LEASE AGREEMENT

 

Dated as of March 21, 2023

between

 

NUSTAR LOGISTICS, L.P.,

as the Tenant

and

NS SAN ANTONIO TX LANDLORD, LLC,

as the Landlord

TABLE OF CONTENTS

 

1.	Certain Definitions	1
2.	Demise of Leased Premises	1
3.	Title and Condition	1
4.	Use of Leased Premises; Quiet Enjoyment	2
5.	Term	3
6.	Rent	4
7.	Net Lease; Non-Terminability	5
8.	Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements	6
9.	Liens; Recording and Title	7
10.	Indemnification	8
11.	Maintenance and Repair	9
12.	Alterations	11
13.	Condemnation	12
14.	Insurance	13
15.	Restoration	16
16.	Subordination to Financing	18
17.	Assignment, Subleasing	19
18.	Permitted Contests	20
19.	Conditional Limitations; Default Provisions	21
20.	Additional Rights of Landlord and Tenant	22
21.	Notices	23
22.	Estoppel Certificates	24
23.	Surrender and Holding Over	25

LEASE AGREEMENT

THIS LEASE AGREEMENT (as amended, supplemented or otherwise modified from time to time, this “Lease”) is made as of March 21, 2023, by and between NS SAN ANTONIO TX LANDLORD, LLC, a Delaware limited liability company, as landlord, and NUSTAR LOGISTICS, L.P., a Delaware limited partnership, as tenant.

In consideration of the rents and provisions herein stipulated to be paid and performed, the Landlord and Tenant, intending to be legally bound, hereby covenant and agree as follows:

 

 

 

 

(b)         LANDLORD LEASES AND WILL LEASE, AND TENANT TAKES AND WILL TAKE, THE LEASED PREMISES “AS IS”, AND TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE LEASED PREMISES, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO ITS FITNESS FOR ANY PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, AS TO LANDLORD’S TITLE THERETO, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS, DESIGN, LOCATION, USE, OPERATION, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY, ENVIRONMENTAL OR SOIL CONDITION OR AVAILABILITY OF UTILITIES, IT BEING AGREED THAT ALL RISKS INCIDENT TO ANY OF THE FOREGOING ARE TO BE BORNE BY TENANT. Tenant acknowledges and agrees that (i) the Leased Premises are of its selection and to its specifications, (ii) the Leased Premises have been inspected by Tenant and are satisfactory to it and (iii) Tenant has examined the title to the Leased Premises prior to the execution and delivery of this Lease and has found such title to be satisfactory for the purposes contemplated by this Lease. The provisions of this Section 3(b) have been negotiated, and the foregoing provisions are intended to be a complete exclusion and negation of any warranties by Landlord, express or implied, with respect to any of the Leased Premises, arising pursuant to the Uniform Commercial Code or any other law now or hereafter in effect or otherwise.

 

 

 

 

 

 

 

If Tenant shall exercise any such renewal option, the term of this Lease shall be automatically extended for ten (10) years without the execution of an extension or renewal lease. Any Renewal Term shall be subject to all of the provisions of this Lease, including, but not limited to, the Basic Rent provisions for such Renewal Term set forth on Exhibit B attached hereto, and all such provisions shall continue in full force and effect. Within ten (10) days after request by either Landlord or Tenant, Landlord and Tenant shall execute, acknowledge and deliver to each other an instrument confirming that such option has been effectively exercised and confirming the extended expiration date of this Lease and the then applicable Basic Rent.

 

 

 

 

 

(a)          Except as otherwise expressly provided in this Lease, this Lease shall not terminate and Tenant shall not have, and hereby waives, any right to terminate this Lease during the Term. This is a net lease and, except as otherwise expressly provided in this Lease, Tenant shall not be entitled to, and hereby waives any right to, any setoff, counterclaim, recoupment, abatement, suspension, deferment, diminution, deduction, reduction or defense of or to Basic Rent or Additional Rent, and the obligations of Tenant under this Lease shall not be affected by any circumstance or event, or for any reason, including but not limited to the following: (i) any damage to or destruction of any of the Leased Premises by any cause whatsoever, (ii) any Condemnation, (iii) the prohibition, limitation or restriction of, or interference with, Tenant’s use of any of the Leased Premises, (iv) any eviction by paramount title, constructive eviction or otherwise, (v) Tenant’s acquisition of ownership of any of the Leased Premises other than pursuant to an express provision of this Lease, (vi) any default on the part of Landlord under this Lease or under any other agreement, (vii) any latent or other defect in, or any theft or loss of, any of the Leased Premises, or (viii) any other cause, whether similar or dissimilar to the foregoing, any present or future Applicable Law to the contrary notwithstanding. This Lease is an absolute and unconditional obligation of Tenant, and it is the intention of the parties hereto that the obligations of Tenant under this Lease shall be separate and independent covenants and agreements, and that Basic Rent and Additional Rent shall continue to be payable in all events (or, in lieu thereof, Tenant shall pay amounts equal thereto), and that the obligations of Tenant under this Lease shall continue unaffected, unless expressly provided in this Lease to the contrary or unless this Lease shall have been terminated pursuant to an express provision of this Lease. Notwithstanding the foregoing, Tenant shall have the right to pursue a cause of action against Landlord for actual damages resulting from Landlord’s default under this Lease, it being understood that Tenant shall have no right to set off any such damages against the Basic Rent or Additional Rent payable under this Lease.

 

 

8.	Payment of Impositions; Compliance with Legal Requirements and Insurance Requirements.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(a)          Tenant shall at all times from and after the Closing Date, put, keep and maintain the Leased Premises (including, without limitation, the roof, landscaping, walls, footings, foundations, parking areas, driveways, signs and structural components of the Leased Premises) as a Class-A office building, in the same (or better) condition and order of repair as exists as of the Closing Date, except for ordinary wear and tear, and to no lesser standards that that maintained by owners and operators of comparable improvements of similar size and age in the area where the Leased Premises are located, and shall promptly make all repairs and replacements of every kind and nature, whether foreseen or unforeseen, which may be required to be made upon or in connection with the Leased Premises in order to keep and maintain the Leased Premises in the order and condition required by this Section 11(a). Tenant shall do or cause others to do all shoring of the Leased Premises or of foundations and walls of the Improvements and every other act necessary or appropriate for preservation and safety thereof, by reason of or in connection with any excavation or other building operation upon any of the Leased Premises, whether or not Landlord shall, by reason of any Legal Requirements or Insurance Requirements, be required to take such action or be liable for failure to do so. Tenant shall, at its cost, promptly remove snow and ice from all parking areas, driveways and sidewalks on the Leased Premises. LANDLORD SHALL NOT BE REQUIRED TO MAKE ANY REPAIR, WHETHER FORESEEN OR UNFORESEEN, OR TO MAINTAIN ANY OF THE LEASED PREMISES OR ADJOINING PROPERTY IN ANY WAY, AND TENANT HEREBY EXPRESSLY WAIVES THE RIGHT TO MAKE REPAIRS AT THE EXPENSE OF THE LANDLORD, WHICH RIGHT MAY BE PROVIDED FOR IN ANY LAW NOW OR HEREAFTER IN EFFECT. Nothing in the preceding sentence shall be deemed to preclude Tenant from being entitled to insurance proceeds or condemnation awards for Restoration pursuant to Sections 13(c) and 14(g). Tenant shall, in all events, make all repairs for which it is responsible hereunder promptly (but in any event shall commence such repairs within thirty (30) days of the date Tenant becomes aware that such repairs are necessary, or, in the event of a Restoration pursuant to Section 13(c) or 14(g), within thirty (30) days of the date insurance proceeds or a condemnation award has been paid to Landlord (it being understood that Tenant shall take such steps as are reasonably necessary to protect and preserve the integrity and safety of the Leased Premises pending such payment) and shall diligently pursue such repairs to completion), and all repairs shall be made in a good, proper and workmanlike manner.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

