30.1.17 Fee Mortgages. The Fee Mortgages encumbering the Leemilt’s Lessor’s interest in the Fee Estate are as set forth on Exhibit I, and Fee Mortgages encumbering the Power Test Lessor’s interest in the Fee Estate are as set forth on Exhibit M.

30.2 Tenant’s Representations And Warranties. To induce Landlord to enter into this Restated Lease and to lease the Premises to Tenant, Tenant hereby makes the following representations and warranties, upon each of which Tenant acknowledges and agrees that Landlord is entitled to rely and has relied:

	30.2.1 Organization and Power. Tenant is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland, and is qualified to transact business in all jurisdictions where such qualification is necessary to comply with its obligations under this Restated Lease and has all requisite powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and to enter into and perform its obligations under this Restated Lease and any document or instrument required to be executed and delivered on behalf of Tenant hereunder.

	30.2.2 Authorization, Execution and Delivery. This Restated Lease has been duly authorized by all necessary action on the part of Tenant, has been duly executed and delivered by Tenant, constitutes the valid and binding agreement of Tenant and is enforceable in accordance with its terms except to the extent that enforcement hereof may be limited by (a) bankruptcy, reorganization, moratorium, fraudulent conveyance, or similar laws now or hereafter in effect relating to creditors’ rights generally, and (b) general principals of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).

	30.2.3 Non-contravention. The execution and delivery of, and the performance by Tenant of its obligations under, this Restated Lease do not and will not contravene, or constitute a default under, any provision of (i) the current articles of incorporation and bylaws of Tenant including and all amendments thereto (the “Tenant’s Organizational Documents”) true and complete copies of

which have been delivered to Landlord prior to the execution of this Restated Lease, or (ii) Laws or any agreement, judgment, injunction, order, decree or other instrument binding upon Tenant or to which the Premises is subject, the result of which could have a material adverse effect on the value of the Premises or Tenant’s ability to lease the Premises from Landlord and/or Tenant’s ability to perform its obligations under this Restated Lease.

30.3 Survival. No representations, warranties or covenants contained in this Article 30, including any rights arising out of any breach of such representation, warranty or covenant, shall in any event survive after the sixth (6th) anniversary of the Restatement Effective Date.

31. LANDLORD DEFAULT.

31.1 Landlord Default. If Landlord shall fail to perform or observe (a) any covenant or obligation required to be performed by Landlord hereunder or (b) any obligation of Landlord, under any Third Party Lease, any Power Test Lease, the Leemilt’s Lease, the Gettymart Lease or Fee Mortgage the performance or observance of which is not Tenant’s obligation hereunder, and any such Default referred to in clause (a) or (b) shall continue for (x) with respect to a monetary Default a period of ten (10) Business Days after Notice thereof from Tenant and (y) with respect to a non-monetary Default, thirty (30) Business Days after Notice thereof from Tenant or such longer period as may be reasonable under the circumstances, then upon Landlord’s receipt of a second Notice from Tenant with respect to such Default, a “Landlord Default” shall be deemed to have occurred hereunder. Upon the occurrence of any such Landlord Default, Tenant shall have the right, but not the obligation, to make such payment or perform such act on Landlord’s part that gave rise to such Landlord Default. In the event that a court of competent jurisdiction enters a final, non-appealable judgment or order confirming the occurrence of any such Landlord Default and allowing Tenant to recover the costs incurred by Tenant in curing such Landlord Default, then Tenant shall have the right to offset against any payment of Fixed Rent due hereunder an amount equal to the damages suffered by Tenant as a result of such Landlord Default, as set forth in such final order or judgement. In the event that Tenant elects to offset any amount against Fixed Rent in accordance with this Section 31.1, Tenant shall give Landlord Notice of such election to offset at least twenty (20) days prior to effecting the same, which Notice shall include the amount of damages set forth in such final order or judgment, the amount that Tenant plans to offset, and the timing of such offset. Nothing contained in this Section shall be deemed to limit Tenant’s right to offset Rent pursuant to the express provisions of Section 3.5. Anything to the contrary contained herein notwithstanding, in no event shall a Landlord Default shall be deemed to occur if such Default or alleged Default arises either directly or indirectly from the acts or omissions of Tenant, Subtenant or their respective agents, contractors, employees, licensees or invitees.

31.2 Dispute. If Landlord shall in good faith dispute the occurrence of any Landlord Default and Landlord, before the expiration of the applicable cure period, shall give Notice thereof to Tenant, setting forth, in reasonable detail, the basis therefor, no Landlord Default shall be deemed to have occurred and Landlord shall have no obligation with respect thereto until final, non-appealable adverse determination thereof; provided, however, that in the

event of any such adverse determination, Landlord shall pay to Tenant interest on any disputed funds at an interest rate equal to six (6) percent per annum, from the date of demand for such funds was made by Tenant until the date of payment. If Tenant and Landlord shall fail, in good faith, to resolve any such dispute within ten (10) days after Landlord’s Notice of dispute, either may submit the matter for resolution to a court of competent jurisdiction.

32. MISCELLANEOUS.

32.1 Force Majeure. Each party’s obligation to perform or observe any term, condition, covenant or agreement on such party’s part to be performed or observed pursuant to this Restated Lease (other than any obligation to pay money when due) shall be suspended during such time as such performance or observance is prevented or delayed by reason of any Unavoidable Delay.

32.2 Performance Under Protest. If a dispute arises regarding performance of any obligation under this Restated Lease, the party against which such obligation is asserted shall have the right to perform it under protest, which shall not be regarded as voluntary performance. A party that shall have performed under protest shall have the right to institute appropriate proceedings to recover any amount paid or the reasonable cost of otherwise complying with any such obligation, together with interest at the Prime Rate on funds expended.

32.3 Legal Costs, Generally. If either party prevails in any litigation or other dispute relating to the enforcement or interpretation of this Restated Lease or arising from this Restated Lease, a Power Test Lease, the Leemilt’s Lease, the Gettymart Lease, a Third Party Lease, or the landlord/tenant relationship under this Lease (as determined by the judge presiding over such litigation or dispute), then the losing party shall promptly after Notice (accompanied by reasonable backup documentation), reimburse the prevailing party’s Legal Costs incurred in such litigation or other dispute. In addition, Tenant shall promptly after Notice (accompanied by reasonable backup documentation), reimburse Landlord’s Legal Costs and other actual, out-of-pocket expenses incurred by Landlord in exercising Landlord’s remedies against Tenant upon an Event of Default under this Restated Lease or pursuant to and in any proceeding under the federal bankruptcy code or similar statute affecting Tenant.

32.4 Access. Except as expressly provided in Section 9.1 of this Restated Lease, Landlord and its agents, representatives and designees shall have the right to enter any Property upon reasonable notice to Tenant during regular business hours (which notice shall, except in the case of emergencies, be given at least forty-eight (48) hours prior to any such entry), and in accordance with Tenant’s reasonable instructions, for the purpose of complying with Landlord’s specific obligations pursuant to this Restated Lease and for the purpose of curing Tenant’s defaults of which Landlord shall have given Tenant prior Notice or to exhibit the Premises in connection with the mortgaging or sale of the Fee Estate in compliance with this Restated Lease. Except as expressly provided in Section 9.1 of this Restated Lease, in entering any Property pursuant to this Section, Landlord and its designees shall use reasonable efforts not to interfere with the conduct of operations on such Property by Tenant or anyone claiming through Tenant, and shall comply with Tenant’s reasonable instructions. Except as expressly provided in Section 9.1 of this Restated Lease, Landlord shall Indemnify Tenant against any

claims arising from Landlord’s entry upon any Property pursuant to this Section or any other provision of this Restated Lease permitting Landlord to enter any Property (except upon termination of this Restated Lease).

32.5 Vault Space. Any vaults and other areas now existing or subsequently built extending beyond the building line of any Property are not included within the Premises, but Tenant may occupy and use the same during the Term, subject to applicable Laws and payment of all applicable Impositions. No revocation by any Government of any license or permit to maintain and use any such vaults shall in any way affect this Restated Lease or the Rent due and owing hereunder.

32.6 No Third Party Beneficiaries. Nothing in this Restated Lease shall be deemed to confer upon any person (other than Landlord, Tenant, Third Party Lessors, the Power Test Lessor, the Leemilt’s Lessor, the Gettymart Lessor, Fee Mortgagees or Leasehold Mortgagee) any right to insist upon, or to enforce against Landlord or Tenant, the performance or observance by either party of its obligations under this Restated Lease.

32.7 Amendment; Amendment of Other Agreements. Any modification or amendment to this Restated Lease must be in writing signed by Landlord and Tenant. Landlord and Tenant shall not modify or amend this Restated Lease in any way during the period of time beginning on the date hereof and ending on the occurrence of the Restatement Effective Date (such period of time being referred to hereinafter as the “Gap Period”) without the consent of Lukoil USA (as defined hereinafter), which consent shall not be unreasonably withheld. Landlord shall not modify or amend or allow to be modified or amended any Third Party Lease, any Power Test Lease, the Leemilt’s Lease or the Gettymart Lease in any way during the Gap Period or at any time thereafter without the consent of Tenant, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, to the extent that any such proposed amendment or modification would decrease Tenant’s rights or increase Tenant’s obligations hereunder (except by a de minimis amount), Lukoil USA or Tenant, as applicable, may withhold its consent in its sole and absolute discretion.

32.8 Partial Invalidity. If any term or provision of this Restated Lease or the application of such term or provision to any party or circumstance shall to any extent be invalid or unenforceable, then the remainder of this Restated Lease, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected by such invalidity. All remaining provisions of this Restated Lease shall be valid and be enforced to the fullest extent permitted by law.

32.9 Successors and Assigns. This Restated Lease shall bind and benefit Landlord and Tenant and their successors and assigns, but this shall not limit or supersede any transfer or similar restrictions contained in this Restated Lease.

32.10 Recording. At the request of Tenant, Landlord and Tenant will execute for purposes of recordation in the appropriate recording office a memorandum or short form of this Restated Lease containing (a) the names of the parties, (b) a description of the Premises, (c) the term of this Restated Lease, (d) a statement to the effect that the Related Lease

is a single lease demising the entire Premises and may not be severed, bifurcated, divided or otherwise split in any manner whatsoever, (e) a statement to the effect that any transferee of Landlord’s interest in a Property must enter into a Transferee Lease with Tenant, and (f) such other provisions as either party may reasonably require. The cost and expenses of recording the memorandum or short form of this Restated Lease shall be borne by Landlord or Tenant as set forth in the Transfer Tax Agreement. Each party agrees that it will not record this Restated Lease in its entirety unless such a recording is required to protect the rights of Landlord and Tenant hereunder or applicable law. The aforesaid memorandum of lease shall be executed and recorded promptly after a form is prepared and delivered by the requesting party to the other party, which form is reasonably acceptable to the other party. Landlord shall not grant or record any interest in or encumbrance upon the fee title to the Premises from the date hereof until such time as the memorandum of this Restated Lease is recorded. If a new lease is executed pursuant to Section 26.6, the priority thereof shall be the same recording priority accorded to the aforesaid memorandum of this Restated Lease, which shall contain a provision referencing the provisions of Section 26.6. If requested by the tenant under such new lease, Landlord will execute for recording a memorandum of the new lease and the holders or trustees, as the case may be, of any fee mortgage or deed of trust applicable to the Premises shall execute for recordation a subordination of the recording priority of their interest to the interest of the tenant under the memorandum of the new lease. Simultaneously with the execution and delivery of such memorandum, Landlord and Tenant will execute and deliver to Latham & Watkins a termination of each such memorandum, in recordable form, which Latham & Watkins shall deliver to Landlord upon receipt from Landlord of a notice that this Restated Lease has been terminated with respect to the Premises or with respect to an individual Property under the specific, limited circumstances provided for in this Restated Lease.

32.11 Consequential Damages.

Notwithstanding anything to the contrary set forth herein, including without limitation Section 18.3.2, in no event shall any party hereto have any liability whatsoever for any consequential damages arising from or allegedly arising from the actions or omissions of any such party.

33. INTERPRETATION; EXECUTION AND APPLICATION OF RESTATED LEASE.

33.1 Governing Law. This Restated Lease and its interpretation and performance shall be governed, construed and regulated by the laws of the State of New York, without regard to principles of conflict of laws.

33.2 Submission to Jurisdiction. Each of Landlord and Tenant hereby submits to the exclusive jurisdiction of the United Stated District Court for the Southern District of New York for purposes of all legal proceedings arising out of or relating to this Restated Lease and the estates and relationships created hereby. If the parties hereto are unable to submit to the jurisdiction of the United States District Court for the Southern District of New York notwithstanding reasonably diligent efforts to do so, then Landlord and Tenant shall submit to the exclusive jurisdiction of any New York State court sitting in New York County, New York.

Each of Landlord and Tenant hereby irrevocably waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceedings brought in any such court and any claim that any such proceeding brought in any such court has been brought in an inconvenient forum.

33.3 Agent for Service of Process. Tenant hereby irrevocably names and designates each of (i) Lukoil Americas Corporation, a Delaware corporation whose address is 540 Madison Avenue, New York, New York 10022 (“Lukoil USA”), and (ii) CT Corporation, 111 Eighth Avenue, New York, New York 10011, as Tenant’s agent (either of the entities referred to in clause (i) or (ii) being referred to hereinafter as Tenant’s “Agent”) for service of process, including all notices required to institute any proceeding in any court or in any other way required to confer personal jurisdiction over Tenant in any court, and for the receipt of any Notices or other communications required under this Restated Lease, including personal demands for Rent, and any and all other Notices under this Restated Lease issued for the purpose of demanding compliance with this Restated Lease. Service or demand upon either Agent shall be good and sufficient service and demand upon Tenant for all purposes, including, without limitation, the purpose of obtaining personal jurisdiction over Tenant for any legal action or proceeding or for the purpose of commencing any proceeding. Tenant agrees to take any and all action necessary to continue each Agent’s designation in full force and effect. If either Agent becomes unable to act as Agent for any reason then Tenant shall forthwith irrevocably designate a replacement Agent satisfying the requirements of this Section that would apply to any replacement Agent, as set forth in the next sentence. By Notice to Landlord (but no more frequently than once every six months), Tenant may substitute in place of either Agent any other Person having full-time business offices and a street address in Manhattan. Tenant agrees that delivery of any Notice to either Agent, or any service of process upon either Agent, in accordance with the notice requirements of this Restated Lease, shall constitute valid and effective personal service upon Tenant. Any such Notice or service of process shall be effective in accordance with the provisions of this Restated Lease relating to Notices. Any failure of either Agent to give any notice of such service of process or Notice to Tenant shall not impair or affect the validity of such Notice, service of process, or any judgment rendered in any proceeding based thereon.

33.4 Counterparts. This Restated Lease may be executed in counterparts.

33.5 Reasonableness. Wherever this Restated Lease grants to either party the right to consent to or approve of any matter, whether or not this Restated Lease states that such approval or consent shall not be unreasonably withheld: (a) such approval or consent shall not be unreasonably withheld, delayed or conditioned; and (b) no withholding of approval or consent shall be deemed reasonable unless withheld by Notice specifying reasonable grounds, in reasonable detail, for such withholding of approval, and indicating specific reasonable changes in the proposal under consideration that would cause such proposal to be acceptable. Anything to the contrary contained hereunder notwithstanding, in the event that Tenant requests Landlord’s approval or consent of any specific matter with respect to which specific matter Landlord or Tenant must also obtain the approval or consent of a Third Party Lessor and any such Third Party Lessor refuses to grant its approval or consent, then Landlord’s refusal to grant its approval or consent shall be deemed reasonably withheld, delayed and/or conditioned. The foregoing agreement is not intended to imply that it would be reasonable or unreasonable for Landlord to

withhold its approval or consent to any specific request made by Tenant if a Fee Mortgagee withholds its approval or consent with respect to such specific request.

33.6 Interpretation. No inference in favor of or against any party shall be drawn from the fact that such party has drafted any portion of this Restated Lease. The parties have both participated substantially in the negotiation, drafting and revision of this Restated Lease with representation by counsel and such other advisers as they have deemed appropriate. The words “include” and “including” shall be construed to be followed by the words: “without limitation.”

33.7 Delivery of Drafts. Neither Landlord nor Tenant shall be bound by this Restated Lease unless and until each party shall have executed at least one counterpart of this Restated Lease and delivered such executed counterpart to the other party. The submission of draft(s) of this Restated Lease or comment(s) on such drafts shall not bind either party in any way and such draft(s) and comment(s) shall not be considered in interpreting this Restated Lease.

33.8 Captions. The captions of this Restated Lease are for convenience and reference only and in no way affect this Restated Lease.

33.9 Restatement Effective Date; Outside Date. Notwithstanding anything to the contrary contained in this Restated Lease, in the event that the Restatement Effective Date has not occurred by January 28, 2001, this Restated Lease shall automatically become null, void and of no force and effect, and the Original Lease shall continue to be in full force and effect.

33.10 Restatement Effective Date; Estoppel Certificate; Representations. Upon the occurrence of the Restatement Effective Date, Landlord shall deliver to Tenant (i) an Estoppel Certificate, which Estoppel Certificate shall provide, among other things, that, to the best of Landlord’s knowledge, neither Landlord nor Tenant has committed any default under the Original Lease as of the Restatement Effective Date; (ii) a certificate reaffirming that, in all material respects, the statements made in Sections 30.1.1, 30.1.2, 30.1.3, 30.1.8, 30.1.9, 30.1.10, 30.1.12, 30.1.14, 30.1.15, 30.1.16, and 30.1.17 of this Restated Lease are true and correct as of the Restatement Effective Date and as though made on the Restatement Effective Date, except that the representation contained in Section 30.1.17 shall be deemed modified to add to the end of such Section the following: “, except to the extent the Fleet Mortgage shall have been refinanced during the Gap Period”; and (iii) a certificate containing representations as of the Restatement Effective Date substantially identical to those contained in Sections 30.1.4, 30.1.6, 30.1.7, and 30.1.13, except that the Exhibits and Schedules referred to in such Sections shall, for the purposes of such certificate, contain such modifications or amendments as may be necessary to cause the representations contained in such certificate to be true and correct as of the Restatement Effective Date. Upon the occurrence of the Restatement Effective Date, Tenant shall deliver to Landlord a certificate reaffirming that, in all material respects, the statements made in Sections 30.2.1, 30.2.2, and 30.2.3 of this Restated Lease are true and correct as of the Restatement Effective Date and as though made on the Restatement Effective Date.