$1,000,000.

 

 

 

(B) containing coverage extension which provides that after the physical loss to the Leased Premises has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss or the expiration of 90 days, whichever occurs first, and (C) in an amount not less than the amount carried by prudent owners or operators of similar properties.

 

 

(i) any act, omission or neglect of Landlord, Tenant or any other Person which might, absent such provision, result in a forfeiture of all or a part of such insurance payment, or (ii) the occupation or use of any of the Leased Premises for purposes more hazardous than permitted by the provisions of such policy. Tenant hereby waives any and every claim for recovery from the Lenders and Landlord, and Landlord hereby waives any and every claim for recovery from Tenant, for any and all loss or damage covered by any of the insurance policies to be maintained under this Lease to the extent that such loss or damage is recovered by Tenant, Lenders or Landlord, respectively, under any such policy. If the foregoing waiver will preclude the assignment of any such claim to the extent of such recovery, by subrogation (or otherwise), to an insurance company (or other person), Tenant (or other appropriate party) shall give written notice of the terms of such waiver to each insurance company which has issued, or which may issue in the future, any such policy of insurance (if such notice is required by the insurance policy) and shall cause each such insurance policy to be properly endorsed by the issuer thereof to, or to otherwise contain one or more provisions that, prevent the invalidation of the insurance coverage provided thereby by reason of such waiver.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(ii) all or any portion of the Leased Premises from time to time to any Person that is a Qualified Transferee at the time of such sublease. Without the consent of Landlord, Tenant may assign its interest in this Lease to either a Qualified Transferee or to a Person that delivers a Replacement Lease Guaranty from a Qualified Transferee, provided that such assignee assumes this Lease and all obligations of Tenant hereunder arising from and after the date of such assignment; upon such assignment and assumption (and delivery of the Replacement Lease Guaranty, if applicable), the original tenant and Lease Guarantor shall be automatically released from all obligations under this Lease and the Lease Guaranty, as the case may be, with respect to circumstances or events occurring from and after the date of such assignment without further action by the parties. Notwithstanding the foregoing sentence, Landlord agrees to confirm such release in writing or otherwise execute a termination of the Lease Guaranty in form and substance reasonably acceptable to Landlord. Tenant may assign its interest in this Lease and may sublet the Leased Premises in whole or in part, from time to time, to any other Person with the prior written consent of Landlord, which consent shall not be unreasonably withheld or conditioned. The merger, consolidation or other combination of Tenant with another entity shall not require Landlord’s consent, provided that the surviving entity of such merger, consolidation or other combination becomes, by operation of law or otherwise, Tenant under this Lease. Additionally, Tenant shall be permitted to assign this Lease, without Landlord’s consent, to an entity that purchases all or substantially all of Tenant’s assets or to an entity that controls, is controlled by, or is under common control with Tenant, provided that such assignee assumes all of the obligations of Tenant hereunder, whether such obligations existed or accrued prior to, or exist or accrue as of or after, such assignment.

 

 

 

 

 

 

 

 

 

 

 

(i)        all Basic Rent and Additional Rent payable by Tenant under this Lease prior to the date that Tenant surrenders the Leased Premises to Landlord in accordance with the provisions of this Lease that has not previously been paid by Tenant, including any default interest thereon, plus

 

 

(iii)      all out-of-pocket costs paid or payable by Landlord as a result of the related Event of Default or the exercise of its remedies hereunder, including any fees or other costs payable to Lender.

 

 

 

 

	If to Landlord:
		NS San Antonio TX Landlord, LLC
		c/o SunTrust Equity Funding, LLC
		3333 Peachtree Road, NE, 7th Floor
		Atlanta, Georgia 30326
		Attention: Chip Stansfield
		Email: chip.stansfield@truist.com
	If to Tenant:
		NuStar Logistics, L.P.
		19003 IH-10 West
		San Antonio, Texas 78257
		Attention: Thomas R. Shoaf, Executive Vice President and Chief
		Financial Officer
		Email: Tom.Shoaf@nustarenergy.com

 

 

 

 

 

 

 

 

 

 

 

 

31.        Tenant Leasehold Mortgages. Anything herein to the contrary notwithstanding, Tenant may grant leasehold mortgages upon its leasehold estate. Landlord shall execute any commercially reasonable agreement requested by Tenant’s leasehold mortgagee in order to evidence Landlord’s consent, which agreement shall include provisions (i) granting notice and cure rights to such leasehold mortgagee with respect to Landlord’s intention to terminate this Lease as a result of a Tenant default hereunder, and (ii) granting succession rights to such leasehold mortgagee pursuant to which Landlord shall agree that upon any termination of this Lease after an Event of Default, Landlord shall upon request by the leasehold mortgagee enter into a new lease agreement, in form and content substantially similar to this Lease, with Tenant’s leasehold mortgagee for the balance of the unexpired Term, including Renewal Options, provided, that Tenant’s leasehold mortgagee: (A) has cured all defaults under the Lease which can be cured by the payment of money (excepting any amount payable as result of acceleration of rent by Landlord), (B) makes such request within thirty (30) days of such termination, (C) will cause the Leased Premises to be operated as a Permitted Use and (D) pays all of Landlord’s and Lender’s reasonable and actual attorneys’ fees in connection with such new lease. Tenant shall reimburse Landlord for all reasonable and actual attorneys’ fees incurred by Tenant in connection with the review, negotiation and execution of any such agreement with a leasehold mortgagee within ten (10) Business Days of receipt by Tenant of an invoice therefor.Miscellaneous.

 

 

 

 

 

 

 

 

 

[signatures appear on following page]

IN WITNESS WHEREOF, each of Landlord and Tenant have caused this Lease to be executed by its respective duly authorized officer as of the day and year first above written.