33.11 Entire Agreement; Other Agreements. This Restated Lease contains all the terms, covenants and conditions relating to Tenant’s leasing of the Premises from and after the Restatement Effective Date. There are no separate understandings or agreements,

oral or written, between Landlord and Tenant relating to the Premises or Tenant’s use or occupancy of the Premises from and after the Restatement Effective Date, except for the Distribution Agreement, the Environmental Agreement, the Transfer Tax Agreement, the Personal Property Letter, and solely to the extent it relates to the Royalty Fee, the License Agreement. In the event that there is any conflict between the terms and conditions of this Restated Lease and the Environmental Agreement and the terms and conditions of the Distribution Agreement, the terms and conditions of this Restated Lease and the Environmental Agreement shall control.

IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Restated Lease on the day and year first above written.


LANDLORD:

GETTY PROPERTIES CORP.
(f/k/a Getty Realty Corp.)


By:	/s/ John Fitteron

	Name:	John Fitteron
	Its:	Senior Vice President


GETTYMART INC., as lessee of a Third Party
Lease to some of the Properties, hereby
consents to this Restated Lease.

GETTYMART INC.

By:	/s/ John Fitteron


TENANT:

GETTY PETROLEUM MARKETING INC.

By:	/s/ Vincent DeLaurentis

	Name:	Vincent DeLaurentis
	Its:	President and Chief Operating Officer

KINGSTON OIL SUPPLY CORP., with respect to
certain Properties located in the Mid-Hudson
Valley as set forth on Exhibit H hereto.

KINGSTON OIL SUPPLY CORP.


By:	/s/ Vincent DeLaurentis

S-1


	GETTY TERMINALS CORP., with respect to
	certain Petroleum Terminal Properties.

	GETTY TERMINALS CORP.

	By:	/s/ Vincent DeLaurentis

S-2

TABLE OF CONTENTS


			Page

1.	DEFINITIONS		2
	1.1	1998 Master Lease	2
	1.2	Abandoned Properties	2
	1.3	Additional Rent	2
	1.4	Affiliate	2
	1.5	April 1999 Master Lease	2
	1.6	Award	2
	1.7	Bankruptcy Default	2
	1.8	Business Day	3
	1.9	Casualty	3
	1.10	Closure	3
	1.11	Commencement Date	4
	1.12	Condemnation	4
	1.13	Construction Work	4
	1.14	Contamination	4
	1.15	County	4
	1.16	CPI	4
	1.17	CPI Adjustment Factor	4
	1.18	Default	5
	1.19	Depository	5
	1.20	Distribution Agreement	5
	1.21	Environmental Agreement	5
	1.22	Environmental Law	5
	1.23	Equipment Liens	5
	1.24	Estoppel Certificate	6
	1.25	Fee Estate	6
	1.26	Fee Mortgage	6
	1.27	Fixed Rent	6
	1.28	Fixed Rent Adjustment Procedures	6
	1.29	Fleet Mortgage	7
	1.30	GAAP	7
	1.31	Gettymart Lease	7
	1.32	Gettymart Lease Estoppel Certificate	7
	1.33	Gettymart Lessor	7
	1.34	Government	7
	1.35	Governmental Request	7
	1.36	Hazardous Substances	8
	1.37	Impositions	8
	1.38	Improvements	8
	1.39	Indemnify	8
	1.40	Indemnitee	9


1.41	Indemnitor	9
1.42	Institutional Lender	9
1.43	Insubstantial Condemnation	9
1.44	Knowledge	9
1.45	Landlord	9
1.46	Landlord’s Award	9
1.47	Law	10
1.48	Lease Termination Damages	10
1.49	Lease Year	10
1.50	Leasehold Estate	11
1.51	Leasehold Mortgagee	11
1.52	Legal Costs	11
1.53	Leemilt’s Lease	11
1.54	Leemilt’s Lease Estoppel Certificate	11
1.55	Leemilt’s Lessor	11
1.56	License Agreement	11
1.57	Major Violation	12
1.58	Marketing Parent	12
1.59	Material Monetary Default	12
1.60	Merger Agreement	12
1.61	Mortgage	12
1.62	New Contamination	12
1.63	Non-Material Monetary Default	12
1.64	Non-Monetary Default	12
1.65	Notice	12
1.66	Pelham Manor Rezoning Event	13
1.67	Permitted Exception	13
1.68	Permitted Leasehold Mortgage	13
1.69	Permitted Leasehold Mortgagee	13
1.70	Person	13
1.71	Personal Property	13
1.72	Personal Property Letter	13
1.73	Petroleum Terminal Properties	13
1.74	Post-Reorganization Leases	14
1.75	Power Test Lease	14
1.76	Power Test Lease Estoppel Certificate	14
1.77	Power Test Lessor	14
1.78	Premises	14
1.79	Prime Rate	14
1.80	Prohibited Liens	15
1.81	Property	15
1.82	Real Estate Taxes	15
1.83	Realty Parent	16
1.84	Remediate	16
1.85	Renewal Option	16


	1.86	Rent	16
	1.87	Restatement Effective Date	16
	1.81A	Restatement Effective Time	16
	1.88	September 1999 Master Lease	16
	1.89	Service Station Properties	16
	1.90	State	16
	1.91	Sublease	16
	1.92	Subsidiary	17
	1.93	Substantial Casualty	17
	1.94	Substantial Condemnation	17
	1.95	Subtenant	17
	1.96	Temporary Condemnation	17
	1.97	Tenant	17
	1.98	Tenant Improvements	17
	1.99	Tenant’s Award	17
	1.100	Tenant’s Condemnation Share	18
	1.101	Termination Date	18
	1.102	Third Party Lease	18
	1.103	Third Party Lease Estoppel Certificate	18
	1.104	Third Party Lease Spread	18
	1.105	Third Party Lease Renewal Option	19
	1.106	Third Party Lessor	19
	1.107	Trade Equipment	19
	1.108	Transfer Tax Agreement	19
	1.109	Unavoidable Delay	19
	1.110	Uneconomic	19
	1.111	Use Restriction Event	19
	1.112	UST	20
	1.113	UST Upgrade	20
	1.114	Waiver of Subrogation	20

2.	TERM		20

	2.1	Initial Term and Renewal Term(s)	20
	2.2	Default by Tenant	21
	2.3	Title to Tenant Improvements and Personal Property	21

3.	RENT		21

	3.1	Fixed Rent	21
	3.2	Payment; Proration; Etc	21
	3.3	Additional Rent	22
	3.4	No Allocation to Personal Property; Allocation to Royalty Fee	22
	3.5	Offsets	22

iii


4.	ADDITIONAL PAYMENTS BY TENANT; IMPOSITIONS		23

	4.1	Landlord’s Net Return	23
	4.2	Impositions	23
	4.3	Assessments in Installments	24
	4.4	Deposits for Real Estate Taxes	24
	4.5	Leasehold Mortgage Real Estate Tax Deposits	26
	4.6	Direct Payment by Landlord	26
	4.7	Tax Lots	27
	4.8	Utilities	27

5.	USE		27

6.	COMPLIANCE WITH LAW		27

7.	MAINTENANCE AND ALTERATIONS		28

	7.1	Obligation to Maintain	28
	7.2	Tenant’s Right to Perform Alterations	28
	7.3	Plans and Specifications	29
	7.4	Excavations	29
	7.5	Cooperation by Landlord	29
	7.6	USTs	30

8.	PROHIBITED LIENS		30

	8.1	Tenant’s Covenant	30
	8.2	Protection of Landlord	31

9.	ENVIRONMENTAL MATTERS		31

	9.1	Landlord Remediation	31
	9.2	Tenant Obligations	33

10.	INDEMNIFICATION; LIABILITY OF LANDLORD		33

	10.1	Mutual Indemnity Obligations	33
	10.2	Liability of Landlord	34
	10.3	Indemnification Procedures	35
	10.4	Insurance Proceeds	35
	10.5	Survival	35

11.	RIGHT OF CONTEST		36

	11.1	Tenant’s Right	36
	11.2	Landlord’s Obligations and Protections	36
	11.3	Miscellaneous	36
	11.4	Cooperation	36


12.	INSURANCE		37

	12.1	Tenant to Insure	37
	12.2	Nature of Insurance Program	38
	12.3	Policy Requirements and Endorsements	38
	12.4	Deliveries to Landlord	39
	12.5	Deductibles	39
	12.6	Tenant’s Inability to Obtain Insurance	39
	12.7	Waiver of Certain Claims	39
	12.8	No Representation of Adequate Coverage	40

13.	DAMAGE OR DESTRUCTION		40

	13.1	Notice; No Rent Abatement	40
	13.2	Adjustment of Claims; Use of Insurance Proceeds	40
	13.3	Substantial Casualty; Insufficient Proceeds	41
	13.4	End of Term	41

14.	CONDEMNATION		42

	14.1	Substantial Condemnation	42
	14.2	Insubstantial Condemnation	43
	14.3	Temporary Condemnation	45
	14.4	Other Governmental Action	45
	14.5	Prompt Notice; Settlement	45
	14.6	Pelham Manor Rezoning Event	45
	14.7	Use Restriction Event	45

15.	TRANSFERS BY LANDLORD		46

	15.1	Landlord’s Right to Convey	46
	15.2	Tenant’s Right of First Offer	46
	15.3	Tenant’s Right of First Refusal	48
	15.4	Landlord’s Mortgages	49
	15.5	Termination of Purchase Option on Conveyance of Fee Estate	50
	15.6	Sale of Premises; Mergers	50
	15.7	Zoning Lots	50
	15.8	Fleet Mortgage	50

16.	TRANSFERS BY TENANT		52

	16.1	Tenant’s Limited Right	52
	16.2	Permitted Assignments	52
	16.3	Tenant’s Right to Sublet	52
	16.4	Subleases with Single Purpose Entities	53
	16.5	No Release	53


17.	QUIET ENJOYMENT		53

18.	DEFAULT BY TENANT; REMEDIES		54

	18.1	Definition of “Event of Default”	54
	18.2	Remedies for Material Monetary Event of Defaults	55
	18.3	Remedies for Other Events of Default	56
	18.4	Mitigation of Damages	56
	18.5	Tenant’s Late Payments	56
	18.6	Landlord’s Right to Cure	57
	18.7	Holding Over	57
	18.8	Waivers	57
	18.9	Accord and Satisfaction; Partial Payments by Tenant	58
	18.10	Accord and Satisfaction; Partial Payments by Landlord	58
	18.11	Cross-Default	58

19.	TERMINATION		58

20.	NOTICES		59

	20.1	Generally	59
	20.2	Defaults Under Other Agreements	60

21.	NO BROKER		60

22.	THIRD PARTY LEASES		60

	22.1	Subordination; Conflict	60
	22.2	Renewal Options	61
	22.3	Renewals	63
	22.5	Termination of Third Party Lease	65

23.	WAIVERS		66

	23.1	No Waiver by Silence	66
	23.2	No Landlord’s Lien	66

24.	FURTHER ASSURANCES; ADDITIONAL DELIVERIES		66

	24.1	Estoppel Certificates	66
	24.2	Equipment Liens	67
	24.3	Further Assurances	67

25.	OBLIGATIONS UNDER ORIGINAL LEASE		67

	25.1	Generally	67
	25.2	Violations of Law	68
	25.3	Violation of Environmental Law	71
	25.4	No Actions	71


26.	PERMITTED LEASEHOLD MORTGAGES; RIGHTS OF LEASEHOLD MORTGAGEE		71

	26.1	Tenant’s Right to Mortgage Lease	71
	26.2	Rights of Leasehold Mortgagee	72
	26.3	Noncurable Non-Monetary Default	73
	26.4	Delegation of Tenant’s Rights	73
	26.5	Assignment/Sale	74
	26.6	Termination of Lease; New Lease to Mortgagee	74
	26.7	Landlord’s Right to Payment	75
	26.8	Rejection in Bankruptcy	75
	26.9	Conflicts Among Leasehold Mortgagees	75
	26.10	Limited Waiver	76

27.	PERMITTED EXCEPTIONS		76

28.	SINGLE LEASE		76

29.	REPORTING		77

	29.1	Property-Level Reporting	77
	29.2	Tenant Reporting	77

30.	REPRESENTATIONS, WARRANTIES AND COVENANTS		77

	30.1	Landlord’s Representations, Warranties and Covenants	77
	30.2	Tenant’s Representations And Warranties	81
	30.3	Survival	82

31.	LANDLORD DEFAULT		82

	31.1	Landlord Default	82
	31.2	Dispute	82

32.	MISCELLANEOUS		83

	32.1	Force Majeure	83
	32.2	Performance Under Protest	83
	32.3	Legal Costs, Generally	83
	32.4	Access	83
	32.5	Vault Space	84
	32.6	No Third Party Beneficiaries	84
	32.7	Amendment; Amendment of Other Agreements	84
	32.8	Partial Invalidity	84
	32.9	Successors and Assigns	84
	32.10	Recording	84
	32.11	Consequential Damages	85

vii


33.	INTERPRETATION; EXECUTION AND APPLICATION OF RESTATED LEASE		85

	33.1	Governing Law	85
	33.2	Submission to Jurisdiction	85
	33.3	Agent for Service of Process	86
	33.4	Counterparts	86
	33.5	Reasonableness	86
	33.6	Interpretation	87
	33.7	Delivery of Drafts	87
	33.8	Captions	87
	33.9	Restatement Effective Date; Outside Date	87
	33.10	Restatement Effective Date; Estoppel Certificate; Representations	87
	33.11	Entire Agreement; Other Agreements	87

		MASTER LEASE

		ATTACHMENTS:

EXHIBITS

Exhibit “A”		Fee Properties Demised under Original Lease
Exhibit “B”		Third Party Lease and Power Test Lease Locations Demised
		under the 1997 Master Lease
Exhibit “C”		Properties with Inactive USTs
Exhibit “D”		Intentionally Omitted
Exhibit “E”		Intentionally Omitted
Exhibit “F”		Expedited Arbitration Rules
Exhibit “G”		Power Test Leases
Exhibit “H”		Third Party Leases
Exhibit “I”		Landlord’s Fee Mortgages
Exhibit “J”		Petroleum Terminal Properties
Exhibit “K”		Form of SNDA for Existing Fee Mortgages
Exhibit “L”		Pending Condemnations
Exhibit “M”		Power Test Lessor’s Fee Mortgages

SCHEDULES

Schedule 1		Abandoned Properties
Schedule 2		Properties with Non-Complying USTs
Schedule 3		Properties with Ongoing Remediations
Schedule 4		Fixed Rent Adjustment Procedures
Schedule 5		Landlord’s Certificate of Occupancy and GSS Zoning Obligations
Schedule 6		Material Violations of Law
Schedule 7		Intentionally Omitted
Schedule 8		Certain Permitted Leasehold Mortgagees

viii


Schedule 9		Intentionally Omitted
Schedule 10		Real Estate Taxes for Twelve Calendar Months Immediately
		Preceding Restatement Effective Date
Schedule 11		Form of Landlord’s Equipment Lien Waiver
Schedule 12		Form of Lease Modification Agreement for Power Test Leases
Schedule 13		Transferee Lease - Provisions of Restated Lease Not to be
		Included in Transferee Lease
Schedule 14		Pending Actions and Proceedings
Schedule 15		Recently Exercised Third Party Lease Renewals
Schedule 16		Properties Encumbered by Fleet Mortgage

INDEX OF DEFINED TERMS


	1
1997 Master Lease		1
1998 Master Lease		2

	A
Abandoned Properties		2
Additional Rent		2
Affiliate		2
Agent		96
Annual Damage Amount		12
April 1999 Master Lease		3
Award		3

	B
Bankruptcy Default		3
Business Day		3

	C
Casualty		3
Certifying Party		75
Closure		3
Commencement Date		4
Condemnation		4
Construction Work		5
Contamination		5
Contest		42
Costs		59
County		5
CPI		5
CPI Adjustment Factor		5

	D
Default		5
Deletion Request		78
Depository		6
Distribution Agreement		6

	E
Environmental Agreement		6
Environmental Consultant		38
Environmental Law		6
Equipment Liens		6
Estoppel Certificate		7
Event of Default		61

		F
Fee Estate		7
Fee Mortgage		7
First Renewal Term		25
Fixed Rent		8, 26
Fixed Rent Adjustment Procedures		8
Fleet Mortgage		8
Fleet SNDA		58
Foreclosure		58

	G
GAAP		8
Gap Period		94
Gettymart Lease		8
Gettymart Lease Estoppel Certificate		8
Gettymart Lessor		9
Government		9
Governmental Request		9

	H
Hazardous Substances		9

	I
Impositions		9
Improvements		10
Indemnify		10
Indemnitee		10
Indemnitor		11
Initial Term		25
Institutional Lender		11
Insubstantial Condemnation		11

	K
Knowledge		11


	L
Land		1
Landlord		1, 11
Landlord’s Award		11
Landlord’s Offer		54
Landlord’s Organizational Documents		87
Law		12
Lease Box Breach		88
Lease Box Certificate		88
Lease Termination Damages		12
Lease Year		13
Leasehold Estate		13
Leasehold Mortgagee		13
Leemilt’s Lease		13
Leemilt’s Lease Estoppel Certificate		13
Leemilt’s Lessor		14
Legal Costs		13
License Agreement		14
Lukoil USA		96

	M
Major Violation		14
Marketing Parent		14
Material Monetary Default		14
Material Monetary Event of Default		61
Maximum Renewal Term Rent Allocation		70
Merger Agreement		14
Monthly Tax Payment		30
Mortgage		15

	N
New Contamination		15
Non-Material Monetary Default		15
Non-Material Monetary Event of Default		62
Non-Monetary Default		15
Non-Monetary Event of Default		62
Notice		15

	O
Original Gettymart Lease		90
Original Lease		1
Original Term Rent Allocation		70

	P
Pelham Manor Rezoning Event		15
Permitted Exception		16
Permitted Leasehold Mortgage		16
Permitted Leasehold Mortgagee		16
Person		16
Personal Property		16
Personal Property Letter		16
Petroleum Terminal Properties		17
Post-Reorganization Leases		17
Power Test Lease		17
Power Test Lease Estoppel Certificate		17
Power Test Lessor		17
Preexisting Environmental Violation		80
Preexisting Violation		76
Premises		1, 18
Prime Rate		18
Prohibited Lien		18
Properties		18
Property		1, 18

	R
Real Estate Taxes		19
Realty Parent		19
Remediate		19
Renewal Option		20, 25
Renewal Term		25
Renewal Term Rent Allocation		70
Rent		20
Requesting Party		75
Restated Lease		1
Restatement Effective Date		20
Restatement Effective Time		20
Right of First Offer		54
Right of First Refusal		55
ROFR Property		54
Royalty Fee		27

	S
Separate Award Jurisdiction		49
September 1999 Master Lease		20
Service Station Properties		20
SNDA		58
State		20


Sublease		20, 60
Subsidiary		21
Substantial Casualty		21
Substantial Condemnation		21
Subtenant		21
Subtenants		60

	T
Temporary Condemnation		21
Tenant		1, 21
Tenant Improvements		22
Tenant’s Award		22
Tenant’s Condemnation Share		22
Tenant’s Organizational Documents		91
Term		25
Termination Date		22
Third Party Lease		22
Third Party Lease Estoppel Certificate		23
Third Party Lease Non-disturbance Agreement		74
Third Party Lease Renewal Option		23
Third Party Lease Renewal Rental		70
Third Party Lease Spread		23
Third Party Lessor		23
Third Party Offer Notice		55
Trade Equipment		23
Transfer		59
Transfer Tax Agreement		24
Transferee Lease		53

	U
Unavoidable Delay		24
Uneconomic		24
Uneconomic Threshold		78
Use Restriction Event		24
UST		24
UST Upgrade		25

	W
Waiver of Subrogation		25

xii

EXHIBIT 10.11 ENVIRONMENTAL INDEMNITY AGREEMENT DATED NOVEMBER 2, 2000 BETWEEN GETTY PROPERTIES CORP. AND GETTY PETROLEUM MARKETING INC.