 

 

EXHIBIT A

 

A 23.947 acre, or 1,043,130 square feet more or less, tract of land out of Lot 8, Block 5, The Rim, Unit-14 recorded in Volume 9611, Page 113 of the Deed and Plat Records of Bexar County, Texas, in New City Block 14747 of the City of San Antonio, Bexar County, Texas. Said 23.947 acre tract being more fully described as follows, with bearings based on the Texas Coordinate System established for the South Central Zone from the North American Datum of 1983 NAD 83 (NA2011) epoch 2010.00:

 

 

Basic Rent for the Initial Term is due commencing on the Closing Date and on each Basic Rent Payment Date thereafter during the Initial Term in an amount equal to the amount for such Basic Rent Payment Date set forth on Schedule I attached hereto.

 

Basic Rent for the initial year of any Renewal Term shall be equal to the Fair Market Value Rent for such Renewal Term; annual Basic Rent for each subsequent year of such Renewal Term shall be equal to 102.5% of the annual Basic Rent for the immediately preceding year.

“Fair Market Value Rent” shall mean the prevailing market rental rate (stated in the form of an annual net rent per square foot of rentable area) that a willing tenant would pay, and a willing landlord would accept, at the time of determination in arm’s length, bona fide negotiations for a comparable, contemporaneous office lease transaction for the Leased Premises for the applicable Renewal Term. The determination of the Fair Market Rental Rate will be based upon a comparison of the terms of this Lease that will be applicable during the ensuing Renewal Term to other lease transactions in comparable class A office buildings, with appropriate adjustments as necessary to equate the comparable leases with the applicable terms of this Lease, taking into consideration all relevant factors, including, without limitation, (i) the annual rental rates and operating expense costs per square foot, (ii) the extent of the tenant’s liability for the performance of the covenants set forth in the lease, (iii) abatement provisions reflecting free rent or no rent subsequent to the commencement date as to the premises in question, (iv) length of the lease term, (v) size (provided that each comparable lease transaction involves no less than 50,000 square feet of rentable area of space), age, quality (including the quality of building systems), layout, site improvements, and location of rentable area of premises being leased, (vi) building standard work letter or tenant improvement allowances and architectural and/or engineering allowances, if any, (vii) other tenant concessions such as leasing commissions paid to the tenants’ brokers or agents (to the extent not already taken into account in item (i) above), lease assumptions and/or moving allowances, if any, (viii) whether or not such comparable tenants (1) have previously occupied the property, (2) have an equity interest in the property, (3) are leasing the property directly from its owner (as distinguished from subleasing from a tenant), or (4) have a comparable creditworthiness to that of Tenant as of the date of determination of the Fair Market Rental Rate, (ix) the time the particular rate under consideration was agreed upon and become or is to become effective, (x) the reimbursement of operating expenses and capital expenditures; (xi) the extent of services provided or to be provided, and (xii) other generally applicable conditions of tenancy for such comparable transactions.

 

“Appraisal Procedure” means the following procedure: Landlord shall designate an independent MAI appraiser within thirty (30) days after the Outside Agreement Date. Within thirty (30) days after selection of Landlord’s appraiser, Landlord shall notify Tenant of the determination made by Landlord’s appraiser with respect to the Fair Market Value Rent of the Leased Premises. Tenant shall then have twenty (20) days to dispute such determination and to select its own independent MAI appraiser. In the event that Tenant fails to select its appraiser within such twenty (20) day period, the determination of Landlord’s appraiser shall constitute the Fair Market Value Rent. Within twenty (20) days after the selection of Tenant’s appraiser, the two appraisers shall meet and attempt to agree as to the Fair Market Value Rent for the Leased Premises. In the event that such appraisers are unable to agree as to such Fair Market Value Rent then: (i) if the difference between the two determinations is less than five percent (5%) of the lower determination, then the average of the two determinations shall be deemed to constitute the Fair Market Value Rent; or (ii) if the difference between the two determinations is equal to or greater than five percent (5%) of the lower determination, then the two appraisers shall jointly select a third independent MAI appraiser, within ten (10) days following the expiration of such twenty (20) day period, which appraiser shall select which of the determinations of the first two appraisers shall constitute the Fair Market Value Rent within thirty (30) days after his or her appointment. If the first two appraisers cannot so agree on the third MAI appraiser, then either Landlord or Tenant may elect to have the third MAI appraiser appointed by the San Antonio chapter of the American Arbitration Association, or, if it refuses to act, any Federal District Judge for the District Court where the Leased Premises is located. Such third appraiser shall not have the right to vary or modify the determinations of the appraisers selected by Landlord and Tenant. Any appraiser selected by Tenant or Landlord must have at least ten (10) years’ experience in appraising commercial office real estate in the area in which the Leased Premises is located. The third appraiser shall not have been employed or used by Landlord or Tenant or any of their Affiliates within the five (5) year period preceding the date such third appraiser is retained. The appraisers shall not have the right to amend, modify or vary any of the terms of this Lease and the determination of the appraisers shall be final, binding and conclusive upon Landlord and Tenant.

SCHEDULE I

EXHIBIT C

---

SUBORDINATION, NON-DISTURBANCE

AND ATTORNMENT AGREEMENT

 

---

 

Dated:____________________ , 20__

Location:

County:

 

PREPARED BY AND UPON

RECORDATION RETURN TO:

 

THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) is made as of_______________________ , 20__ by and between the undersigned lender, having an address at _____________________________ (together with its any of its successors and/or assigns, “Lender”) and NUSTAR LOGISTICS, L.P., a Delaware limited partnership, having an address at ________________________________ (“Tenant”).

 

RECITALS:

 

A.          Lender has made a loan to Landlord (defined below), which Loan is given pursuant to the terms and conditions of a [Loan Agreement] between Lender and Landlord (as amended from time to time, the “Loan Agreement”). The Loan is evidenced by a certain promissory note given by Landlord to Lender (the “Note”) and secured by a certain mortgage, deed of trust or deed to secure debt dated as of even date with the Note, given by Landlord to Lender (the “Security Instrument”), which encumbers the fee estate of Landlord in certain premises described in Exhibit A attached hereto (the “Property”);

 

B.          Tenant occupies the Property under and pursuant to the provisions of that certain Lease Agreement, dated as of March 21, 2023 (as amended, supplemented and otherwise modified from time to time, the “Lease”) between _____________________________ (as successor in interest to NS San Antonio TX Landlord, LLC), as landlord (“Landlord”), and Tenant, as tenant; and

C.          Tenant has agreed to subordinate the Lease to the Security Instrument and to the lien thereof and Lender has agreed to grant non-disturbance to Tenant under the Lease, in each case on the terms and conditions hereinafter set forth.

 

AGREEMENT:

 

For good and valuable consideration, Tenant and Lender agree as follows:

 

1.          Subordination. Tenant agrees, subject to the terms and conditions of this Agreement, that the Lease and all of the terms, covenants and provisions thereof and all rights, remedies and options of Tenant thereunder are and shall at all times continue to be subject and subordinate in all respects to the Security Instrument and to the lien thereof and all terms, covenants and conditions set forth in the Security Instrument and the Loan Agreement, including without limitation, all renewals, increases, modifications, spreaders, consolidations, replacements and extensions thereof and to all sums secured thereby with the same force and effect as if the Security Instrument and Loan Agreement had been executed, delivered and (in the case of the Security Instrument) recorded prior to the execution and delivery of the Lease.

 

2.          Non-Disturbance. Lender agrees that if any action or proceeding is commenced by Lender for the foreclosure of the Security Instrument or the sale of the Property, Tenant shall not be named as a party therein unless such joinder shall be required by law, provided, however, such joinder shall not result in the termination of the Lease or disturb the Tenant’s possession or use of the premises demised thereunder. The sale of the Property in any such action or proceeding and the exercise by Lender of any of its other rights under the Note, the Security Instrument and the Loan Agreement shall be made subject to all rights of Tenant under the Lease, provided that at the time of the commencement of any such action or proceeding or at the time of any such sale or exercise of any such other rights the Lease shall be in full force and effect and Tenant shall not be in default under any of the terms, covenants or conditions of the Lease on Tenant’s part to be observed or performed beyond the expiration of any applicable notice or grace periods.

 

3.         Attornment. Lender and Tenant agree that upon the conveyance of the Property by reason of the foreclosure of the Security Instrument or the acceptance of a deed or assignment in lieu of foreclosure or otherwise, the Lease shall not be terminated or affected thereby but shall continue in full force and effect as a direct lease between the transferee of the Property (the “Transferee”) and Tenant upon all of the terms, covenants and conditions set forth in the Lease and in that event, Tenant agrees to attorn to the Transferee and the Transferee shall accept such attornment, provided, however, that the Transferee shall not be:

 

A.          liable for Landlord’s failure to perform any of its obligations under the Lease which have accrued prior to the date on which the Transferee shall become the owner of the Property;

 

B.          subject to any offsets, defenses, abatements or counterclaims which shall have accrued to Tenant against Landlord prior to the date upon which the Transferee shall become the owner of the Property, unless Tenant shall have provided Lender with notice of the applicable default that gave rise to such offset or defense, and the opportunity to cure the same, in accordance with the terms of Section 6 below;

 

C.         liable for the return of rental security deposits, if any, paid by Tenant to Landlord in accordance with the Lease unless such sums are actually received by the Transferee;

 

D.         bound by any payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any prior Landlord unless (i) such sums are actually received by the Transferee or (ii) such prepayment shall have been expressly approved of by the Transferee; or

 

E.         bound by any agreement amending, modifying or terminating the Lease made without the Lender’s prior written consent prior to the time the Transferee succeeded to Landlord’s interest.

 

4.           Notice to Tenant. After written notice is given to Tenant by Lender that the Landlord is in default under the Note and the Security Instrument and that the rentals under the Lease should be paid to Lender pursuant to the terms of the assignment of leases and rents executed and delivered by Landlord to Lender in connection therewith, Tenant shall thereafter pay to Lender or as directed by the Lender, all rentals and all other monies due or to become due to Landlord under the Lease and Landlord hereby expressly authorizes Tenant to make such payments to Lender and hereby releases and discharges Tenant from any liability to Landlord on account of any such payments.

 

5.          Lender’s Consent. Tenant shall not, without obtaining the prior written consent of Lender, (a) enter into any agreement materially amending, materially modifying or terminating the Lease, or (b) prepay any of the rents, additional rents or other sums due to Landlord under the Lease for more than one (1) month in advance of the due dates thereof; and any such amendment, modification, termination or prepayment, without Lender’s prior consent, shall not be binding upon Lender.

6.          Lender to Receive Notices. Tenant shall notify Lender of any default by Landlord under the Lease of which Tenant has actual knowledge which would entitle Tenant to cancel the Lease or to an abatement of the rents, additional rents or other sums payable thereunder, and agrees that, notwithstanding any provisions of the Lease to the contrary, no notice of cancellation thereof or of such an abatement shall be effective unless Lender shall have received notice of default giving rise to such cancellation or abatement and shall have failed within thirty (30) days after receipt of such notice to cure such default, or if such default cannot be cured within thirty (30) days, shall have failed within thirty (30) days after receipt of such notice to commence and thereafter diligently pursue any action necessary to cure such default.

7.          Notices. All notices or other written communications hereunder shall be deemed to have been properly given (i) if delivered in person, (ii) after having been deposited for overnight delivery with any reputable overnight courier service, or (iii) after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:

If to Tenant:         NuStar Logistics, L.P.

Attention:

Email:

If to Lender:

or addressed as such party may from time to time designate by written notice to the other parties. Any such notice or other communication shall be deemed to have been given on the date of receipted delivery, refusal to accept delivery or when delivery is first attempted but cannot be made due to a change of address for which no notice is given. Either party by notice to the other may designate additional or different addresses for subsequent notices or communications.

 

8.          Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Lender and Tenant and their respective successors and assigns.

 

9.           Definitions. The term “Lender” as used herein shall include the successors and assigns of Lender and any person, party or entity which shall become the owner of the Property by reason of a foreclosure of the Security Instrument or the acceptance of a deed or assignment in lieu of foreclosure or otherwise. The term “Landlord” as used herein shall mean and include the present landlord under the Lease and such landlord’s predecessors and successors in interest under the Lease, but shall not mean or include Lender. The term “Property” as used herein shall mean the Property, the improvements now or hereafter located thereon and the estates therein encumbered by the Security Instrument.

 

10.        No Verbal Modifications. This Agreement may not be modified in any manner or terminated except by an instrument in writing executed by the parties hereto.

	LENDER:
	By:
	Name:
	Title:

COUNTY OF_________________________________________  :         

	TENANT:
	NUSTAR LOGISTICS, L.P.
	By: NuStar GP, Inc., a Delaware corporation, its general partner

	By:
	Name:
	Title:

	LANDLORD:
	By:
	Name:
	Title:

I, the undersigned authority, a Notary Public in and for said county in said state, hereby certify that ___________________________,  whose  name  is  signed  to  the  foregoing  instrument  as _________________________of _________________________and who is known to me, acknowledged before me on this day that, being informed of the contents of said instrument, he executed the same voluntarily on behalf of _____________________________on the day the same bears date.

 

Given under my hand and official seal this the __________________day of ______________________,20      .