ENVIRONMENTAL INDEMNITY AGREEMENT

This ENVIRONMENTAL INDEMNITY AGREEMENT (together with all Exhibits and Schedules attached hereto, this “Indemnity Agreement”), effective as of the Restatement Effective Date, is made and entered into as of November 2, 2000 between Getty Properties Corp., a Delaware corporation, whose address is 125 Jericho Turnpike, Jericho, New York 11753 (formerly known as Getty Realty Corp.,) (as further defined hereinafter, “Landlord”), and Getty Petroleum Marketing Inc., a Maryland corporation whose address is 125 Jericho Turnpike, Jericho, New York 11753 (as further defined hereinafter, “Tenant”) (together referred to as the “Parties”).

RECITALS


A.	Contemporaneously with this Indemnity Agreement, the Parties are executing that certain Consolidated, Amended and Restated Master Lease (the “Restated Master Lease”) and related documents, pursuant to which Landlord leased to Tenant certain lands and subleased or sub-subleased to Tenant certain other lands, together with all right, title and interest of Landlord, if any, in and to certain improvements and appurtenances (together, the “Premises”).

B.	Landlord and Tenant desire to allocate risks associated with certain liabilities, potential liabilities and responsibilities regarding the environmental condition of certain of the Properties.

NOW, THEREFORE, in exchange for good and valuable consideration and of the mutual covenants and agreements contained herein, and as a further inducement to enter the Restated Master Lease, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

SECTION I. DEFINITIONS.


1.	Any term not otherwise defined herein shall have the meaning assigned to such term in the Restated Master Lease. For purposes of this Indemnity Agreement, the following term shall have the following meaning.

	a.	“Highspire Petroleum Terminal Property” shall mean, for purposes of this Indemnity Agreement, any and all land and Improvements at the Highspire Petroleum Terminal, 911 South Eisenhower, Middletown, Pennsylvania, except for the land and Improvements that constitute the terminal loading rack at which Tenant has rights to obtain fuel through operation of a cardlock or similar access system.

SECTION II. LANDLORD’S REPRESENTATIONS AND WARRANTIES.

Landlord represents and warrants to Tenant that, to the knowledge of Landlord, as of the date hereof, except for (i) those Service Station Properties listed on Exhibits D and E to the 1997 Master Lease, Schedules 2 and 3 and Exhibit C to the Restated Master Lease, and Schedule 12 and Schedule Z hereto, (ii) those Service Station Properties and Petroleum Terminal Properties listed on Schedule 7A and Schedule 7B to that certain Informational Side Letter of even date herewith between the parties hereto and on Schedule 3.1(r)(ii) to the Merger Agreement, and


	(iii) those Service Station Properties and Petroleum Terminal Properties set forth in the July 31, 2000 Project Summary Binders:

	a.	There are no material permits, licenses or other authorizations for which Landlord is responsible that are required with respect to the business, operations, assets or current uses of the Service Station Properties or Petroleum Terminal Properties under applicable Environmental Laws that have not been obtained and complied with and are not otherwise in full force and effect.

	b.	Except as authorized by the permits, licenses or Environmental Law: (i) no Hazardous Substances are located on the Service Station Properties or Petroleum Terminal Properties, nor have Hazardous Substances been generated, treated, contained, handled, located, used, manufactured, processed, buried, incinerated, deposited, stored, discharged, refined, dumped, disposed, or released on, under or about any part of the Service Station Properties or Petroleum Terminal Properties by Landlord or any previous owner, tenant, occupant, or user of the Premises except as set forth on Schedule 3 to the Restated Master Lease; and (ii) no Hazardous Substances have migrated from or to the Service Station Properties or Petroleum Terminal Properties upon, under or about other properties in violation of any Environmental Laws.

	c.	Landlord has not received, and is not aware that there is proposed or threatened, with respect to the Service Station Properties or Petroleum Terminal Properties any written notice, demand, request for information, Claim (as hereinafter defined), proceeding, citation, complaint, summons, investigation, order, agreement or litigation alleging violation of Environmental Laws on the Service Station Properties or Petroleum Terminal Properties, or alleging the suspected presence or release of Hazardous Substances thereon, for which Landlord (or Tenant after the Restatement Effective Date) may be liable.

	d.	None of the Service Station Properties or Petroleum Terminal Properties are or have been listed on the National Priorities List, or any other list, schedule, law, inventory or record of hazardous or solid waste sites maintained by any federal, state or local agency, and Landlord has not been designated as a “potentially responsible party” with respect to any such sites.

	e.	Landlord has reported to the applicable Government, to the extent required by the Environmental Laws, any matter required to be reported by Landlord under such Environmental Laws.

SECTION III. PETROLEUM TERMINAL PROPERTIES.

In the event that one or more of the owned Petroleum Terminal Properties set forth on Schedule Y hereto is not in compliance in any respect with any Environmental Law(s) as in effect as of the Restatement Effective Date or if there are conditions existing at any Petroleum Terminal Property as of the Restatement Effective Date that Tenant addresses to ensure continuing compliance, or to mitigate the cost of continuing compliance, with such Environmental Laws or to


		mitigate the potential for future non-compliance with such Environmental Laws, Tenant and Landlord shall share the actual, out-of-pocket costs and expenses related to the Remediation and other compliance-related activities (any such Remediation and other compliance-related activities being referred to herein as the “Preexisting Condition Terminal Compliance”) (Liabilities associated with any Remediation activities at the Newark Petroleum Terminal Property related to or arising from the Industrial Sites Recovery Act (“ISRA”) shall not be considered Preexisting Condition Terminal Compliance, but shall be addressed by Subsection 4 below) as follows:

	a.	First, Tenant shall pay all costs and expenses incurred in connection with such Preexisting Condition Terminal Compliance until the amount so incurred with respect thereto equals $1,500,000 in aggregate.

	b.	Second, Landlord and Tenant shall share equally the next $8,500,000 of such costs and expenses incurred in connection with such Preexisting Condition Terminal Compliance until the amount so incurred with respect thereto equals $10,000,000 in aggregate.

	c.	Third, to the extent that such costs and expenses incurred in connection with such Preexisting Condition Terminal Compliance exceeds $10,000,000, all such costs and expenses shall be borne by Tenant.

	d.	Notwithstanding the above, Landlord shall be solely responsible for the actual, out-of-pocket costs and expenses related to the Preexisting Condition Terminal Compliance for the Highspire Petroleum Terminal Property.

	The net effect of the foregoing provisions is that, for Petroleum Terminal Properties other than the Highspire Petroleum Terminal Property, Landlord shall not pay more than $4,250,000 in connection with all Preexisting Condition Terminal Compliance. Until the amount expended with respect to Preexisting Condition Terminal Compliance exceeds $10,000,000, Tenant shall forward to Landlord copies of all invoices and bills received by Tenant in connection with such Preexisting Condition Terminal Compliance and evidence of Tenant’s payment therefor. Within forty-five (45) days after receipt of such evidence, Landlord shall, if so required pursuant to this Section III, reimburse Tenant for Landlord’s share of the amount paid by Tenant with respect to such invoices and bills.

2.	In connection with any proposed Preexisting Condition Terminal Compliance contemplated at a time when the costs and expenses incurred by Tenant for all prior Preexisting Condition Terminal Compliance expenditures exceed $1,500,000 in aggregate (and Landlord shall not have paid its maximum amount), Tenant shall furnish to Landlord plans setting forth the scope of such project and an estimate of the cost thereof, certified by a reputable environmental engineering firm (a “Terminal Expenditure Plan”).

	a.	Landlord shall have thirty (30) days from the receipt of any such Terminal Expenditure Plan either to approve such Terminal Expenditure Plan or provide Tenant with an alternate Terminal Expenditure Plan, certified by a reputable environmental engineering firm, which alternate Terminal Expenditure Plan shall have the same scope as Tenant’s Terminal Expenditure Plan but may have a lower cost estimate than that set forth in Tenant’s Terminal Expenditure Plan.


	b.	If Landlord fails to approve Tenant’s Terminal Expenditure Plan or to provide Tenant with such alternate Terminal Expenditure Plan within such thirty (30) day period, Landlord’s approval of such Terminal Expenditure Plan shall be deemed granted.

	c.	In the event that Landlord provides Tenant with an alternate Terminal Expenditure Plan, such Preexisting Condition Terminal Compliance shall be conducted in accordance with such alternate Terminal Expenditure Plan, unless Tenant reasonably disapproves of such Terminal Expenditure Plan within seven (7) days of receipt of the same.

	d.	If Tenant fails to respond to such alternate Terminal Expenditure Plan within such seven (7) day period, then Tenant’s approval of such alternate Terminal Expenditure Plan shall be deemed granted.

	e.	If Tenant reasonably disapproves of such alternate Terminal Expenditure Plan and if Landlord and Tenant cannot thereafter promptly agree on a Terminal Expenditure Plan, such dispute shall be resolved by an arbitration conducted in accordance with the applicable provisions set forth in Exhibit F of the Restated Master Lease.

	f.	Except as provided in Subsection g. below, all Preexisting Condition Terminal Compliance shall be conducted in accordance with the Terminal Expenditure Plan.

	g.	In the event of an imminent and substantial endangerment or when, in the reasonable judgment of Tenant, immediate action is necessary to avoid enforcement activities, or a fine and/or penalty in excess of $1500 per day or $100,000 in the aggregate, by an applicable Government, Tenant may take such action as necessary to respond to the imminent and substantial endangerment or to avoid enforcement by the applicable Government, prior to agreement on a Terminal Expenditure Plan and such action shall not affect in any way Landlord’s obligations under this Section.

	All costs and expenses incurred by Landlord related in any way to the development of an alternate Terminal Expenditure Plan (as contemplated by subsection a, above) or by Tenant and Landlord related in any way to arbitration of a dispute concerning a Terminal Expenditure Plan (as contemplated by subsection e., above) shall not be chargeable as costs and expenditures hereunder.

3.	With respect to any Preexisting Condition Terminal Compliance for which Notice has been given in good faith prior to the tenth (10th) anniversary of the Restatement Effective Date, Landlord’s obligations hereunder shall survive and continue in full force and effect until completion of the Terminal Expenditure Plan or Landlord’s fulfillment of its obligations hereunder, whichever is sooner. Landlord shall have no liability or obligation whatsoever hereunder with respect to any Preexisting Condition Terminal Compliance for which Notice has been received after the tenth (10th) anniversary of the Restatement Effective Date.

4.	Landlord shall be solely responsible for any and all liability or obligation at the Newark Petroleum Terminal Property related to or arising from ISRA, except for that liability or obligation under ISRA created or caused by Tenant after the Restatement Effective Date, including but not limited to all liability or obligation related in any way to the Contamination for which Texaco is responsible, or to Contamination discovered as a result of the sampling for


	which the New Jersey Department of Transportation has given notice and shall hold Tenant harmless for any such liability or obligation. Landlord shall retain and continue to exercise whatever rights it may have to compel a third party to fully discharge any Remediation or other related obligations the third party may have under ISRA, and shall remain solely responsible for any associated actual, out-of-pocket costs and expenses. If Landlord fails to compel such third party to fully discharge any Remediation or other similar obligations under ISRA, Landlord shall be fully responsible for the discharge of such responsibilities.

SECTION IV. TENANT’S OBLIGATIONS.

1.	Notwithstanding anything to the contrary herein, in the Restated Master Lease, or any other agreement, Tenant shall have no liability or obligation whatsoever, and Landlord shall indemnify and hold Tenant harmless with respect to any and all allegations, actions, orders, decrees, suits, demands, demand letters, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and fees (hereinafter “Claims”) with respect to a breach of Landlord’s representations in Section II, above, as well as:

	a.	The Highspire Petroleum Terminal Property;

	b.	Any Petroleum Terminal Property and Service Station Property closed, sold or otherwise disposed of prior to February 1, 1997 (the “Spinoff Transaction”);

	c.	Service Stations Properties closed, sold or otherwise disposed of after the Spinoff Transaction and before the Restatement Effective Date, except for the Service Station Properties identified on Schedule Z hereto;

	d.	UST Upgrades at the Service Station Properties for which Landlord is responsible pursuant to Section 7.6 of the Restated Master Lease; and

	e.	Remediation activities at the Service Station Properties for which Landlord is responsible pursuant to Section 9 of the Restated Master Lease.

2.	Notwithstanding anything to the contrary herein, in the Restated Master Lease, or any other agreement, any condition not in full compliance with any Environmental Law as of the Restatement Effective Date at any Service Station Property or Petroleum Terminal Property shall not operate as a lease default and Tenant shall have no liability or obligation whatsoever to engage in any Remediation or other compliance-related activity with respect to any such non-compliance condition as of the Restatement Effective Date at any such Service Station Property or Petroleum Terminal Property, except when required by a bona fide Claim asserted by an applicable Government or a party other than Landlord or any Landlord affiliate (excluding any Claim relating to any breach of Landlord’s representations in Section II, above), provided, however, that at any time, in Tenant’s sole discretion, Tenant may engage in any Remediation or other compliance-related activity with respect to any Service Station Property or Petroleum Terminal Property. Landlord shall not take any action (i) reasonably likely to cause an applicable Government or a party other than Landlord to assert a Claim that seeks such Remediation or other compliance-related activity or (ii) to compromise, admit any fact, concede liability or otherwise materially prejudice Tenant’s ability to defend any actual or potential Claim. Tenant shall not be deemed to be required by a bona fide Claim to take action if Tenant


	has a reasonable, good faith basis for asserting a challenge or defense and Tenant is, in fact, diligently challenging or defending against such Claim. So long as Tenant has a reasonable, good faith basis for asserting a challenge or defense and Tenant is, in fact, diligently challenging or defending against such Claim, any condition that is the subject of Tenant’s challenge or defense shall not operate as a lease default.

3.	Except as set forth in this Indemnity Agreement and in the Restated Master Lease, Landlord shall have no liability to Tenant for any environmental matter related to the Service Station Properties or Petroleum Terminal Properties.

SECTION V. LANDLORD’S ADDITIONAL OBLIGATIONS.

1.	LANDLORD’S COOPERATION. Landlord hereby grants Tenant the right to exercise Landlord’s rights to compel each third party listed on Schedule 12 hereto to discharge fully any Remediation or other similar obligations that such third party may owe to Landlord pursuant to any purchase and sale or similar agreement for any of those Properties (a “Sale Agreement”). Tenant shall comply with all applicable obligations of Landlord under any Sale Agreement, including, without limitation, Landlord’s obligation to provide for and permit access to the Property that is the subject matter of such Sale Agreement by such third party and/or its employees, agents and contractors in the manner set forth in such Sale Agreement. Such third parties shall be solely responsible for fulfilling all Remediation and similar obligations, and Landlord shall under no circumstance have any obligation or liability with respect thereto, except as may be specifically required by Article 9 of the Restated Master Lease. If such rights of Landlord under any such Sale Agreement are not assignable, then Landlord shall cooperate with Tenant (which cooperation may include, without limitation, litigation) as Tenant shall reasonably request, and at Tenant’s expense (including, without limitation, Indemnifying Landlord), so as to enforce the performance of such third party obligations under such Sale Agreement.

2.	RESTATEMENT EFFECTIVE DATE. Upon the occurrence of the Restatement Effective Date, Landlord shall deliver to Tenant a certificate containing representations as of the Restatement Effective Date substantially identical to those contained in Section II, except that the Exhibits and Schedules referred to in that Section shall, for the purposes of such certificate, contain such modifications or amendments as may be necessary to cause the representations contained in such certificate to be true and correct as of the Restatement Effective Date. In no event, shall the modifications or amendments to the Exhibits and Schedules serve to cure any breach of the representations made on the date hereof.

SECTION VI. MISCELLANEOUS PROVISIONS.

1.	AMENDMENT AND MODIFICATION. Any amendment or modification to this Indemnity Agreement must be in writing signed by both of the Parties hereto.

2.	ASSIGNMENT. This Indemnity Agreement and all of the provisions hereof shall bind and benefit the Parties hereto and their respective successors and permitted assigns. Nothing in this Indemnity Agreement, expressed or implied, is intended or shall be construed to confer upon any person other than the Parties hereto, and their respective successors and assigns, any right,


	remedy, or Claim under or by reason of this Indemnity Agreement or any provision herein contained. Both Parties have the right to assign (and each successive assignee may further assign) their rights under this Indemnity Agreement to any person or entity, which such person or entity by acceptance of such assignment shall be deemed to assume all liabilities, indebtedness and obligations included in the rights assigned.

3.	GOVERNING LAW. This Indemnity Agreement and its interpretation and performance shall be governed by and construed and regulated in accordance with the laws of the State of New York, without regard to principles of conflicts of law.

4.	COUNTERPARTS. This Indemnity Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument and shall become a binding agreement when one or more of the counterparts have been signed by each of the Parties and delivered to the other party.

5.	AGENT FOR SERVICE OF PROCESS. Tenant hereby irrevocably names and designates Lukoil Americas Corporation, a Delaware corporation whose address is 540 Madison Avenue, New York, NY, as Tenant’s agent (Tenant’s “Agent”) for service of process, including all notices required to institute any proceeding in any court or in any other way required to confer personal jurisdiction over Tenant in any court, and for the receipt of any Notices or other communications required under this Indemnity Agreement, including any and all Notices under this Indemnity Agreement issued for the purpose of demanding compliance with this Indemnity Agreement. Service or demand upon Agent shall be good and sufficient service and demand upon Tenant for all purposes, including, without limitation, the purpose of obtaining personal jurisdiction over Tenant for any legal action or proceeding or for the purpose of commencing any proceeding. Tenant agrees to take any and all action necessary to continue Agent’s designation in full force and effect. If Agent becomes unable to act as Agent for any reason then Tenant shall forthwith irrevocably designate a replacement Agent satisfying the requirements of this Section that would apply to any replacement Agent, as set forth in the next sentence. By Notice to Landlord (but no more frequently than once every six months), Tenant may substitute in place of Agent any other Person having full-time business offices and a street address in Manhattan. Tenant agrees that delivery of any Notice to Agent, or any service of process upon Agent, in accordance with the notice requirements of this Indemnity Agreement, shall constitute valid and effective personal service upon Tenant. Any such Notice or service of process shall be effective in accordance with the provisions of this Indemnity Agreement relating to Notices. Any failure of Agent to give any notice of such service of process or Notice to Tenant shall not impair or affect the validity of such Notice, service of process, or any judgment rendered in any proceeding based thereon.

6.	ENTIRE AGREEMENT. This Indemnity Agreement embodies the entire agreement and understanding of the Parties hereto in respect of the subject matter contained herein. There are no separate understandings or agreements, oral or written, between the Parties with respect to the subject matter contained herein. This Indemnity Agreement supersedes all prior agreements and understandings between the Parties with respect to such subject matter. The Restated Master Lease contains certain parallel provisions, but in the event of any conflict between this Indemnity Agreement and the Restated Master Lease, this Indemnity Agreement governs and controls.


7.	HEADINGS. The article and section headings contained in this Indemnity Agreement are for convenience and reference purposes only and shall not affect in any way the meaning or interpretation of this Indemnity Agreement.

8.	SEVERABILITY. If any one or more terms or provisions contained in this Indemnity Agreement or the application of such terms or provisions shall, for any reason and to any extent, be held to be invalid, illegal or unenforceable in any respect, then the remainder of this Indemnity Agreement, or the application of terms or provisions to persons or circumstances other than those as to which it is invalid, illegal or unenforceable, shall not be affected by such invalidity. All remaining provisions of this Indemnity Agreement shall be valid and enforced to the fullest extent permitted by law.

9.	FURTHER ASSURANCES. Each party to this Indemnity Agreement agrees to execute such documents or instruments, and to take such action, as the other party may reasonably request after the date hereof in order to effectuate and perfect the indemnification contemplated hereby.

10.	THIRD PARTY BENEFICIARY. The Landlord and Tenant are the intended beneficiaries of this Indemnity Agreement.

11.	SUBMISSION TO JURISDICTION. Each of the Parties to this Indemnity Agreement hereby submits to the exclusive jurisdiction of the United Stated District Court for the Southern District of New York for purposes of all legal proceedings arising out of or relating to this Indemnity Agreement and the estates and relationships created hereby. If the Parties hereto are unable to submit to the jurisdiction of the United States District Court for the Southern District of New York notwithstanding reasonably diligent efforts to do so, then the Parties shall submit to the exclusive jurisdiction of any New York State court sitting in New York County, New York. Each of the Parties to this Indemnity Agreement hereby irrevocably waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceedings brought in any such court and any Claim that any such proceeding brought in any such court has been brought in an inconvenient forum.

12.	INTERPRETATION. No inference in favor of or against any party shall be drawn from the fact that such party has drafted any portion of this Indemnity Agreement. The Parties have both participated substantially in the negotiation, drafting and revision of this Indemnity Agreement with representation by counsel and such other advisers as they have deemed appropriate. The words “include” and “including” shall be construed to be followed by the words: “without limitation.”

13.	REMEDIES. Any breach by Tenant of any obligation or undertaking herein shall not, under any circumstances, absolve Landlord of its obligations and undertakings herein. The sole remedies available to Landlord upon breach by Tenant shall be the ability to seek injunctive relief to ensure compliance and to seek actual damages accrued as a result of the breach.

IN WITNESS WHEREOF, the Parties have caused this Indemnity Agreement to be signed by their respective officers thereunto duly authorized as of the date above.


Getty Properties Corp.

By:	/s/ John Fitteron

	Name:	John Fitteron

	Title:	Senior Vice President


Getty Petroleum Marketing Inc.

By:	/s/ Leo Liebowitz

	Name:	Leo Liebowitz

	Title:	Chairman and Chief
		Executive Officer

SCHEDULE Y

(Petroleum Terminal Properties)


Newark Petroleum Terminal	86 Doremus Avenue	Newark, NJ

Mt. Vernon Petroleum Terminal	4301 Boston Post Road	Bronx, NY

Long Island City Petroleum Terminal	3023 Greenpoint Ave.	Long Island, NY

New Haven Petroleum Terminal	85 Forbes Avenue	New Haven, CT

E. Providence Petroleum Terminal	Massasoit Ave. and Dexter Road	E. Providence, RI

Rensselaer Petroleum Terminal	49 Riverside Avenue	Rensselaer, NY

EXHIBIT 10.12 AMENDED AND RESTATED TRADEMARK LICENSE AGREEMENT, DATED NOVEMBER 2, 2000, BETWEEN GETTY PROPERTIES CORP. AND GETTY PETROLEUM MARKETING INC.

AMENDED AND RESTATED
TRADEMARK LICENSE AGREEMENT

THIS AMENDED AND RESTATED TRADEMARK LICENSE AGREEMENT (together with all Schedules attached hereto and made a part hereof, this “License Agreement”), effective as of the Restatement Effective Date (as defined in the Master Lease (as hereinafter defined)), is entered into by and between: Getty Properties Corp. (f/k/a Getty Realty Corp.) (hereinafter called “REALTY”), a corporation organized and existing under the laws of the State of Delaware, located at 125 Jericho Turnpike, Jericho, New York 11753; and Getty Petroleum Marketing Inc. (together with any successors and permitted assignees, hereinafter called “MARKETING”), a corporation organized and existing under the laws of the State of Maryland, located at 125 Jericho Turnpike, Jericho, New York 11753.

WHEREAS, REALTY is the owner of certain trademarks, service marks and trade names that have been utilized in, among other businesses, the motor fuels marketing business, as conducted in certain areas of the United States (defined below as the Licensed Territory);

WHEREAS, REALTY has leased and subleased various motor fuels outlet properties to MARKETING under certain net lease agreements, all of which net lease agreements have been incorporated, consolidated, amended and restated as of the date hereof pursuant to that certain Consolidated, Amended and Restated Master Lease between REALTY, as landlord, and MARKETING, as tenant (as so incorporated, consolidated, amended and restated, the “Master Lease”);

WHEREAS, REALTY licensed certain trademarks, service marks and trade names to MARKETING for use in its marketing business pursuant to the Trademark License

Agreement between Getty Properties Corp. and MARKETING dated February 1, 1997 (the “Original License Agreement”) in the Original Licensed Territory (as defined below);

WHEREAS, REALTY and MARKETING seek to amend and restate in its entirety the Original License Agreement;

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, the parties hereby amend, restate and supersede the Original License Agreement in its entirety as follows:


	1.	DEFINITIONS

A. “Affiliate” means any stockholder of MARKETING that beneficially owns at least a majority of the then issued and outstanding capital stock of MARKETING or any wholly-owned or majority-owned subsidiary of MARKETING that are involved in the Marketing Business (as defined hereinafter).

B. “Branded Gasoline” means gasoline that is sold through a Branded Outlet and is identified using any of the Licensed Marks.

C. “Branded Outlet” means a retail service station with signage bearing any of the Licensed Marks and located in the Licensed Territory that is, or is hereafter, owned or operated by MARKETING or persons that sublicense the Licensed Marks from MARKETING pursuant to Paragraph 2C hereof.

D. “Licensed Marks” means the trademarks, service marks or trade names listed on Schedule A attached hereto and as subsequently included pursuant to Paragraph 6C hereof.

E. “Licensed Territory” means the following states and district, as applicable, of the United States: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,

Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia and the District of Columbia.

F. “Marketing Business” means: (i) the purchase, storage, distribution, marketing, and sale of gasoline, diesel fuel and other related products at wholesale and through terminals and a retail service station network; (ii) the operation of convenience stores; and (iii) the purchase, storage, transportation and sale of home heating oil to residential and commercial customers in mid Hudson Valley, New York. By way of example, “Marketing Business” does not include the real estate business previously carried on by Getty Petroleum Corp., which is currently being carried on by REALTY.

G. “Material Non-Monetary Default” means a material breach or breaches of MARKETING’s obligations under this License Agreement that reasonably would be expected to result in a significant and lasting diminution of the value of the Licensed Marks in the Marketing Business.

H. “Original Licensed Territory” means the following states of the United States: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia and West Virginia.


	2.	GRANT OF LICENSE

A. Subject to the terms and conditions set out herein, REALTY grants to MARKETING an exclusive license to use the Licensed Marks in the Licensed Territory in connection with its Marketing Business. The license shall be royalty-free except for the royalty payments required to be made pursuant to the Master Lease, which such payments are defined therein as the “Royalty Fee.”

B. MARKETING and any Affiliate may use and continue to use the name “Getty” in the name under which it incorporates, organizes or conducts its business and its subsidiaries; provided that there is no likelihood of confusion between MARKETING’s and its subsidiaries’ incorporated name and Getty Properties Corp. or Getty Realty Corp., and that the use of the name “Getty” in MARKETING’s or its subsidiaries’ incorporated name does not exceed REALTY’s rights to the name “Getty”. The parties agree that the use by MARKETING and its subsidiary of the incorporated names Getty Petroleum Marketing Inc. and Getty Terminals Corp. does not create any likelihood of confusion. MARKETING or any Affiliate may use the name “Getty” in combination with the name “Lukoil”, or any variation thereof, and any other name under which OAO LUKOIL operates, or subsequently operates, all or part of its operations, in the names under which such entities incorporate, organize or conduct their respective businesses, provided that such use of the name “Getty” does not exceed REALTY’s rights to the name “Getty” and does not create a likelihood of confusion with Getty Properties Corp. or Getty Realty Corp. The act of combining the name “Lukoil”, or any stylistic variation thereof, or any other name with the name “Getty” or using such combined name in commerce shall give no rights to REALTY to use the names combined with “Getty”. Upon the request of MARKETING, REALTY shall execute and deliver to MARKETING any consents that may be required from time to time by the secretary of state or similar office of a state, commonwealth or other jurisdiction in order for MARKETING or any Affiliate to use the name “Getty” in the name under which it incorporates, organizes or conducts its business. MARKETING accepts the license subject to the terms and conditions of this License Agreement.

C. Subject to the consent of REALTY, which consent shall not be unreasonably withheld or delayed, MARKETING may sublicense the Licensed Marks to

retailers or wholesalers of petroleum and other related products and operators of convenience stores, including but not limited to service station retailers, jobbers and distributors, but only subject to the terms and conditions of this License Agreement, all of which shall be equally binding on the sublicensees. In determining the reasonableness of a refusal to consent to a sublicense, the parties shall be guided by the following considerations: (i) the parties shall not knowingly take any action which would materially tarnish the image or cause a material adverse impact on the value of the Licensed Marks; and (ii) the parties shall not permit the indiscriminate proliferation of sublicensees which would reasonably be expected to cause the Licensed Marks to lose significance as a source of origin. In connection with any sublicense granted hereunder, the sublicensee shall be required to agree in writing to be bound by and comply with all terms and conditions of this License Agreement, except the obligation to pay royalty fees under the Master Lease which shall remain an obligation of MARKETING.

REALTY hereby consents to the sublicensing of the Licensed Marks pursuant to this Paragraph 2C and authorizes MARKETING to make amendments and revisions in those sublicenses that are not of a material nature.

D. Nothing in this License Agreement shall be construed as restricting MARKETING’S ability to (i) purchase, store, distribute, market, or sell gasoline, diesel fuel and other related products at wholesale and through terminals and a retail service station network, (ii) to operate convenience stores and (iii) to purchase, store, transport and sell home heating oil to residential and commercial customers in Mid-Hudson Valley, New York, in the Licensed Territory, in each case using any trademark, trade name or service mark other than the Licensed Marks.


	3.	OWNERSHIP OF MARKS

MARKETING acknowledges REALTY’s ownership of the Licensed Marks in the Licensed Territory. MARKETING agrees that it will do nothing inconsistent with such ownership and that all use of the Licensed Marks by MARKETING shall inure to the benefit of, and be on behalf of, REALTY. MARKETING agrees that nothing in this License Agreement shall give MARKETING any right, title or interest in the Licensed Marks other than the right to use the Licensed Marks in accordance with this License Agreement. MARKETING agrees that it will not attack the title of REALTY to the Licensed Marks or attack the validity of the rights granted under this License Agreement.


	4.	QUALITY STANDARDS

MARKETING agrees that the nature and quality of all services rendered by MARKETING in connection with the Licensed Marks; all goods sold by MARKETING under the Licensed Marks; and all related advertising, promotional and other related uses of the Licensed Marks by MARKETING shall conform to reasonable standards set by and be under the control of REALTY. MARKETING agrees that the quality of all such services, goods, and advertising and promotional materials associated with the Licensed Marks shall be of the same high-level quality as previously associated with the Licensed Marks. MARKETING further agrees that the quality of all such services, goods, and advertising, promotional and other related uses of the Licensed Marks shall conform with the standards, specifications, and instructions as established by REALTY or such subsequent standards, specifications, or instructions reasonably comparable thereto promulgated by MARKETING subject to the approval of REALTY, such approval not to be unreasonably withheld or delayed. MARKETING shall be deemed to have complied with the quality standards in existence from time to time under this License Agreement so long as MARKETING maintains the physical condition of, and the services provided through,

Branded Outlets not materially worse than the physical condition and level of service generally characteristic on the date hereof of retail service stations of MARKETING and its sublicensees that use the Licensed Marks. Except as may be required by law or as reasonably necessary to protect the Licensed Marks, REALTY shall not set quality standards higher than those generally characteristic on the date hereof of services rendered and goods sold through retail service stations of MARKETING and its sublicensees that use the Licensed Marks. REALTY shall not set quality standards for other licensees of the Licensed Marks that are lower than those set for MARKETING from time to time during the term of this License Agreement. Without limiting the generality of the foregoing, MARKETING agrees to comply with the standards, specifications, and instructions set out in Schedule B hereto, as may be modified from time to time in accordance with this Paragraph 4. If MARKETING intends to use the Licensed Marks on a new product within the ambit of a particular registration it shall request approval for such new product from REALTY at least thirty (30) days prior to initiating such new product use, and such approval shall not be unreasonably withheld by REALTY. REALTY shall provide MARKETING with notice of approval or non-approval, as the case may be, within thirty (30) days of the receipt of the notice with respect to MARKETING’s intended new product; provided that REALTY shall be deemed to have given such approval if REALTY fails to deliver to MARKETING any notice within such 30-day period. If REALTY rejects any proposal to use any of the Licensed Marks with a new product, then REALTY shall provide a reasonably detailed explanation to MARKETING as to why REALTY found the proposed use of the Licensed Marks unacceptable. MARKETING may resubmit to REALTY, and REALTY shall give reasonable consideration to, an amended proposal for such new product.


	5.	QUALITY MAINTENANCE

MARKETING agrees to cooperate with REALTY in facilitating REALTY’s control of the nature and quality of goods, services and related uses associated with the Licensed Marks, to permit reasonable inspection of MARKETING’s operations once in any four-month period during normal business hours and upon ten day’s prior written notice, and to supply REALTY with specimens of all uses of the Licensed Marks upon request. REALTY shall have no right to inspect the books and records of MARKETING other than those books and records reasonably related to the use of the Licensed Marks by MARKETING in accordance with the terms of this License Agreement, and REALTY shall maintain all such information in the strictest of confidence. MARKETING shall comply with all applicable laws and regulations, including, but not limited to laws and regulations applicable to the storage and sale of gasoline at Branded Outlets and will obtain all appropriate government approvals pertaining to the sale, distribution and advertising of goods and services covered by this License Agreement. REALTY shall have the right to enter and inspect up to fifteen Branded Outlets in any three-month period, which number, for purposes of clarification, includes Branded Outlets operated by sublicensees of the Licensed Marks. REALTY shall have the right to receive from MARKETING, upon request and without charge, a reasonable number of samples of products sold by MARKETING as well as labels, promotional materials, advertising materials, sales materials and related materials using any of the Licensed Marks.