_____________________________

Notary Public

AFFIX SEAL

 

My commission expires:

______________________________

EXHIBIT A

LEGAL DESCRIPTION

A 23.947 acre, or 1,043,130 square feet more or less, tract of land out of Lot 8, Block 5, The Rim, Unit-14 recorded in Volume 9611, Page 113 of the Deed and Plat Records of Bexar County, Texas, in New City Block 14747 of the City of San Antonio, Bexar County, Texas. Said 23.947 acre tract being more fully described as follows, with bearings based on the Texas Coordinate System established for the South Central Zone from the North American Datum of 1983 NAD 83 (NA2011) epoch 2010.00:

EXHIBIT D

 

 

Reference is made to that certain Lease Agreement, dated as of March 21, 2023 (as heretofore amended, the “Lease”), between NS San Antonio TX Landlord, LLC, a Delaware limited liability company (“Landlord”), and NuStar Logistics, L.P., a Delaware limited partnership (“Tenant”). The terms used herein, which are not otherwise defined herein, shall have the same meanings as set forth in the Lease. The undersigned does hereby certify to Landlord and [insert name of potential purchaser/lender] as of _________________________, 20        , as follows:

 

1.            The Lease, a complete and accurate copy of which is attached hereto as Exhibit A and incorporated herein by this reference, has been duly authorized and executed by Tenant and is in full force and effect; there are no amendments, modifications or supplements of any kind to the Lease [add amendments, if applicable]; Tenant has not given any notice of termination under the Lease; and except for a memorandum of lease, there are no other promises, agreements, understandings, or commitments between Landlord and Tenant relating to the Lease or the Leased Premises currently in effect.

 

2.            Tenant is in full and complete possession of the Leased Premises, such possession having been delivered by Landlord pursuant to the Lease and, as between Tenant and Landlord, having been unconditionally accepted by Tenant.

 

3.           Tenant has no offsets, claims or defenses to the payment of Basic Rent or Additional Rent under the Lease.

 

4.            No security deposit has been given by Tenant under the terms of, or with respect to, the Lease.

 

5.            No uncured default, event of default, or breach by Tenant (or, to Tenant ’s actual knowledge, Landlord) exists under the Lease, and no event has occurred that, with the passage of time will or could constitute a default, event of default, or breach by Tenant (or, to Tenant ’s actual knowledge, Landlord) under the Lease. Tenant has made no claim against Landlord alleging the Landlord’s default under the Lease.

 

6.            To Tenant’s actual knowledge, there are no rental, lease, or similar commissions payable with respect to the Lease that remain unpaid, and Tenant has not entered into any agreements, oral or written, under which any rental, lease, or similar commission would be payable in the future with respect to the Lease.

 

8.            The Initial Term of the Lease commenced on March 21, 2023, and unless the Lease is extended or terminated sooner as provided in the Lease, shall expire on March 31, 2043.

 

9.           Pursuant to, and in accordance with, the terms and provisions of the Lease, Tenant has the option to extend the Lease for up to two (2) consecutive Renewal Terms of ten (10) years each.

10.          Tenant has no outstanding options, rights of first refusal or rights of first offer to purchase the Leased Premises or any part thereof.

 

11.          Tenant is the holder of all right, title and interest in the leasehold estate created by the Lease. Tenant has not transferred, assigned, or sublet any portion of the Leased Premises

[except as follows: __________________ ]. Tenant has not received written notice of any assignment, hypothecation, mortgage or pledge of Landlord’s interest in the Lease or the rents or other amounts payable thereunder.

 

12.          No actions, whether voluntary or involuntary, are pending against Tenant under any bankruptcy, insolvency or similar laws of the United States or any state thereof.

 

13.          The undersigned representative of Tenant is duly authorized and fully qualified to execute this instrument on behalf of Tenant thereby binding Tenant. This Estoppel Certificate shall be binding upon Tenant and its successors and assigns and shall inure to the benefit of and be enforceable by Landlord and its successors and assigns.

 

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IN WITNESS WHEREOF, the undersigned has caused this Estoppel Certificate to be executed by its duly authorized officer as of the date written above.

See the Attached

EXHIBIT E

 

 

 

 

 

 

 

 

 

“Additional Rent” shall mean all amounts, costs, expenses, liabilities, indemnities and obligations (including Tenant’s obligation to pay any Default Rate interest hereunder) which Tenant is required to pay pursuant to the terms of this Lease, other than Basic Rent.

 

“Affiliate” of any Person shall mean any other Person directly or indirectly controlling, controlled by or under common control with, such Person and shall include, if such Person is an individual, members of the immediate family of such Person, and trusts for the benefit of such individual. For the purposes of this definition, the term “control” (including the correlative meanings of the terms “controlling”, “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 policies of such Person, whether through the ownership of voting securities or by contract or otherwise.

 

“Alteration” or “Alterations” shall mean any or all changes, additions (whether or not adjacent to or abutting any then existing buildings), expansions (whether or not adjacent to or abutting any then existing buildings), improvements, reconstructions, removals or replacements of any of the Improvements or Equipment, both interior or exterior, and ordinary and extraordinary, it being understood that Alterations shall not include repairs or ordinary maintenance.

 

“Applicable Laws” shall mean all existing and future applicable laws (including common laws), rules, regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of any Governmental Authorities, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, arbitrator or other administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to the environment and those pertaining to the construction, use or occupancy of the Leased Premises). Applicable Laws shall include Environmental Laws.

 

“Basic Rent” shall mean the amounts set forth on Exhibit B annexed to this Lease.

 

“Basic Rent Payment Dates” shall mean the Closing Date and the first Business Day of each month thereafter during the Term.

 

“Business Day” means any day other than a Saturday or a Sunday or other day on which commercial banks in the State of Georgia are required or are authorized to be closed.

 

“CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9657.

 

“Claims” shall mean Liens (including, without limitation, Lien removal and bonding costs), liabilities, obligations, damages, losses, demands, penalties, assessments, payments, fines, claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including, without limitation, reasonable and actual out-of-pocket legal fees and expenses and costs of investigation and enforcement) of any kind and nature whatsoever.

 

“Closing Date” shall mean March 21, 2023.

“CNTA” or “Consolidated Net Tangible Assets” of a Person shall mean at any date of determination, the total amount of assets after deducting (a) all current liabilities, excluding (i) any current liabilities renewable or extendable at the option of such Person to a time more than 12 months after the time CNTA is being computed, and (ii) current maturities of long-term debt, and (b) the value, net of any applicable amortization, of all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the consolidated balance sheet of such Person for such Person’s most recently completed fiscal quarter, prepared in accordance with GAAP.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“Condemnation” shall mean a Taking and/or a Requisition.

“Consolidated Debt” means, for any Person and for any day, all Indebtedness of such Person and its subsidiaries, on a consolidated basis, as of the last day of the reporting period of the most recent quarterly or annual consolidated financial statements, prepared in accordance with GAAP, for such Person.

“Consolidated Debt Coverage Ratio” means, for any Person and for any day, the ratio of (a) Consolidated Debt as of the last day of the reporting period of the most recent quarterly or annual consolidated financial statements, prepared in accordance with GAAP, for such Person over (b) Consolidated EBITDA for such reporting period.