	6.	FORM OF USE

A. MARKETING agrees to use the Licensed Marks only in the form, manner and trade dress and with appropriate legends as reasonably prescribed from time to time by REALTY, and not to use any other trademark, trade name, trade dress, or service mark in combination with any of the Licensed Marks without prior written approval of REALTY.

REALTY hereby approves of the use of the Licensed Marks used in combination with other trademarks, trade names, trade dress, or service marks set out in Schedule C.

B. MARKETING shall submit to REALTY for prior approval all new or revised labels that are a material departure from those presently used at least sixty (60) days prior to initiating use of a revised or new label. REALTY’s approval shall not be unreasonably withheld or delayed. REALTY shall provide MARKETING with notice of approval or non-approval, as the case may be, within thirty (30) days of the receipt of the notice with respect to MARKETING’s intended new or revised label; provided that REALTY shall be deemed to have given such approval if REALTY fails to deliver to MARKETING any notice within such 30-day period. If REALTY rejects any proposal to use any new or revised labels, then REALTY shall provide a reasonably detailed explanation to MARKETING as to why REALTY found the proposed labels unacceptable, and MARKETING may resubmit to REALTY, and REALTY shall give reasonable consideration to, any amended proposal for such new or revised label.

C. If during the term of this Agreement REALTY owns or obtains the right to use any trademark, service mark or trade name that incorporates the name “Getty” and is associated with the Marketing Business, REALTY promptly shall give written notice of such new trademark, service mark or trade name to MARKETING, and upon the written request of MARKETING, such trademark, service mark or trade name shall become a Licensed Mark.


	7.	TRADEMARK NOTICES

MARKETING will utilize on its products bearing the Licensed Marks, packaging and advertising, whatever lawful notice is reasonably requested in writing by REALTY in order to protect the Licensed Marks and properly designate REALTY’s legal ownership thereof. Without limiting the foregoing, MARKETING agrees to utilize, where commercially practicable, a notice sufficient to indicate that each of the utilized Licensed Marks is a registered trademark

of Getty Properties Corp. If REALTY does not request a particular trademark notice, MARKETING shall utilize such notice as in the opinion of its counsel is appropriate in order to protect the Licensed Marks and properly designate REALTY’s legal ownership thereof and the fact of registration thereof. However, MARKETING shall advise REALTY of each such intended notice, and make any changes thereto reasonably requested by REALTY.


	8.	APPROVALS AND PROTECTION OF THE LICENSED MARKS

In discharging their respective rights and obligations with respect to Paragraphs 4, 5, 6, or 7 above, the parties shall be guided by the following consideration: The parties shall not knowingly take any action which would materially tarnish the image or cause a material adverse impact on the value of the Licensed Marks including, without limitation, the indiscriminate proliferation of uses of the Licensed Marks which would cause any of the Licensed Marks to lose significance as a source of origin. If there is any dispute as to either party’s obligations with respect to Paragraphs 4, 5, 6, or 7 above, or the application thereof, the parties shall promptly consult to resolve the matter. If the parties cannot resolve the matter, the dispute shall be submitted to arbitration in accordance with Paragraph 15 below and the arbitrator in that case shall be guided by the same considerations described above in this Paragraph 8.


	9.	CONFLICTING TRADEMARKS

MARKETING will not at any time adopt or use, without REALTY’s prior written consent, any word, mark, or designation which is similar or likely to be confused with any of the Licensed Marks.


	10.	FUTURE DOCUMENTS, RECORDING AND TRADEMARK MAINTENANCE

A. The parties agree to cooperate in the execution and delivery, from time to time, throughout the term of this License Agreement, of any documents that may be reasonably required or desirable to effectuate and carry out the purpose and intent of this License Agreement. Such documents shall include instruments required to file, renew, protect, perfect and/or maintain the Licensed Marks and REALTY’s ownership therein, or to provide for the granting of any license hereunder. Without limiting the generality of the foregoing, REALTY shall enter MARKETING or its local designee or cause MARKETING or its local designee to be entered as a registered user of the Licensed Marks wherever necessary or desirable, and MARKETING and/or its local designee shall, upon written request, execute such registered user agreements.

B. Except as provided in Paragraph 11B below with respect to infringement of the Licensed Marks by third parties, REALTY shall take such action as is reasonably required or desirable to obtain and maintain appropriate protection, of the Licensed Marks applicable to MARKETING’s business. Except as provided in Paragraph 11B below, with respect to infringement of the Licensed Marks by third parties, REALTY shall bear the full cost of all trademark filings, renewals, registered user entries and actions to protect, perfect or maintain the Licensed Marks applicable to the Marketing Business, including the attorney’s and local agent’s fees, taxes, government filing and other fees.


	11.	INFRINGEMENT AND OTHER ACTIONS

Mark infringes the trademark or trade name rights of such third party, or (iii) in which the revocation, cancellation or declaration of invalidity of any of the Licensed Marks is sought. REALTY and MARKETING shall consult with respect to each such claim, action, or proceeding, the assertion of counterclaims thereto and the settlement thereof and shall jointly defend, in the name of REALTY and/or in the name of MARKETING, each such action or proceeding that is commenced. If an action or proceeding brought by a third party concerns the registrations and/or products of both REALTY and MARKETING, both REALTY and MARKETING shall be responsible for their pro rata share of legal expenses incurred in defending such action or proceeding, said pro rata share to be determined by the proportion of products and/or registrations at issue in the third party action or proceeding. If there is a disagreement as to the appropriate pro rata share of legal expenses to be borne by each party, the matter shall be submitted to arbitration in accordance with Paragraph 15 below. If the claim or action concerns only products (other than claims pertaining to the Licensed Marks) and/or registrations of MARKETING, MARKETING shall bear all legal expenses incurred in defending such actions and proceedings and bear all damages and costs, if any, recovered by the third party.

B. REALTY and MARKETING will each undertake commercially reasonable efforts to learn of any unauthorized uses of the Licensed Marks. Promptly upon receiving notice or knowledge thereof, the parties shall notify each other of any infringement or other violation by a third party of any of the Licensed Marks. REALTY and MARKETING shall consult with respect to any such infringement, and any action or proceeding, including opposition and cancellation actions, that may be brought against such infringement. REALTY shall exercise its discretion with respect to taking appropriate action including the bringing of

actions at REALTY’s expense in the name of REALTY and/or MARKETING, but shall not be obligated to take any action or institute any proceedings. If such action or proceeding is commenced by REALTY, it shall promptly notify MARKETING and MARKETING shall cooperate, including the defense of counterclaims, and REALTY shall bear the expenses of MARKETING except for fees charged by any attorneys retained solely by MARKETING in connection with such cooperation. MARKETING shall be given an opportunity to participate with counsel of its choice bearing its own legal and other costs.

In the event that REALTY determines not to commence such action or proceeding at its expense, it shall promptly notify MARKETING. MARKETING may then, at its expense, initiate such action or proceedings in its capacity as a licensee of such Licensed Marks, provided however, that MARKETING must obtain the prior written approval of REALTY regarding commencement of such action, such consent not to be unreasonably withheld. The foregoing notwithstanding, in the event of any unauthorized use of the Licensed Marks by one of MARKETING’S sublicensees, MARKETING shall undertake efforts to cause the unauthorized use to stop. In the event those efforts are unsuccessful, MARKETING shall, at its expense, initiate such action or proceedings in its capacity as a licensee of such Licensed Marks with respect to such unauthorized use. REALTY shall cooperate with MARKETING in any such proceeding or action, including the defense of any counterclaims, and MARKETING shall bear the expenses of REALTY, except for fees charged by any attorneys retained solely by REALTY in connection with such cooperation. REALTY may, if not a party, join in, with counsel of its own choice, bearing its own legal and other costs. The party bringing any action or proceeding under this sub-paragraph (B) shall keep the other party informed of the proceedings and give the other party an opportunity to participate in any settlements, but the final decision whether to

settle the action or proceeding shall be made by the party bringing the action or proceeding, subject to the approval of REALTY (if not a party), such approval not to be unreasonably withheld. If within ten (10) business days or such shorter time period as shall be reasonably practicable under the circumstances REALTY does not approve a proposed settlement recommended by MARKETING in good faith, REALTY shall be deemed to have taken over responsibility for the action or proceeding, including subsequent legal fees, awards against REALTY or MARKETING and expenses relating thereto. No settlement by either party shall bind the other to make any payment or suffer any loss of existing or future rights without such other party’s consent, which shall not be unreasonably withheld. Any recovery in such action or proceeding shall be applied first to reimburse the party or parties for its or their legal expenses in maintaining such action or proceeding. The excess shall belong to the party maintaining the action or proceeding at the time such recovery is awarded. If the action is brought jointly and the recovery is not sufficient to reimburse REALTY and MARKETING for their legal expenses in such action, the unreimbursed portion of such legal expenses shall be borne equally by each party.


	12.	TERM

This License Agreement shall continue in force and effect until fifteen years from the effective date of this License Agreement unless sooner terminated as provided for herein. This License Agreement shall be automatically renewed when and to the extent that the Master Lease is extended. All extended terms of this License Agreement shall be coterminous with the Master Lease.


	13.	TERMINATION AND BREACH

This License Agreement shall be terminated upon (a) the voluntary filing by MARKETING of a bankruptcy petition or an involuntary bankruptcy proceeding having been

commenced and not stayed or terminated within 120 days of such commencement or (b) the termination of the Master Lease in accordance with its terms. REALTY shall have the right to terminate this License Agreement upon the determination that a Material Non-Monetary Default has occurred, as provided in this Paragraph 13, and such Material Non-Monetary Default has not been cured by MARKETING within one year of such determination or within thirty (30) days of such determination if the breach giving rise to such Material Non-Monetary Default is the commingling of Branded Gasoline as described in Section 1 of Schedule B attached hereto. REALTY’s only remedy with respect to breaches by MARKETING other than Material Non-Monetary Defaults shall be to seek damages or injunctive relief. In the event of any breach or threatened breach of this License Agreement or a claimed Material Non-Monetary Default, notice shall be given and the parties shall promptly consult in good faith to cure such breach, with the party at fault being given an adequate period of time to remedy the matter. If such breach or claimed Material Non-Monetary Default is not cured within sixty (60) days of the notice, the matter may be submitted to arbitration in accordance with Paragraph 15 below, which may include a determination whether a material breach or Material Non-Monetary Default, as the case may be, has occurred and/or been cured. In the event the arbitrator determines that a material breach has occurred, the arbitrator shall not be authorized to terminate this License Agreement but shall be authorized to issue any other order or award any other relief deemed appropriate, including, without limitation, injunctive relief.


	14.	EFFECT OF TERMINATION

Upon termination of this License Agreement, MARKETING agrees (a) to immediately discontinue all use of the Licensed Marks and any term confusingly similar thereto, and to delete the same from its corporate or business name; (b) to cooperate with REALTY or its appointed agent to apply to the appropriate authorities to cancel any recording of this License

Agreement from all government records; (c) to use reasonable best efforts to destroy or cause the destruction of all printed materials and signs bearing any of the Licensed Marks; (d) that all rights in the Licensed Marks and the good will connected therewith shall remain the property of REALTY; (e) to cause all sublicenses to terminate; and (f) to use reasonable best efforts to cause all sublicensees to immediately discontinue all use of the Licensed Marks and any term confusingly similar thereto, and to delete the same from their respective business names, if applicable. Notwithstanding the foregoing, MARKETING and its sublicensees may continue to sell all goods bearing any of the Licensed Marks on packaging in inventory at the time this License Agreement is terminated for a period of 30 days.


	15.	ARBITRATION

Any controversy or claim arising out of, or relating to, this License Agreement or its interpretation, performance or nonperformance or any breach thereof, which the parties are unable to resolve between themselves, shall first be submitted to a single arbitrator who shall be knowledgeable in marketing and trademark matters. The arbitrator shall be mutually appointed by the parties, and shall not be bound by rules of the American Arbitration Association, but shall adopt such procedures as shall appear appropriate to expedite decision making, in order that disputes may be resolved within commercially reasonable time periods. If the parties cannot agree on the selection of the arbitrator, the arbitrator shall be selected by The American Arbitration Association. Each party shall bear its own costs in any such proceeding. The decision of the arbitrator shall be final and binding upon the parties and may be enforced in any court of competent jurisdiction.


	16.	REPRESENTATIONS AND WARRANTIES

REALTY hereby represents and warrants to Marketing that: (a) REALTY has title to the Licensed Marks in the Licensed Territory free and clear of any liens and

encumbrances; (b) to REALTY’s knowledge, the Licensed Marks do not infringe any trademark or other proprietary or intellectual property right of any third party; (c) REALTY has the right, power and authority to enter into this License Agreement and to perform all of REALTY’s obligations hereunder; (d) REALTY has not granted to any third party a license for the Licensed Property that would conflict with the rights granted to MARKETING hereunder; and (e) to REALTY’s knowledge the Licensed Marks are the only trademarks, service marks or trade names that incorporate the name “Getty” in the Marketing Business.


	17.	GENERAL PROVISION

A. Assignability: This license may be assigned by either party to the successor in interest or assignee of substantially all of its business or assets, or the surviving party of any merger or consolidation to which it is a party provided that the assignee of any assignment assumes all the assignor’s obligations hereunder. Without the prior written consent of REALTY, MARKETING shall be permitted to assign this License Agreement to any majority-owned subsidiary of MARKETING or a wholly-owned subsidiary of Lukoil Americas Corporation, provided that the Master Lease is also assigned to any such subsidiary. Apart from any assignment permissible under the preceding sentences of this paragraph 16A, MARKETING may not otherwise, assign the license granted herein or the obligations undertaken herein without the prior written consent of REALTY, which consent shall not be unreasonably withheld or delayed.

B. Notices: Any notice, approval, consent or other communication required or permitted hereunder shall be in writing and shall be given by personal delivery or telecopy, with acknowledgement of receipt, or by prepaid registered mail, return receipt requested, addressed to the party at its address first above written, to the attention of its General Counsel, or to any other address that either party may subsequently designate, by notice in accordance with

this paragraph. Notices and other communications hereunder shall be deemed effective one (1) day after dispatch, if personally delivered or telecopied, and three (3) days after dispatch, if posted, subject to proof of delivery.

C. Waiver: The waiver by any party of a breach or default of any provision of this License Agreement by the other party shall not constitute a waiver by such party of any succeeding breach of the same or other provision; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder, operate as a waiver of any such right, power or privilege by such party.

D. Governing Law: This License Agreement shall be governed by, subject to and construed under the laws of the State of New York.

E. Unenforceability: In the event that any term, clause or provision of this License Agreement shall be construed to be or adjudged invalid, void or unenforceable, such term, clause or provision shall be construed as severed from this License Agreement, and the remaining terms, clauses and provisions shall remain in effect.

F. Association: The parties, by this License Agreement, do not intend to create a partnership, principal/agent, master/servant, franchisor/franchisee, or joint venture relationship, and nothing in this License Agreement shall be construed as creating such a relationship between the parties. The parties agree that this License Agreement does not create any franchise relationship between them that is subject to the provisions of the Petroleum Marketing Practices Act or any similar state or local government law.

G. Counterparts: This License Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be executed as of the day and year first above written.


	GETTY PROPERTIES CORP. (f/k/a Getty Realty Corp.)

	By:	/s/ John Fitteron

	Name: John Fitteron
	Title: Senior Vice President

	GETTY PETROLEUM MARKETING INC.

	By:	/s/ Leo Liebowitz

	Name: Leo Liebowitz
	Title: Chairman and Chief Executive Officer

19

EXHIBIT 10.13 TRADEMARK LICENSE AGREEMENT, DATED NOVEMBER 2, 2000, BETWEEN GETTY™ CORP. AND GETTY PETROLEUM MARKETING INC.

TRADEMARK LICENSE AGREEMENT

THIS TRADEMARK LICENSE AGREEMENT (together with all Schedules attached hereto and made a part hereof, this “License Agreement”), effective as of the Restatement Effective Date (as defined in the Master Lease (as hereinafter defined)), is entered into by and between: Getty TM Corp. (hereinafter called “TM”), a corporation organized and existing under the laws of the State of Maryland, located at 125 Jericho Turnpike, Jericho, New York 11753; and Getty Petroleum Marketing Inc. (together with any successors and permitted assignees, hereinafter called “MARKETING”), a corporation organized and existing under the laws of the State of Maryland, located at 125 Jericho Turnpike, Jericho, New York 11753.

WHEREAS, TM is the owner of certain trademarks, service marks and trade names for use in, among other businesses, the motor fuels marketing business, as conducted in certain areas of the United States (defined below as the Licensed Territory);

WHEREAS, the corporate parent of TM, Getty Properties Corp. (f/k/a Getty Realty Corp.) (hereinafter called “REALTY”), a corporation organized and existing under the laws of the State of Delaware, has leased and subleased various motor fuels outlet properties to MARKETING under certain net lease agreements, all of which net lease agreements have been incorporated, consolidated, amended and restated as of the date hereof pursuant to that certain Consolidated, Amended and Restated Master Lease between REALTY, as landlord, and MARKETING, as tenant (as so incorporated, consolidated, amended and restated, the “Master Lease”);

WHEREAS, TM seeks to license those trademarks, service marks and trade names to MARKETING for use in its marketing business in the Licensed Territory as defined below;

WHEREAS, MARKETING seeks to license those trademarks, service marks and trade names from TM for use in its marketing business in the Licensed Territory as defined below;

NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, the parties agree as follows:


	1.	DEFINITIONS

B. “Branded Gasoline” means gasoline that is sold through a Branded Outlet and is identified using any of the Licensed Marks.

D. “Licensed Marks” means the trademarks, service marks or trade names listed on Schedule A attached hereto and as subsequently included pursuant to Paragraph 6D hereof.

E. “Licensed Territory” means all of the states, territories and possessions of the United States with the exception of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia and the District of Columbia.