“Consolidated EBITDA” means, without duplication, as to any Person and its subsidiaries, on a consolidated basis for any period, an amount equal to the sum of (i) net income for such period plus (ii) without duplication and to the extent deducted in computing net income for such period, (A) Consolidated Interest Expense for such period, (B) income tax expense for such period, (C) depreciation for such period, (D) amortization for such period and (E) all other non-cash expenses or losses for such period minus (iii) without duplication and to the extent included in computing net income for such period, non-cash income or gains and extraordinary gains for such period.

“Consolidated Interest Expense” shall mean, for any Person for any period determined on a consolidated basis with such Person’s subsidiaries in accordance with GAAP, the sum of (i) total interest expense, including the interest component of any payments in respect of capital leases capitalized or expensed during such period (whether or not actually paid during such period) plus (ii) the net amount due and payable (or minus the net amount receivable) under interest rate swaps during such period (whether or not actually paid or received during such period).

 

“Default Rate” shall mean the greater of (i) 8.50% per annum and (ii) the then current Prime Rate plus 3.00% per annum.

 

“Environmental Laws” shall mean and include the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-6987, as amended by the Hazardous and Solid Waste Amendments of 1984, CERCLA, the Hazardous Materials Transportation Act of 1975, 49 U.S.C.

§§ 5101 et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, the Clean Air Act, 42

 

U.S.C. §§ 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq and all other federal, state and local laws, ordinances, rules, orders, statutes, codes and regulations applicable to the Leased Premises or the operations thereon or use thereof and (i) relating to the environment, human health or natural resources, (ii) regulating, controlling or imposing liability or standards of conduct concerning Hazardous Materials, or (iii) regulating the clean-up or other remediation of the Leased Premises or any portion thereof, as any of the foregoing may have been amended, supplemented or supplanted from time to time.

 

“Equipment” shall mean, collectively, the machinery and equipment which is attached to the Improvements in such a manner as to become fixtures under Applicable Law, together with all additions and accessions thereto, substitutions therefor and replacements thereof, excepting therefrom the Trade Fixtures.

 

“Event of Default” shall mean the occurrence of any one or more of the following events under this Lease: (i) a failure by Tenant to make (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which had or might have the effect of preventing Tenant from complying with the provisions of this Lease): (x) any payment of Basic Rent when due and payable and the continuance of such failure for three (3) Business Days after Landlord gives notice of such failure to Tenant or (y) any payment of any other sum herein required to be paid by Tenant which continues unremedied for a period of ten (10) days after written notice thereof to Tenant; (ii) failure by Tenant to perform and observe, or a violation or breach of, any other provision in this Lease and, in any such case, such default shall continue for a period of thirty (30) days after written notice thereof is given by Landlord, or if such default is of such a nature that it cannot reasonably be cured within such period of thirty (30) days, such period shall be extended for such longer time as is reasonably necessary (not to exceed 365 days if such default is causing, or is reasonably likely to cause, a Material Adverse Condition) so long as Tenant diligently and in good faith prosecutes such efforts to completion; (iii) Tenant or Lease Guarantor shall (A) voluntarily be adjudicated a bankrupt or insolvent, (B) voluntarily consent to the appointment of a receiver or trustee for itself or for any of the Leased Premises, (C) voluntarily file a petition seeking relief under the bankruptcy or other similar laws of the United States, any state or any jurisdiction, (D) voluntarily file a general assignment for the benefit of creditors, (E) be the subject of an involuntary case or proceeding against Tenant or Lease Guarantor of the nature referred to in the foregoing subclauses of this clause (iii) which remains undismissed for more than one hundred eighty (180) days or (F) generally not be paying its debts as they become due, or state publicly that it cannot, or that it anticipates that it will not be able to, generally pay its debts as they become due; (iv) a court shall enter an order, judgment or decree appointing a receiver or trustee for Tenant or Lease Guarantor or for the Leased Premises or approving a petition filed against Tenant which seeks relief under the bankruptcy or other similar laws of the United States or any State or otherwise entering an order for relief in any such proceeding, and such order, judgment or decree shall remain in force, undischarged or unstayed, one hundred eighty (180) days after it is entered; (v) Tenant shall in any insolvency proceedings be liquidated or dissolved or shall voluntarily commence proceedings towards its liquidation or dissolution; (vi) the estate or interest of Tenant in the Leased Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred or such process shall not be vacated or discharged within ninety (90) days after such levy or attachment; or (vii) the Lease Guarantor shall contest the validity of, or repudiate, the Lease Guaranty in whole or in party.

“Expected Useful Life” of any Required Capital Expenditure means the expected useful life thereof as of the date such Required Capital Expenditure is made, as determined in accordance with GAAP and as stated in months.

 

“Expiration Date” shall mean the last day of the month in which the twentieth (20^th) anniversary of the Closing Date occurs, unless the Closing Date is the first day of a calendar month, in which case the Expiration Date shall mean the last day of the calendar month immediately preceding the month in which the twentieth (20^th) anniversary of the Closing Date occurs.

 

“GAAP” shall mean generally accepted accounting principles, uniformly applied, as in effect from time to time in the United States of America.

 

“Governmental Authority” shall mean any federal, state, county, municipal, foreign or other governmental or regulatory authority, agency, board, body, instrumentality, court or quasi governmental authority (or private entity in lieu thereof).

 

“Hazardous Materials” shall mean all chemicals, petroleum, crude oil or any fraction thereof, hydrocarbons, polychlorinated biphenyls (PCBs), asbestos, asbestos-containing materials and/or products, urea formaldehyde, or any substances which are classified as “hazardous” or “toxic” under CERCLA; hazardous waste as defined under the Solid Waste Disposal Act, as amended 42 U.S.C. § 6901; air pollutants regulated under the Clean Air Act, as amended, 42

U.S.C. § 7401, et seq.; pollutants as defined under the Clean Water Act, as amended, 33 U.S.C. § 1251, et seq., any pesticide as defined by Federal Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. § 136, et seq., any hazardous chemical substance or mixture or imminently hazardous substance or mixture regulated by the Toxic Substances Control Act, as amended, 15 U.S.C. § 2601, et seq., any substance listed in the United States Department of Transportation Table at 45 CFR 172.101; any chemicals included in regulations promulgated under the above listed statutes or any similar federal or state statutes relating to the environment, human health or natural resources; any explosives, radioactive material, and any chemical regulated by state statutes similar to the federal statutes listed above and regulations promulgated under such state statutes.

 

“Imposition” or “Impositions” shall mean, collectively, all Taxes of every kind and nature on or with respect to the Leased Premises or the Basic Rent or Additional Rent, or the use, lease, ownership or operation thereof; all charges, fees, expenses and/or taxes for or under any Record Agreement or other agreement maintained for the benefit of the Leased Premises; all general and special assessments, levies, permits, inspection and license fees on or with respect to the Leased Premises; all water and sewer rents and other utility charges on or with respect to the Leased Premises; all ground rents on or with respect to the Leased Premises, if any; all common area maintenance fees, if any, applicable to the Leased Premises, and all other public charges and/or taxes whether of a like or different nature, even if unforeseen or extraordinary, imposed or assessed upon or with respect to the Leased Premises, prior to or during the Term, against Landlord, Tenant or any of the Leased Premises as a result of or arising in respect of the occupancy, leasing, use, maintenance, operation, management, repair or possession thereof, or any activity conducted on the Leased Premises, or the Basic Rent or Additional Rent, including without limitation, any sales tax, occupancy tax, rent tax or excise tax levied by any governmental body on or with respect to such Basic Rent or Additional Rent; all payments required to be made to a governmental or quasi- governmental authority (or private entity in lieu thereof) that are in lieu of any of the foregoing, whether or not expressly so designated; and any penalties, fines, additions or interest thereon or additions thereto, provided that the term “Impositions” shall exclude any federal, state or local (A) transfer taxes as the result of a conveyance by (or suffered by) Landlord to any Person other than (1) Tenant or a person designated by Tenant or (2) as a result of an Event of Default, (B) franchise, capital stock, gross income taxes that are in the nature of franchise or capital stock taxes or similar taxes, if any, of Landlord, except to the extent such franchise, capital stock or similar taxes would not have been payable by Landlord but for the ownership by Landlord of the Leased Premises, (C) income, excess profits or other taxes, if any, of Landlord, determined on the basis of or measured by its net income, (D) estate, inheritance, succession, gift, capital levy or similar taxes of Landlord, or (E) Tax that would not have been imposed but for the failure of an Indemnitee to comply with certification, information, documentation or other reporting requirements applicable to such Indemnitee and for which Tenant is not responsible under this Lease, if compliance with such requirements is required by statute or regulation of the relevant taxing authority as a precondition to relief or exemption from such Tax.

 

“Improvements” shall mean, collectively, the buildings, structures and other improvements on the Land.

 

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments or by any other securities providing for the mandatory payment of money (including, without limitation, preferred stock subject to mandatory redemption or sinking fund provisions), (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all guarantees by such Person of Indebtedness of others, (h) all capital lease obligations of such Person, (i) all non-contingent obligations of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) all obligations of such Person with respect to any arrangement, directly or indirectly, whereby such Person or its subsidiaries shall sell or transfer any material asset, and whereby such Person or any of its subsidiaries shall then or immediately thereafter rent or lease as lessee such asset or any part thereof, and (l) all recourse or repurchase obligations of such Person with respect to any securitization transactions. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

“Indemnitee” shall mean Landlord, Lender, any trustee under a Mortgage which is a deed of trust, each of their assignees or other transferees and each of their respective officers, directors, employees, shareholders, members or other equity owners.

“Initial Term” shall mean the period of time commencing on the Closing Date and terminating on the Expiration Date.

 

“Insurance Expiration Date” shall mean, with respect to an insurance policy, the date that such insurance policy will expire.

 

“Insurance Requirements” shall mean, as the case may be, any one or more of the terms of each insurance policy required to be carried by Tenant under this Lease and the requirements of the issuer of such policy.

 

“Investment Grade Rating” with respect to any Person means that such Person, at the time of determination, has a long-term, unsecured debt rating of Baa3 or higher by Moody’s Investors Services, Inc. and BBB- or higher by S&P Global Ratings.

 

“Land” shall mean the lot(s) or parcel(s) of land described in Exhibit A attached to this Lease and made a part hereof, together with the easements, rights and appurtenances thereunto belonging or appertaining.

 

“Landlord” shall mean NS San Antonio TX Landlord, LLC, a Delaware limited liability company.

“Lease Guarantor” shall mean NuStar Energy, L.P., a Delaware limited partnership, provided that if a Replacement Lease Guaranty is delivered to Landlord, then “Lease Guarantor” shall mean the Person that is the guarantor thereunder.

 

“Lease Guaranty” shall mean the Guaranty, dated as of March 21, 2023, issued by the Lease Guarantor, as it may be amended, supplemented or otherwise modified from time to time.

 

“Leased Premises” shall mean, collectively, the Land, the Improvements and the Equipment, together with any and all other property and interest in property conveyed to Landlord pursuant to the deeds, bills of sale or other documents executed in connection with the purchase of the Land, the Improvements and the Equipment by Landlord.

 

“Legal Requirement” or “Legal Requirements” shall mean, as the case may be, any one or more of all present and future laws, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, even if unforeseen or extraordinary, of every duly constituted governmental authority or agency and all covenants, restrictions and conditions now of record which may be applicable to Tenant, Landlord (with respect to the Leased Premises) or to all or any part of or interest in the Leased Premises, or to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of the Leased Premises, even if compliance therewith (i) necessitates structural changes or improvements (including changes required to comply with the Americans with Disabilities Act) or results in interference with the use or enjoyment of the Leased Premises or (ii) requires Tenant to carry insurance other than as specifically required by the provisions of this Lease.

“Lender” shall mean any financial institution or other Person that makes a Loan to Landlord, secured, directly or indirectly, by a Mortgage and evidenced by a Note.

 

“Lien” or “Liens” shall mean any lien, mortgage, pledge, charge, security interest or encumbrance of any kind, or any type of preferential arrangement that has the practical effect of creating a security interest, including, without limitation, any thereof arising under any conditional sale agreement, capital lease or other title retention agreement.

 

“Loan” shall mean a loan made by a Lender to Landlord secured by a Mortgage and evidenced by a Note.

 

“Material Adverse Condition” means a circumstance or event that has caused, or is causing, a material deterioration in the condition, utility or value of the Leased Premises or any part thereof or is resulting, or is reasonably expected to result, in a material liability on the part of Landlord (even if Landlord is indemnified therefor by Tenant) or in any possibility of criminal liability on the part of Landlord or in an inability, or likely inability of Landlord to sell the Leased Premises without a material reduction in price or in an inability or likely inability to insure the Leased Premises as required by this Lease.

 

“Mortgage” shall mean a mortgage, deed of trust or similar security instrument hereafter executed covering the Leased Premises from Landlord to secure the repayment of a Loan.

 

“Net Award” shall mean the entire award payable to Landlord by reason of a Condemnation, less any reasonable and actual out-of-pocket expenses incurred by Landlord in collecting such award.

 

“Net Proceeds” shall mean the entire proceeds of any insurance required under clause (i), (iv), or (vi) of Section 14(a) of this Lease, less any actual and reasonable expenses incurred by Tenant or Landlord in collecting such proceeds.

 

“Note” or “Notes” shall mean a promissory note or notes executed from Landlord to a Lender, which note or notes is secured by a Mortgage.

 

“Permitted Encumbrances” shall mean those covenants, restrictions, reservations, Liens, conditions, encroachments, easements and other matters of title that affect the Leased Premises as of the date of Landlord’s acquisition thereof.