G. “Material Monetary Default” means the failure to pay to TM royalty fees when due and payable pursuant to Paragraph 2C herein and unpaid for a period exceeding ten (10) days after receipt of written notice unless such payments are then being contested by MARKETING in good faith.

H. “Material Non-Monetary Default” means a material breach or breaches of MARKETING’s obligations under this License Agreement that reasonably would be expected to result in a significant and lasting diminution of the value of the Licensed Marks in the Marketing Business.

I. “Royalty-Paying License Territory” shall mean all of the Licensed Territory with the exception of West Virginia.


	2.	GRANT OF LICENSE; ROYALTY FEES

A. Subject to the terms and conditions set out herein, TM grants to MARKETING a non-exclusive, royalty-bearing license to use the Licensed Marks in the Licensed Territory in connection with its Marketing Business. The license to use the Licensed Marks in West Virginia shall be royalty free. TM shall not grant any rights to use any of the Licensed Marks in the Licensed Territory to any entity to be used in connection with (i) the purchase, storage, distribution, marketing, or sale of gasoline, diesel fuel and other related products or (ii) the operation of convenience stores without MARKETING’s prior written consent, which consent may be withheld if MARKETING reasonably believes that the entity to whom TM wishes to grant such license would materially tarnish the image or cause a material adverse impact on the value of the Licensed Marks. Any license that TM hereinafter grants to

any person other than MARKETING to use any of the Licensed Marks in the Marketing Business in the Licensed Territory shall prohibit the opening and operation of retail gasoline outlets bearing any of the Licensed Marks within a one-quarter-mile radius of any Branded Outlet.

B. The royalty rate for the use of the Licensed Marks in the Royalty-Paying Licensed Territory shall be as follows:

if in a particular calendar year the amount of Branded Gasoline sold in the Licensed Territory is between 0 and 199,999,999 gallons of Branded Gasoline, inclusive, the royalty rate shall be $.0035 per gallon of Branded Gasoline sold (i.e. $35.00 for every ten thousand gallons of Branded Gasoline sold) for that calendar year;

if in a particular calendar year the amount of Branded Gasoline sold in the Licensed Territory is between 200,000,000 and 399,999,999 gallons of Branded Gasoline, inclusive, the royalty rate shall be $.0032 per gallon of Branded Gasoline sold (i.e. $32.00 for every ten thousand gallons of Branded Gasoline sold) for that calendar year;

if in a particular calendar year the amount of Branded Gasoline sold in the Licensed Territory is between 400,000,000 and 599,999,999 gallons of Branded Gasoline, inclusive, the royalty rate shall be $.0029 per gallon of Branded Gasoline sold (i.e. $29.00 for every ten thousand gallons of Branded Gasoline sold) for that calendar year;

if in a particular calendar year the amount of Branded Gasoline sold in the Licensed Territory is between 600,000,000 and 799,999,999 gallons of Branded Gasoline, inclusive, the royalty rate shall be $.0026 per gallon of Branded Gasoline sold (i.e. $26.00 for every ten thousand gallons of Branded Gasoline sold) for that calendar year;

if in a particular calendar year the amount of Branded Gasoline sold in the Licensed Territory is between 800,000,000 and 999,999,999 gallons of Branded Gasoline, inclusive, the royalty rate shall be $.0023 per gallon of Branded Gasoline sold (i.e. $23.00 for every ten thousand gallons of Branded Gasoline sold) for that calendar year; and

if in a particular calendar year the amount of Branded Gasoline sold in the Licensed Territory is 1,000,000,000 gallons of Branded Gasoline or more, the royalty rate shall be $.0020 per gallon of Branded Gasoline sold (i.e. $20.00 for every ten thousand gallons of Branded Gasoline sold) for that calendar year.

C. Within thirty days of the end of each month, MARKETING shall make a monthly royalty payment to TM, equal to the number of gallons of Branded Gasoline sold that month in the Licensed Territory, multiplied by the applicable royalty rate as set forth in Paragraph 2B. In the event that, during any such month, the amount of Branded Gasoline sold by MARKETING in the Licensed Territory reaches a gallonage at which the royalty rate decreases pursuant to Paragraph 2B (a “Gallonage Threshold Event”), then MARKETING shall be entitled to receive a credit against such month’s royalty payment equal to the product of (a) the amount of Branded Gasoline sold, in gallons, in the preceding months of such calendar year, times (b) the difference between the royalty rate used to compute the royalty fee for the preceding months of such calendar year and the royalty rate to be used to compute such fee for the calendar month in which the Gallonage Threshold Event occurs. If the amount of such credit is greater than the royalty payment due in the month in which the Gallonage Threshold Event occurs, then such credit shall be applied to the royalty payment for each subsequent month (whether or not such subsequent month occurs in same calendar year) until exhausted. Each time a Gallonage Threshold Event occurs in a given calendar year, the procedure set forth above shall

govern with respect to adjustment of the royalty fees due for such calendar year. In the event that this License Agreement expires before any such credit has been exhausted, then, provided that such expiration did not result from any of the events described in Paragraph 13 hereof, TM shall pay MARKETING a refund within thirty days of the expiration of this License Agreement.

D. MARKETING and any Affiliate may use and continue to use the name “Getty” in the name under which it incorporates, organizes or conducts its business and its subsidiaries’, provided that there is no likelihood of confusion between MARKETING’s and its subsidiaries’ incorporated name and Getty Properties Corp. or Getty Realty Corp., and that the use of the name “Getty” in MARKETING’s or its subsidiaries’ incorporated name does not exceed REALTY’s rights to the name “Getty”. The parties agree that the use by MARKETING and its subsidiary of the incorporated names Getty Petroleum Marketing Inc. and Getty Terminals Corp. does not create any likelihood of confusion. MARKETING or any Affiliate may use the name “Getty” in combination with the name “Lukoil”, or any variation thereof, and any other name under which OAO LUKOIL operates, or subsequently operates, all or part of its operations, in the names under which such entities incorporate, organize or conduct their respective businesses, provided that such use of the name “Getty” does not exceed REALTY’s rights to the name “Getty” and does not create a likelihood of confusion with Getty Properties Corp. or Getty Realty Corp. The act of combining the name “Lukoil”, or any stylistic variation thereof, or any other name with the name “Getty” or using such combined name in commerce shall give no rights to TM to use the names combined with “Getty”. Upon the request of MARKETING, TM shall execute and deliver to MARKETING any consents that may be required from time to time by the secretary of state or similar office of a state, commonwealth or other jurisdiction in order for MARKETING or any Affiliate to use the name “Getty” in the

name under which it incorporates, organizes or conducts its business. MARKETING accepts the license subject to the terms and conditions of this License Agreement.

E. Subject to the consent of TM, which consent shall not be unreasonably withheld or delayed, MARKETING may sublicense the Licensed Marks to retailers or wholesalers of petroleum and other related products and operators of convenience stores, including but not limited to service station retailers, jobbers and distributors, but only subject to the terms and conditions of this License Agreement, all of which shall be equally binding on the sublicensees. In determining the reasonableness of a refusal to consent to a sublicense, the parties shall be guided by the following considerations: (i) the parties shall not knowingly take any action which would materially tarnish the image or cause a material adverse impact on the value of the Licensed Marks and (ii) the parties shall not permit the indiscriminate proliferation of sublicensees which would reasonably be expected to cause the Licensed Marks to lose significance as a source of origin. In connection with any sublicense granted hereunder, the sublicensee shall be required to agree in writing to be bound by and comply all terms and conditions of this License Agreement, except the obligation to pay royalty fees hereunder which shall remain the obligation of MARKETING.

TM hereby consents to the sublicensing of the Licensed Marks pursuant to this Paragraph 2E and authorizes MARKETING to make amendments and revisions in those sublicenses that are not of a material nature.

F. Nothing in this License Agreement shall be construed as restricting MARKETING’S ability to (i) purchase, store, distribute, market, or sell gasoline, diesel fuel and other related products at wholesale and through terminals and a retail service station network and

(ii) to operate convenience stores in the Licensed Territory, in each case using any trademark, trade name or service mark other than the Licensed Marks.


	3.	OWNERSHIP OF MARKS

MARKETING acknowledges TM’s ownership of the Licensed Marks in the Licensed Territory. MARKETING agrees that it will do nothing inconsistent with such ownership and that all use of the Licensed Marks by MARKETING shall inure to the benefit of, and be on behalf of, TM. MARKETING agrees that nothing in this License Agreement shall give MARKETING any right, title or interest in the Licensed Marks other than the right to use the Licensed Marks in accordance with this License Agreement. MARKETING agrees that it will not attack the title of TM to the Licensed Marks or attack the validity of this License Agreement.


	4.	QUALITY STANDARDS

MARKETING agrees that the nature and quality of all services rendered by MARKETING in connection with the Licensed Marks, all goods sold by MARKETING under the Licensed Marks, and all related advertising, promotional and other related uses of the Licensed Marks by MARKETING shall conform to reasonable standards set by and be under the control of TM. MARKETING agrees that the quality of all such services, goods, and advertising and promotional materials associated with the Licensed Marks shall be of the same quality as previously associated with the Licensed Marks. MARKETING further agrees that the quality of all such services, goods, and advertising, promotional and other related uses of the Licensed Marks shall conform with the standards, specifications, and instructions as established by TM or such subsequent standards, specifications, or instructions reasonably comparable thereto promulgated by MARKETING subject to the approval of TM, such approval not to be unreasonably withheld or delayed. MARKETING shall be deemed to have complied with the

quality standards in existence from time to time under this License Agreement so long as MARKETING maintains the physical condition of, and the services provided through, Branded Outlets not materially worse than the physical condition and level of service generally characteristic on the date hereof of retail service stations of MARKETING and its sublicensees that use the Licensed Marks. Except as may be required by law or as reasonably necessary to protect the Licensed Marks, TM shall not set quality standards higher than those generally characteristic on the date hereof of services rendered and goods sold through retail service stations of MARKETING and its sublicensees that use the Licensed Marks. TM shall not set quality standards for other licensees of the Licensed Marks that are lower than those set for MARKETING from time to time during the term of this License Agreement. Without limiting the generality of the foregoing, MARKETING agrees to comply with the standards, specifications, and instructions set out in Schedule B hereto, as may be modified from time to time in accordance with this Paragraph 4. If MARKETING intends to use the Licensed Marks on a new product within the ambit of a particular registration it shall request approval for such new product from TM at least thirty (30) days prior to initiating such new product use, and such approval shall not be unreasonably withheld by TM. TM shall provide MARKETING with notice of approval or non-approval, as the case may be, within thirty (30) days of the receipt of the notice with respect to MARKETING’s intended new product; provided that TM shall be deemed to have given such approval if TM fails to deliver to MARKETING any notice within such 30-day period. If TM rejects any proposal to use any of the Licensed Marks with a new product, then TM shall provide a reasonably detailed explanation to MARKETING as to why TM found the proposed use of the Licensed Marks unacceptable. MARKETING may resubmit

to TM, and TM shall give reasonable consideration to, an amended proposal for such new product.


	5.	QUALITY MAINTENANCE

MARKETING agrees to cooperate with TM in facilitating TM’s control of the nature and quality of goods, services and related uses associated with the Licensed Marks, to permit reasonable inspection of MARKETING’s operations once in any four-month period during normal business hours and upon ten day’s prior written notice, and to supply TM with specimens of all uses of the Licensed Marks upon request. TM shall have no right to inspect the books and records of MARKETING other than those books and records reasonably related to the use of the Licensed Marks by MARKETING in accordance with the terms of this License Agreement, and TM shall maintain all such information in the strictest of confidence. MARKETING shall comply with all applicable laws and regulations, including, but not limited to laws and regulations applicable to the storage and sale of gasoline at Branded Outlets and will obtain all appropriate government approvals pertaining to the sale, distribution and advertising of goods and services covered by this License Agreement. TM shall have the right to enter and inspect up to fifteen Branded Outlets in any three-month period, which number, for purposes of clarification, includes Branded Outlets operated by sublicensees of the Licensed Marks. TM shall have the right to receive from MARKETING, upon request and without charge, a reasonable number of samples of products sold by MARKETING as well as labels, promotional materials, advertising materials, sales materials and related materials using any of the Licensed Marks.


	6.	FORM OF USE

A. MARKETING agrees to use the Licensed Marks only in the form, manner and trade dress and with appropriate legends as reasonably prescribed from time to time by TM,

and not to use any other trademark, trade name, trade dress, or service mark in combination with any of the Licensed Marks without prior written approval of TM. TM hereby approves of the use of the Licensed Marks in combination with other trademarks, trade names, trade dress, or service marks set out in Schedule C.

B. MARKETING shall submit to TM for prior approval all new or revised labels that are a material departure from those presently used at least sixty (60) days prior to initiating use of a revised or new label. TM’s approval shall not be unreasonably withheld or delayed. TM shall provide MARKETING with notice of approval or non-approval, as the case may be, within thirty (30) days of the receipt of the notice with respect to MARKETING’s intended new or revised label; provided that TM shall be deemed to have given such approval if TM fails to deliver to MARKETING any notice within such 30-day period. If TM rejects any proposal to use any new or revised labels, then TM shall provide a reasonably detailed explanation to MARKETING as to why TM found the proposed labels unacceptable, and MARKETING may resubmit to TM, and TM shall give reasonable consideration to, any amended proposal for such new or revised label.

C. If during the term of this Agreement TM owns or obtains the right to use any trademark, service mark or trade name that incorporates the name “Getty” and is associated with the Marketing Business, TM promptly shall give written notice of such new trademark, service mark or trade name to MARKETING, and upon the written request of MARKETING, such trademark, service mark or trade name shall become a Licensed Mark. The royalty rate shall not be increased as a result of the addition of such trademark, service mark or trade name as a Licensed Mark.


	7.	TRADEMARK NOTICES

MARKETING will utilize on its products bearing the Licensed Marks, packaging and advertising, whatever lawful notice is reasonably requested in writing by TM in order to protect the Licensed Marks and properly designate TM’s legal ownership thereof. Without limiting the foregoing, MARKETING agrees to utilize, where commercially practicable, a notice sufficient to indicate that each of the utilized Licensed Marks is a registered trademark of TM. If TM does not request a particular trademark notice, MARKETING shall utilize such notice as in the opinion of its counsel is appropriate in order to protect the Licensed Marks and properly designate TM’s legal ownership thereof and the fact of registration thereof. However, MARKETING shall advise TM of each such intended notice, and make any changes thereto reasonably requested by TM.


	8.	APPROVAL AND PROTECTION OF THE LICENSED MARKS


	9.	CONFLICTING TRADEMARKS

MARKETING will not at any time adopt or use, without TM’s prior written consent, any word, mark, or designation which is similar or likely to be confused with any of the Licensed Marks.


	10.	FUTURE DOCUMENTS, RECORDING AND TRADEMARK MAINTENANCE

A. The parties agree to cooperate in the execution and delivery, from time to time, throughout the term of this License Agreement, of any documents that may be reasonably required or desirable to effectuate and carry out the purpose and intent of this License Agreement. Such documents shall include instruments required to file, renew, protect, perfect and/or maintain the Licensed Marks and TM’s ownership therein, or to provide for the granting of any license hereunder. Without limiting the generality of the foregoing, TM shall enter MARKETING or its local designee or cause MARKETING or its local designee to be entered as a registered user of the Licensed Marks wherever necessary or desirable, and MARKETING and/or its local designee shall, upon written request, execute such registered user agreements.

B. Except as provided in Paragraph 11B below with respect to infringement of the Licensed Marks by third parties, TM shall take such action as is reasonably required or desirable to obtain and maintain appropriate protection of the Licensed Marks applicable to MARKETING’s business. Except as provided in Paragraph 11B below, with respect to infringement of the Licensed Marks by third parties, TM shall bear the full cost of all trademark filings, renewals, registered user entries and actions to protect, perfect or maintain the Licensed Marks applicable to the Marketing Business, including the attorney’s and local agent’s fees, taxes, government filing and other fees.


	11.	INFRINGEMENT AND OTHER ACTIONS

A. The parties shall promptly notify each other of any claim that is asserted, and of any action or proceeding that is threatened or commenced, in which a third party (i) challenges MARKETING’s right to use any of the Licensed Marks, (ii) alleges that any Licensed Mark infringes the trademark or trade name rights of such third party, or (iii) in which the revocation, cancellation or declaration of invalidity of any of the Licensed Marks is sought. TM and MARKETING shall consult with respect to each such claim, action, or proceeding, the assertion of counterclaims thereto and the settlement thereof and shall jointly defend, in the name of TM and/or in the name of MARKETING, each such action or proceeding that is commenced. If an action or proceeding brought by a third party concerns the registrations and/or products of both TM and MARKETING, both TM and MARKETING shall be responsible for their pro rata share of legal expenses incurred in defending such action or proceeding, said pro rata share to be determined by the proportion of products and/or registrations at issue in the third party action or proceeding. If there is a disagreement as to the appropriate pro rata share of legal expenses to be borne by each party, the matter shall be submitted to arbitration in accordance with Paragraph 15 below. If the claim or action concerns only products (other than claims pertaining to the Licensed Marks) and/or registrations of MARKETING, MARKETING shall bear all legal expenses incurred in defending such actions and proceedings and bear all damages and costs, if any, recovered by the third party.

B. TM and MARKETING will each undertake commercially reasonable efforts to learn of any unauthorized uses of the Licensed Marks. Promptly upon receiving notice or knowledge thereof, the parties shall notify each other of any infringement or other violation by a third party of any of the Licensed Marks. TM and MARKETING shall consult with respect to any such infringement, and any action or proceeding, including opposition and cancellation

actions, that may be brought against such infringement. TM shall exercise its discretion with respect to taking appropriate action including the bringing of actions at TM’s expense in the name of TM and/or MARKETING, but shall not be obligated to take any action or institute any proceedings. If such action or proceeding is commenced by TM, it shall promptly notify MARKETING and MARKETING shall cooperate, including the defense of counterclaims, and TM shall bear the expenses of MARKETING except for fees charged by any attorneys retained solely by MARKETING in connection with such cooperation. MARKETING shall be given an opportunity to participate with counsel of its choice bearing its own legal and other costs.

In the event that TM determines not to commence such action or proceeding at its expense, it shall promptly notify MARKETING. MARKETING may then, at its expense, initiate such action or proceedings in its capacity as a licensee of such Licensed Marks, provided however, that MARKETING must obtain the prior written approval of TM regarding commencement of such action, such consent not to be unreasonably withheld. The foregoing notwithstanding, in the event of any unauthorized use of the Licensed Marks by one of MARKETING’S sublicensees, MARKETING shall undertake efforts to cause the unauthorized use to stop. In the event those efforts are unsuccessful, MARKETING shall, at its expense, initiate such action or proceedings in its capacity as a licensee of such Licensed Marks with respect to such unauthorized use. TM shall cooperate with MARKETING in any such proceeding or action, including the defense of any counterclaims, and MARKETING shall bear the expenses of TM, except for fees charged by any attorneys retained solely by TM in connection with such cooperation. TM may, if not a party, join in, with counsel of its own choice, bearing its own legal and other costs. The party bringing any action or proceeding under this sub-paragraph (B) shall keep the other party informed of the proceedings and give the other

party an opportunity to participate in any settlements, but the final decision whether to settle the action or proceeding shall be made by the party bringing the action or proceeding, subject to the approval of TM (if not a party), such approval not to be unreasonably withheld. If within ten (10) business days or such shorter time period as shall be reasonably practicable under the circumstances TM does not approve a proposed settlement recommended by MARKETING in good faith, TM shall be deemed to have taken over responsibility for the action or proceeding, including subsequent legal fees, awards against TM or MARKETING and expenses relating thereto. No settlement by either party shall bind the other to make any payment or suffer any loss of existing or future rights without such other party’s consent, which shall not be unreasonably withheld. Any recovery in such action or proceeding shall be applied first to reimburse the party or parties for its or their legal expenses in maintaining such action or proceeding. The excess shall belong to the party maintaining the action or proceeding at the time such recovery is awarded. If the action is brought jointly and the recovery is not sufficient to reimburse TM and MARKETING for their legal expenses in such action, the unreimbursed portion of such legal expenses shall be borne equally by each party.


	12.	TERM


	13.	TERMINATION AND BREACH

This License Agreement shall be terminated upon (a) the voluntary filing by MARKETING of a bankruptcy petition or an involuntary bankruptcy proceeding having been

commenced and not stayed or terminated within 120 days of such commencement or (b) the termination of the Master Lease in accordance with its terms. TM shall have the right to terminate this License Agreement upon (a) a Material Monetary Default or (b) the determination that a Material Non-Monetary Default has occurred, as provided in this Paragraph 13, and such Material Non-Monetary Default has not been cured by MARKETING within one year of such determination or within thirty (30) days of such determination if the breach giving rise to such Material Non-Monetary Default constitutes commingling as described in Section 1 of Schedule B attached hereto. TM’s only remedy with respect to breaches by MARKETING other than Material Monetary Defaults and Material Non-Monetary Defaults shall be to seek damages or injunctive relief. In the event of any breach or threatened breach of this License Agreement or a claimed Material Non-Monetary Default, notice shall be given and the parties shall promptly consult in good faith to cure such breach, with the party at fault being given an adequate period of time to remedy the matter. If such breach or claimed Material Non-Monetary Default is not cured within sixty (60) days of the notice, the matter may be submitted to arbitration in accordance with Paragraph 15 below, which may include a determination whether a material breach or Material Non-Monetary Default, as the case may be, has occurred and/or been cured. In the event the arbitrator determines that a material breach has occurred, the arbitrator shall not be authorized to terminate this License Agreement but shall be authorized to issue any other order or award any other relief deemed appropriate, including, without limitation, injunctive relief.


	14.	EFFECT OF TERMINATION

appointed agent to apply to the appropriate authorities to cancel any recording of this License Agreement from all government records; (c) to use reasonable best efforts to destroy or cause the destruction of all printed materials and signs bearing any of the Licensed Marks; (d) that all rights in the Licensed Marks and the good will connected therewith shall remain the property of TM; (e) to cause all sublicenses to terminate and (f) to use reasonable best efforts to cause all sublicensees to immediately discontinue all use of the Licensed Marks and any term confusingly similar thereto, and to delete the same from their respective business names, if applicable. Notwithstanding the foregoing, MARKETING and its sublicensees may continue to sell all goods bearing any of the Licensed Marks on packaging in inventory at the time this License Agreement is terminated for a period of 30 days, and MARKETING shall continue to pay to TM any royalty fees that become due and payable pursuant to Paragraph 2B herein.


	15.	ARBITRATION

Any controversy or claim arising out of, or relating to this License Agreement or its interpretation, performance or nonperformance or any breach thereof, which the parties are unable to resolve between themselves, shall first be submitted to a single arbitrator who shall be knowledgeable in marketing and trademark matters. The arbitrator shall be mutually appointed by the parties, and shall not be bound by rules of the American Arbitration Association, but shall adopt such procedures as shall appear appropriate to expedite decision making, in order that disputes may be resolved within commercially reasonable time periods. If the parties cannot agree on the selection of the arbitrator, the arbitrator shall be selected by The American Arbitration Association. Each party shall bear its own costs in any such proceeding. The decision of the arbitrator shall be final and binding upon the parties and may be enforced in any court of competent jurisdiction.


	16.	REPRESENTATIONS AND WARRANTIES

TM hereby represents and warrants to Marketing that: (a) TM has title to the Licensed Marks in the Licensed Territory free and clear of any liens and encumbrances; (b) to TM’s knowledge, the Licensed Marks do not infringe any trademark or other proprietary or intellectual property right of any third party; (c) TM has the right, power and authority to enter into this License Agreement and to perform all of TM’s obligations hereunder; (d) TM has not granted to any third party a license for the Licensed Property that would conflict with the rights granted to MARKETING hereunder; and (e) to TM’s knowledge the Licensed Marks are the only trademarks, service marks or trade names that incorporate the name “Getty” in the Marketing Business.


	17.	GENERAL PROVISIONS

A. Assignability: This license may be assigned by either party to the successor in interest or assignee of substantially all of its business or assets, or the surviving party of any merger or consolidation to which it is a party provided that the assignee of any assignment assumes all the assignor’s obligations hereunder. Without the prior written consent of TM, MARKETING shall be permitted to assign this License Agreement to any majority-owned subsidiary of MARKETING or a wholly-owned subsidiary of Lukoil Americas Corporation, provided that the Master Lease is also assigned to any such subsidiary. Apart from any assignment permissible under the preceding sentences of this Paragraph 16A, MARKETING may not otherwise, assign the license granted herein or the obligations undertaken herein without the prior written consent of TM, which consent shall not be unreasonably withheld or delayed.

addressed to the party at its address first above written, to the attention of its General Counsel, or to any other address that either party may subsequently designate, by notice in accordance with this paragraph. Notices and other communications hereunder shall be deemed effective one (1) day after dispatch, if personally delivered or telecopied, and three (3) days after dispatch, if posted, subject to proof of delivery.

D. Governing Law: This License Agreement shall be governed by, subject to and construed under the laws of the State of New York.

IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be executed as of the day and year first above written.


	GETTY TM CORP.

	By:	/s/ John Fitteron

	Name: John Fitteron
	Title: Senior Vice President

	GETTY PETROLEUM MARKETING INC.

	By:	/s/ Leo Liebowitz

	Name: Leo Liebowitz
	Title: Chairman and Chief Executive Officer

EXHIBIT 10.15 FORM OF RESTRICTED STOCK UNIT GRANT AWARD UNDER THE 2004 GETTY REALTY CORP. OMNIBUS INCENTIVE COMPENSATION PLAN, AS AMENDED.

RESTRICTED STOCK UNIT AGREEMENT

THIS RESTRICTED STOCK UNIT AGREEMENT (the “ Agreement ”), dated as of _________________, 20__ (the “ Grant Date ”), between Getty Realty Corp. (the “ Company ”), and ___________________ (“ Holder ”).

RECITALS

A. The Company has adopted the Getty Realty Corp. 2004 Omnibus Incentive Compensation Plan (the “ Plan ”) (the terms of which are hereby incorporated by reference and made part of this Agreement).

B. The Committee appointed to administer the Plan has determined that it would be to the advantage and best interest of the Company and its shareholders to award Restricted Stock Units to Holder as an inducement for Holder to remain in the service of the Company and as an incentive for increased efforts during such service, and has advised the Company thereof and instructed the undersigned officer(s) to award such Restricted Stock Units to Holder, subject to the restrictions and conditions contained in this Agreement.

AGREEMENTS

In consideration of services to be rendered to the Company and the other mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:

1. Definitions . As used in this Agreement, the following terms shall have the following definitions ascribed to them:

(a) “ Cause ” shall mean a determination by the Committee that the Holder’s service was terminated due to: (i) the Holder’s conviction of any crime (whether or not involving the Company) constituting a felony in the applicable jurisdiction; (ii) conduct of the Holder related to the Holder’s service for which either criminal or civil penalties may be sought against the Holder and/or the Company; (iii) material violation of the Company’s Business Conduct Guidelines, including, but not limited to those relating to sexual harassment, the disclosure or misuse of confidential information, or those set forth in other Company manuals or statements of policy; or (iv) serious neglect or misconduct in the performance of the Holder’s duties for the Company or willful or repeated failure or refusal to perform such duties.

(b) “ Code ” shall mean the Internal Revenue Code of 1986, as amended.

(c) “ Committee ” shall mean the Compensation Committee of the Company’s Board of Directors, or another committee or subcommittee of the Board.

(d) “ Disability ” shall mean a disability described in Section 22(e)(3) of the Code. The existence of a Disability shall be determined by the Committee in its sole and absolute discretion.

(e) “ Fair Market Value ” of a share of Common Stock as of a given date shall be (i) the closing price of a share of Common Stock on the principal exchange on which shares of Common Stock are then trading, if any (or as reported on any composite index which includes such principal exchange), on the trading day previous to such date, or if shares were not traded on the trading day previous to such date, then on the next preceding date on which a trade occurred, or (ii) if Common Stock is not traded on an exchange but is quoted on Nasdaq or a successor quotation system, the mean between the closing representative bid and asked prices for the Common Stock on the trading day previous to such date as reported by Nasdaq or such successor quotation system, or (iii) if Common Stock is not publicly traded on an exchange and not quoted on Nasdaq or a successor quotation system, the Fair Market Value of a share of Common Stock as established by the Administrator acting in good faith.

(f) “ Termination of Service ” shall mean, (i) if the Holder is an employee of the Company or any Subsidiary on the Grant Date, the time when the employee-employer relationship between the Holder and the Company or any Subsidiary is terminated for any reason, with or without Cause, including, but not by way of limitation, a termination by resignation, discharge, death, Disability or Retirement; but excluding (a) terminations where there is a simultaneous reemployment or continuing employment of the Holder by the Company or any Subsidiary, (b) at the discretion of the Committee, terminations which result in a temporary severance of the employee-employer relationship, and (c) at the discretion of the Committee, terminations which are followed by the simultaneous establishment of a consulting relationship by the Company or a Subsidiary with the Holder, and (ii) if the Holder is a non-employee director of the Company on the Grant Date, the time when the Holder ceases to be a member of the Board of Directors of the Company for any reason; provided, however , that for purposes of settlement of vested Units, Termination of Service shall have the same meaning as “separation from service” under Section 409A of the Code.

2. Grant of Restricted Stock Units . Subject to the terms and conditions of the Plan and this Agreement, the Company hereby grants __________ Restricted Stock Units (“ Units ”) to Holder, to be credited to a separate account maintained for Holder on the books of the Company (the “ Account ”). On any date, the value of each Unit shall equal the Fair Market Value of one share of the common stock of the Company, par value $0.01 per share (“ Common Stock ”).

3. Vesting .(a) Subject to the accelerated vesting provisions set forth in Section 3(b) or Section 3(c) below, the Units shall vest, on a cumulative basis, with respect to 20% of the Units on the first anniversary of the Grant Date, and as to an additional 20% on each succeeding anniversary of the Grant Date (each such date, a “ Vesting Date ”), so as to be 100% vested on the fifth anniversary thereof, provided that Holder has not incurred a Termination of Service prior to the respective Vesting Date.


	(b) Notwithstanding the foregoing, if the Holder is an employee of the Company or any Subsidiary on the Grant Date:


	1.	The Units shall vest as to 100% of the then unvested Units in the Holder’s Account upon the Holder’s Termination of Service by the Company without Cause;


	2.	The Units shall vest as to 100% of the then unvested Units in the Holder’s Account upon the Holder’s death prior to Termination of Service; and

	3.	If the Holder incurs a Termination of Service for any reason other than by the Company without Cause or death, all Units which have not vested at the time of such termination shall be automatically forfeited.


	(c) Notwithstanding the foregoing, if the Holder is a non-employee director of the Company on the Grant Date:


	1.	The Units shall vest as to 100% of the then unvested Units in the Holder’s Account upon the Holder’s Termination of Service for any reason other than the Holder voluntarily electing to resign from the Board of Directors, voluntarily electing not to stand for re-election to the Board of Directors or being involuntarily removed from the Board of Directors (excluding, for this purpose, a failure to be re-elected by the stockholders of the Company);

	2.	The Units shall vest as to 100% of the then unvested Units in the Holder’s Account upon the Holder’s death prior to Termination of Service; and

	3.	If the Holder voluntarily resigns from the Board of Directors, voluntarily elects not to stand for re-election to the Board of Directors or is involuntarily removed from the Board of Directors (excluding, for this purpose, a failure to be re-elected by the stockholders of the Company), all Units which have not vested as of the date that the Holder incurs a Termination of Service shall be automatically forfeited upon the Termination of Service.

4. Settlement . Each vested Unit credited to the Holder’s Account will be settled by the Company (and, upon such settlement, cease to be credited to the Holder’s Account) by either (a) the issuance to the Holder of one share of Common Stock or (b) a payment to the Holder of an amount equal to the Fair Market Value of a share of Common Stock on the Settlement Date (hereinafter defined), such election to be made by the Committee in its sole and absolute discretion. Settlement of vested Units shall occur on the date that they become vested, or as soon as administratively practicable after such date, but in all events within 30 days after the date they become vested.

5. Dividend Equivalent . If on any date the Company pays any dividend on the Common Stock (the “ Payment Date ”), then Holder shall receive, within 14 days after the Payment Date, a cash payment equal to the product of (i) the number of Units in the Holder’s Account as of the Payment Date, multiplied by (ii) the per share cash amount of such dividend (or, in the case of a dividend payable in Common Stock or in property other than cash, the per share equivalent cash value of such dividend, as determined in good faith by the Committee).

6. Restrictions . The Units granted hereunder may not be sold, pledged or otherwise transferred (other than by will or the laws of descent and distribution) and may not be subject to lien, garnishment, attachment or other legal process. The Holder acknowledges and agrees that, with respect to each Unit credited to his Account, Holder has no voting rights with respect to the Company unless and until such Unit is settled in Common Stock.

7. Taxation . When Units become vested, Holder will be obligated to pay all Social Security, Withholding and other (income based) taxes, that are due and payable by reason of the vesting of Units on such date. If Holder shall fail to deliver to the Company the entire amount of such Social Security, Withholding and other (income based) taxes, prior to the payment of Holder’s next regular salary payment, then the Company shall have the right to withhold from such salary payment the unpaid amount of such Social Security, Withholding and other (income based) taxes. Additionally, upon the settlement of vested Units in cash, the Company shall have the right to withhold from such cash settlement an amount sufficient to satisfy all applicable Social Security, Withholding and other (income based) taxes. Upon the settlement of vested Units in Common Stock, the Holder shall be required as a condition of such settlement to pay to the Company by check the amount of any Social Security, Withholding and other (income based) taxes that the Company determines is required to be paid; provided , however , that, with the prior written consent of the Committee, the Holder may elect to satisfy such payment obligation by having the Company withhold from the settlement that number of shares of Common Stock having a Fair Market Value equal to the amount of such payment; and provided further , however, that the number of shares that may be so withheld by the Company shall be limited to that number of shares of Common Stock having an aggregate Fair Market Value on the date of such withholding equal to the aggregate amount of the Holder’s payment obligation on that date (i.e. Holder’s federal and state income and payroll tax liabilities based upon the applicable minimum statutory withholding rates for federal and state income and payroll tax purposes).

8. No Effect on Employment or Other Service . Neither this Agreement nor the Units granted hereunder shall confer upon Holder any right to, or impose upon Holder any obligation of, continued employment or other service with the Company and shall not in any way modify or restrict any right the Company or the Company’s shareholders may otherwise have to terminate such employment or service.

9. Notices . Any notice hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in writing and delivered personally or sent by telecopy, or certified or registered mail, postage prepaid, as follows:


	If to the Company:


	Getty Realty Corp.
	125 Jericho Turnpike, Ste. 103
	Jericho, NY 11753
	Attn: Chairman, Compensation Committee

If to the Holder, to the address set forth on the signature page hereof, or at any other address as any party shall have specified by notice in writing to the other party.

10. Miscellaneous .

(a) All amounts credited to the Holder’s Account under this Agreement shall continue for all purposes to be a part of the general assets of the Company. The Holder’s interest in the Account shall make him only a general, unsecured creditor of the Company.

(b) This Agreement, together with the Plan, constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be modified or amended except by a written agreement signed by the Company and Holder. In the event that any provision of this Agreement shall conflict with any provision of the Plan, the provision of this Agreement shall control, except to the extent that the same would violate applicable law.

(d) The Units shall be subject to adjustment in accordance with Section 8.3 of the Plan. The Administrator shall ensure that any action taken pursuant to Section 8.3(a) through 8.3(f) of the Plan shall comply with the provisions of Section 409A of the Code if and to the extent that the Units constitute deferred compensation within the meaning of Section 409A of the Code.

(e) No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.

(f) Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns and the Holder and his heirs and personal representatives.

(g) If any provision of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any manner affect or render invalid or unenforceable any other severable provision of this Agreement, and this Agreement shall be carried out as if any such invalid or unenforceable provision were not contained herein.

(h) The section headings contained herein are for the purposes of convenience only and are not intended to define or limit the contents of said sections. Except as may otherwise be expressly provided, all references herein to “Section” or “Sections” shall mean the applicable section or sections of this Agreement.

(i) Words in the singular shall be read and construed as though in the plural and words in the plural shall be read and construed as though in the singular in all cases where they would so apply.

(j) This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original.

(k) This Agreement shall be deemed to be a contract under the laws of the State of New York and for all purposes shall be construed and enforced in accordance with the internal laws of said state without regard to the principles of conflicts of law.

(l) 409A Savings Clause. This Agreement and the Units granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. This Agreement and the Units shall be administered, interpreted, and construed in a manner consistent with Section 409A of the Code. Should any provision of this Agreement be found not to comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of the Administrator, and without the consent of the Holder, in such manner as the Administrator determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code. If the Company or Administrator by its operation of the Plan or this Agreement and by no fault of the Holder causes this Agreement to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code, the Company shall reimburse the Holder for interest and additional tax payable with respect to previously deferred compensation as provided in Section 409A(a)(1)(B) of the Code incurred by the Holder including a tax “gross-up” on such reimbursement. Any such reimbursement and tax gross-up payment shall be calculated in good faith by the Administrator and shall be paid by the end of the Holder’s taxable year next following the Holder’s taxable year in which the related taxes are remitted to the taxing authority. Notwithstanding anything in the Plan to the contrary, in no event shall the Administrator exercise its discretion to accelerate the payment or settlement of the Units unless and to the extent that such accelerated payment or settlement is permissible under Treasury Regulation 1.409A-3(j)(4) or any successor provision. Each amount payable under this Agreement as a dividend equivalent payment or as a payment upon vesting of the Units is designated as a separate identified payment for purposes of Section 409A of the Code.

IN WITNESS WHEREOF , the parties have executed this Agreement on the date and year first above written.


	GETTY REALTY CORP.

	By:

		Leo Liebowitz, Chairman and CEO



[Holder]


Residence Address:


Social Security Number:

EXHIBIT 10.19 AMENDMENT TO THE 2004 GETTY REALTY CORP. OMNIBUS INCENTIVE COMPENSATION PLAN DATED DECEMBER 31, 2008.

AMENDMENT TO

GETTY REALTY CORP.

2004 OMNIBUS INCENTIVE COMPENSATION PLAN

WHEREAS , Section 8.2 of the Getty Realty Corp. 2004 Omnibus Incentive Compensation Plan (the “ Plan ”), authorizes the Administrator to amend the Plan at any time and Section 7.1 authorizes the Administrator to amend any Award Agreement under the Plan; and

WHEREAS , the Board of Directors (the “ Board ”) of Getty Realty Corp., a Maryland corporation (the “ Corporation ”), pursuant to the powers reserved to it under Section 7.1 of the Plan to take actions on behalf of the Administrator, now finds it desirable and in the best interest of the Corporation and the holders of outstanding Awards under the Plan to amend the Plan and the outstanding Award Agreements to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and having determined that such amendment may be adopted without approval by the Corporation’s shareholder.

NOW, THEREFORE , the Plan is hereby amended, effective as of January 1, 2009, as follows:

1. The definition of “Termination of Employment” set forth at Section 1.32 of the Plan, is amended to read as follows (revisions are marked):

“1.32. “ Termination of Employment ” shall mean the time when the employee-employer relationship between a Holder and the Company or any Subsidiary is terminated for any reason, with or without cause, including, but not by way of limitation, a termination by resignation, discharge, death, disability (within the meaning of Section 409A(a)(2)(C) of the Code), Retirement or Early Retirement; but excluding (a) terminations where there is a simultaneous reemployment or continuing employment of a Holder by the Company or any Subsidiary, (b) at the discretion of the Administrator, terminations which result in a temporary severance of the employee-employer relationship, and (c) at the discretion of the Administrator, terminations which are followed by the simultaneous establishment of a consulting relationship by the Company or a Subsidiary with the former employee ; provided, however, that for purposes of any payment under or settlement of any Award where such payment or settlement constitutes deferred compensation within the meaning of Section 409A of the Code, Termination of Employment shall have the same meaning as “separation from service” under Section 409A of the Code . The Administrator, in its absolute discretion, shall determine the effect of all matters and questions relating to Termination of Employment, including, but not by way of limitation, the question of whether a Termination of Employment resulted from a

discharge for good cause, and all questions of whether a particular leave of absence constitutes a Termination of Employment.”

2.	The following new Section 8.3(g) is added to the Plan:

“(g) The Administrator shall ensure that any action taken pursuant to Section 8.3(a) through 8.3(f) with respect to any Award that is subject to the provisions of Section 409A of the Code shall comply with the provisions of Section 409A of the Code.”

3.	The following new Section 8.11 is added to the Plan:

“8.11 409A Savings Clause . The Plan and all Awards granted hereunder are intended to comply with, or otherwise be exempt from, Section 409A of the Code. The Plan and all Awards shall be administered, interpreted, and construed in a manner consistent with Section 409A of the Code. Should any provision of the Plan, any Award Agreement, or any other agreement or arrangement contemplated by the Plan be found not to comply with, or otherwise be exempt from, the provisions of Section 409A of the Code, such provision shall be modified and given effect (retroactively if necessary), in the sole discretion of the Administrator, and without the consent of the Holder of the Award, in such manner as the Administrator determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A of the Code. If the Company or Administrator by its operation of the Plan or an Award Agreement and by no fault of the Holder causes an Award to fail to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code to the extent that Section 409A of the Code applies to such Award, the Company shall reimburse the Holder for interest and additional tax payable with respect to previously deferred compensation as provided in Section 409A(a)(1)(B) of the Code incurred by the Holder including a tax “gross-up” on such reimbursement. Any such reimbursement and tax gross-up payment shall be calculated in good faith by the Administrator and shall be paid by the end of the Holder’s taxable year next following the Holder’s taxable year in which the related taxes are remitted to the taxing authority.

Notwithstanding anything in the Plan to the contrary, in no event shall the Administrator exercise its discretion to accelerate the payment or settlement of an Award where such payment or settlement constitutes deferred compensation within the meaning of Section 409A of the Code unless and to the extent that such accelerated payment or settlement is permissible under Treasury Regulation 1.409A-3(j)(4) or any successor provision.”

4. The foregoing amended provisions of the Plan shall be construed and interpreted as amended terms and provisions of all Award Agreements outstanding under the Plan as of January 1, 2009, and shall be binding upon the Corporation as if such terms were incorporated into the Award Agreements.

IN WITNESS WHEREOF , the Corporation has caused this Amendment to be executed by its duly authorized officer this 31st day of December, 2008.


	GETTY REALTY CORP.

	By:	/s/ Leo Liebowitz

		Leo Liebowitz
		Chairman and Chief Executive Officer

EXHIBIT 10.20 AMENDMENT DATED DECEMBER 31, 2008 TO LETTER AGREEMENT DATED JUNE 12, 2001 BY AND BETWEEN GETTY REALTY CORP. AND THOMAS J. STIRNWEIS REGARDING COMPENSATION UPON CHANGE OF CONTROL. (SEE EXHIBIT 10.7).

GETTY REALTY CORP. LETTERHEAD

December 31, 2008

Mr. Thomas J. Stirnweis

Getty Realty Corp.

125 Jericho Turnpike

Jericho, New York 11753

Dear Tom:

This letter (“ Letter Agreement ”) confirms our agreement concerning revisions to your rights under that certain letter agreement between you and Getty Realty Corp., a Maryland corporation (the “Company”), dated June 12, 2001 (the “Change of Control Agreement”), in order to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), which governs nonqualified deferred compensation arrangements. The Company and you agree that the terms of the Change of Control Agreement are hereby amended, effective as of January 1, 2009, in the following regards:

1. The definition of “Guaranteed Benefits” in the second paragraph of the Change of Control Agreement is hereby removed.

2. The third paragraph of the Change of Control Agreement is hereby amended in its entirety to read as follows (revisions are marked):

“The Company reserves the right to terminate your employment at any time with or without Cause (as defined below). Upon the first to occur of (i) termination of your employment by the Company other than for Cause, (ii) termination of your employment by the Company or its successor (but not by you) following a Change, (as defined below), or (iii) termination of your employment by the Company or by you following assignment of materially different (as defined below) employment by the Company (each an “Event”), you shall be entitled to receive severance compensation for a period of 12 months following the date of such Event, in an amount equal to (x) your Guaranteed Salary ~~and Guaranteed Benefits~~ minus (y) any amount of similar compensation you may receive from any other employer during such period. The amount of severance compensation payable pursuant to the immediately preceding sentence shall be paid monthly, in accordance with the Company’s regular payroll schedule for senior executives, with respect to the portion thereof that is attributable to your base salary and the balance of the severance compensation payable pursuant to the immediately preceding sentence shall be paid in a single sum payment, as soon as calculation of the amount payable is administratively practicable, within the first calendar year after the calendar year in which your termination of employment occurs. If after a Change the surviving entity (or one of the surviving entities in the case of a substantial structural change) continues to compensate you but at a total salary less than the Guaranteed Salary ~~and/or provide any benefit which is a part of the Guaranteed Benefits at less than the Guaranteed Benefit level~~ , the Company shall pay, in accordance with the Company’s regular payroll schedule for senior executives, ~~and/or provide to you,~~ the difference between the Guaranteed Salary ~~and Guaranteed Benefits~~ and such lower salary ~~or lesser benefits~~ . If you are terminated without Cause by the successor entity, the Company will continue to be obligated to pay ~~, and provide,~~ the Guaranteed Salary; provided however, that you shall use your best

efforts to obtain other comparable employment and further provided that, if you obtain any other employment, the amounts of Guaranteed Salary shall be reduced by the amounts you receive from the new employer. If your employment is terminated under the circumstances described in this paragraph or your employment continues with the surviving entity after a Change (or with one of the surviving entities in the case of a substantial structural change), and as a result of such terminated or continued employment you suffer a loss or reduction in healthcare benefits, including but not limited to medical and dental benefits, the Company shall pay the full cost of continuation coverage for you and your eligible dependents under a group health plan provided pursuant to the Consolidated Budget Reconciliation Act of 1984 (COBRA) or any similar continuation coverage requirement under New York state law, or in the absence of such group health plan the cost of individual medical coverage obtained by you and/or your eligible dependents, for 12 months .”

3. The definition of “Change” set forth in the fourth paragraph of the Change of Control Agreement is hereby amended to read as follows (revisions are marked):

“The term “Change” means a transaction pursuant to which (i) all or substantially all of the assets of Getty Realty Corp. (“Realty”) are sold or leased to any person, persons or related group of persons other than an affiliate or affiliates of Realty (a “third party ”); provided that such assets have a total gross fair market value (determined without regard to any liabilities associated with such assets) of 70% or more of the total gross fair market value of all of the assets of the Company immediately before such transaction , (ii) ownership of 50% or more of the total voting power of the capital stock ~~the Company outstanding capital stock (or equity equivalents)~~ of Realty is acquired by a third party; or (iii) Realty is merged or consolidated with another entity with the effect that after such merger or consolidation more than 50% ~~or more~~ of the voting equity of the surviving entity is owned by a third party ; or (iv) Realty is substantially structurally changed whereby the business and/or the assets are divided into two or more separate entities and the present Realty controlling shareholder interests are (a) substantially reduced in Realty or (b) materially non-existent in the new entity or entities .”

4. The following paragraphs are added at the end of the Change of Control Agreement to read as follows:

“This Agreement is intended to comply with, or otherwise be exempt from, Code section 409A. The Company will undertake to administer, interpret, and construe the terms of this Agreement in a manner that does not result in the imposition on you of any additional tax, penalty, or interest under Code section 409A. If in implementing this Agreement, and by no fault of you, this Agreement fails to meet the requirements of paragraphs (2), (3) or (4) of Section 409A(a) of the Code, the Company shall reimburse you for interest and additional tax payable with respect to previously deferred compensation under this Agreement as provided in Section 409A(a)(1)(B) of the Code incurred by you including a tax “gross-up” on such reimbursement. Any such reimbursement and tax gross-up payment shall be calculated in good faith by the Company and shall be paid by the end of the taxable year next following your taxable year in which the related taxes are remitted to the taxing authority.

With respect to any reimbursement of healthcare expenses of, or any provision of in-kind benefits to, you or your eligible dependents, as specified under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following conditions: (1) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (2) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

For purposes of Code section 409A, the right to a series of installment payments under the terms of this Agreement are to be treated as a right to a series of separate payments. “Termination of employment,” or words of similar import, as used in this Agreement mean, for purposes of any payments that are payments of deferred compensation subject to Code section 409A, your “separation from service” as defined in Code section 409A. Notwithstanding anything in this Agreement to the contrary, if a payment obligation under the terms of this Agreement arises on account of your separation from service while you are a “specified employee” (as defined under Code section 409A and determined in good faith by the Company’s Compensation Committee), any payment of “deferred compensation” (as defined under Treasury regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury regulation sections 1.409A-1(b)(3) through (b)(12)) that is scheduled to be paid within six months after such separation from service will accrue with interest and will be paid within 15 days after the end of the six-month period beginning on the date of your separation from service or, if earlier, within 15 days after the appointment of the personal representative or executor of your estate following your death. For purposes of the preceding sentence, interest accrues at the prime rate of interest published in the northeast edition of The Wall Street Journal on the date of your separation from service.”

In all other respects, the Change of Control Agreement continues in full force and effect.

Please indicate your acceptance of the changes to the terms of the Change of Control Agreement by signing in the space provided below and returning it to my attention, retaining a copy for your files.

Sincerely,


By:	/s/ Leo Liebowitz

Leo Liebowitz Chief Executive Officer
Accepted and Agreed To:


/s/ Thomas J. Stirnweis	Date: December 31, 2008

Thomas J. Stirnweis

EXHIBIT 21. SUBSIDIARIES OF THE COMPANY


SUBSIDIARY		STATE OF INCORPORATION

AOC Transport, Inc.		Delaware
GettyMart, Inc.		Delaware
Getty AR Leasing, Inc.		Arkansas
Getty CA Leasing, Inc.		California
Getty CT Leasing, Inc.		New York
Getty HI Indemnity, Inc.		Hawaii
Getty HI Leasing, Inc.		Hawaii
Getty IL Leasing, Inc.		Illinois
Getty Kalakaua Leasing, Inc.		Hawaii
Getty Kingston Corporation		New York
Getty MD Leasing, Inc.		Maryland
Getty MO Leasing, Inc.		Missouri
Getty NC Leasing, Inc.		North Carolina
Getty ND Leasing, Inc.		North Dakota
Getty NH Leasing, Inc.		New Hampshire
Getty NY Leasing, Inc.		New York
Getty OH Leasing Inc.		Delaware
Getty Properties Corp.		Delaware
Getty Saugerties Corporation		New York
Getty TM Corp.		Maryland
Getty TX Leasing, Inc.		Texas
Getty VA Leasing, Inc.		New York
Leemilt’s Flatbush Avenue, Inc.		New York
Leemilt’s Petroleum, Inc.		New York
Power Test Realty Company Limited Partnership*		New York
Slattery Group, Inc.		New Jersey


*	ninety-nine percent owned by the Company, representing the limited partner units, and one percent owned by Getty Properties Corp., representing the general partner interest.

EXHIBIT 23. CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (Nos. 333-115672, 333-45249 and 333-45251) and on Form S-3 (No. 333-114730) of Getty Realty Corp. of our reports dated March 2, 2009 relating to the financial statements and the financial statement schedules and the effectiveness of internal control over financial reporting, which appears in Item 8 of this Annual Report on Form 10-K.

/s/ PricewaterhouseCoopers LLP

New York, New York
March 2, 2009

EXHIBIT 31(i).1 RULE 13a-14(a) CERTIFICATION OF CHIEF FINANCIAL OFFICER

I, Thomas J. Stirnweis, certify that:

1. I have reviewed this Annual Report on Form 10-K of Getty Realty Corp.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))for the registrant and have:

a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with accounting principles generally accepted in the United States of America;

c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures as of the end of the period covered by this report based on such evaluation; and

d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s fourth fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: March 2, 2009


By: /s/ THOMAS J. STIRNWEIS

Thomas J. Stirnweis
Vice President, Treasurer and
Chief Financial Officer

EXHIBIT 31(i).2 RULE 13a-14(a) CERTIFICATION OF CHIEF EXECUTIVE OFFICER

I, Leo Liebowitz, certify that:

1. I have reviewed this Annual Report on Form 10-K of Getty Realty Corp.;

a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting, which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: March 2, 2009


By: /s/ LEO LIEBOWITZ

Leo Liebowitz
Chairman and Chief Executive Officer

EXHIBIT 32.1 SECTION 1350 CERTIFICATION OF CHIEF EXECUTIVE OFFICER

Pursuant to 18 U.S.C. Section 1350, as adopted by Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned officer of Getty Realty Corp. (the “Company”) hereby certifies, to such officer’s knowledge, that:

(i) the Annual Report on Form 10-K of the Company for the annual period ended December 31, 2008 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended (subject to the Company’s position prevailing in regard to the unresolved SEC comment, as more fully described in the Report); and

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: March 2, 2009


By: /s/ LEO LIEBOWITZ

Leo Liebowitz
Chairman and Chief Executive Officer

A signed original of this written statement required by Section 906 has been provided to Getty Realty Corp. and will be retained by Getty Realty Corp. and furnished to the Securities and Exchange Commission or its staff upon request.

The foregoing certification is being furnished solely to accompany the Report pursuant to 18 U.S.C. Section 1350, and is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

EXHIBIT 32.2 SECTION 1350 CERTIFICATION OF CHIEF FINANCIAL OFFICER

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: March 2, 2009


By: /s/ THOMAS J. STIRNWEIS

Thomas J. Stirnweis
Vice President, Treasurer and Chief Financial Officer