 

“Person” shall mean an individual, corporation, partnership, joint venture, association, joint-stock company, trust, limited liability company, non-incorporated organization or government or any agency or political subdivision thereof.

 

“Prime Rate” shall mean the prime rate of interest published in The Wall Street Journal or its successor, from time to time.

 

“Prohibited Use” means any use listed on Exhibit E hereto.

 

“Qualified Transferee” means a Person who meets the following criteria:

 

 

 

“Record Agreement” shall mean an easement agreement, restrictive covenant, declaration, right-of-way or any other agreement or document of record now or hereafter affecting the Leased Premises, including each Permitted Encumbrance for as long as it is in effect.

“Release” shall mean the release of any Hazardous Materials into or upon any land or water or air, or otherwise into the environment, including, without limitation, by means of burial, disposal, discharge, emission, injection, spillage, leakage, seepage, leaching, dumping, pumping, escaping, emptying, or placement.

 

“Renewal Option Notice” shall mean a written notice from Tenant to Landlord of its election to extend the Term (or any then Renewal Term) of this Lease pursuant to Section 5 of this Lease.

 

“Renewal Term” shall mean an additional Lease term of ten (10) years. “Rent” shall mean, collectively, Basic Rent and Additional Rent.

“Replaced Equipment” shall mean Equipment that has been replaced by Tenant with Replacement Equipment.

 

“Replacement Equipment” shall mean operational equipment or other parts used by Tenant to replace any of the Equipment.

 

“Replacement Lease Guaranty” shall mean a lease guaranty delivered by a Qualified Transferee in connection with the assignment of this Lease by Tenant in substantially the form of the Lease Guaranty delivered to Landlord on the Closing Date.

 

“Required Capital Expenditure” means a single repair or replacement, or series of related repairs or replacements, in each case, of a capital nature as determined in accordance with GAAP that cost in excess of $250,000 in the aggregate, that have an Expected Useful Life in excess of one (1) year and that are required to be made to the Leased Premises as a result of a change to an Applicable Law effected after the Closing Date and that are not required as a result of (i) Tenant’s particular use of the Leased Premises, (ii) Tenant’s waste on the Leased Premises or any part thereof or failure to maintain the Leased Premises or any part thereof in accordance with the terms of this Lease or (iii) Tenant’s construction or planned construction of any Alteration.

“Requisition” shall mean any temporary condemnation or confiscation of the use or occupancy of the Leased Premises by any Governmental Authority, civil or military, whether pursuant to an agreement with such Governmental Authority in settlement of or under threat of any such requisition or confiscation, or otherwise.

 

“Restoration” shall mean, following a casualty or Condemnation, the restoration of the Leased Premises to as nearly as possible its value, condition and character immediately prior to such casualty or Condemnation (assuming that the Leased Premises has been maintained to no lesser standard than that required under this Lease), in accordance with the provisions of this Lease, including but not limited to the provisions of Sections 11(a), 12 and 15.

 

“Restoration Award” shall mean that portion of the Net Award equal to the cost of Restoration.

 

“Restoration Fund” shall mean, collectively, the Net Proceeds, Restoration Award and Tenant’s Insurance Payment required to be deposited with Landlord but only to extent the Restoration exceeds the Threshold; it being agreed that any Net Award or Net Proceeds for Restoration that equal or is less than the Threshold shall be paid directly to Tenant.

 

“SEC” means the Securities and Exchange Commission.

 

“State” shall mean the State or Commonwealth in which the Leased Premises is situated.

“Structural Alteration” shall mean an Alteration that (i) will result in a change in the footprint of the Improvements, (ii) involves the addition of one or more floors to the Improvements, (iii) affects the structural elements or any exterior walls of the Improvements, (iv) decreases the rentable square footage of the Leased Premises other than to a de minimis extent or (v) adversely affects the proper functioning and/or capacity of the building systems in the Improvements.

 

“Taking” shall mean any taking of the Leased Premises, or any portion thereof, in or by condemnation or other eminent domain proceedings pursuant to any law, general or special, or by reason of any agreement with any condemnor in settlement of or under threat of any such condemnation or other eminent domain proceedings or by any other means, or any de facto condemnation.

 

“Tax” or “Taxes” shall mean the following present and future taxes, including income (gross or net), gross or net receipts, sales, use, leasing, value added, franchise, doing business, transfer, capital, property (tangible or intangible), ad valorem, municipal assessments, rent, excise and stamp taxes, levies, imposts, duties, charges, assessments or withholding, together with any penalties, fines, additions or interest thereon or additions thereto (any of the forgoing being referred to herein individually as a “Tax”), imposed by any Governmental Authority. Taxes shall include the costs of any contest or appeal pursued which reduces the Taxes (or attempts to do so), including reasonable attorneys’ fees and costs incident thereto. Without limiting the foregoing, if at any time during the term of this Lease the methods of taxation prevailing at the execution hereof shall be changed or altered so that in lieu of or as a supplement or addition to or a substitute for the whole or any part of the real estate taxes or assessments now or from time to time thereafter levied, assessed or imposed by applicable taxing authorities for the funding of governmental services, there shall be imposed (i) a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, on the gross rents received or otherwise attributable to the Leased Premises, or (ii) a tax, assessment, levy (including but not limited to any municipal, state or federal levy), imposition or charge measured by or based in whole or in part upon the Leased Premises or this Lease, and imposed on the Landlord under this Lease or any portion thereof, or (iii) a license fee or other fee or tax measured by the gross rent payable under this Lease, or (iv) any other tax, assessment, levy, charge, fee or the like payable with respect to the Leased Premises, the rents, issues and profits thereof, then all such taxes, assessments, levies, impositions and/or charges, or the part thereof so measured or based, shall be deemed to be Taxes.

“Tenant” shall mean NuStar Logistics, L.P., a Delaware limited partnership. “Tenant Party” shall mean each of Tenant and each subtenant, assignee, employee, invitee, licensee, contractor, subcontractor, agent, successor or representative of Tenant.

 

“Tenant’s Award” shall mean, to the extent Tenant shall have a right to make a separate claim therefor against the condemnor, any award or payment (in connection with a Condemnation) for Tenant’s leasehold interest hereunder, relocation assistance available to Tenant under federal or state law including, but not limited to, on account of Trade Fixtures, Tenant’s moving expenses and Tenant’s out-of-pocket expenses incidental to the move, if available.

 

“Tenant’s Insurance Payment” shall mean, in the event of damage or destruction, the amount of the proceeds that would have been payable under the third-party insurance required to be maintained pursuant to Section 14(a)(i), (iv) or (vi) had such insurance program been in effect.

 

“Tenant’s Termination Notice” shall mean a written notice from Tenant to Landlord of Tenant’s intention to terminate this Lease in accordance with Section 13 or 14 of this Lease, which notice shall set forth the Termination Date.

 

“Term” shall mean the Initial Term, together with any Renewal Term.

 

“Termination Date” shall mean the date for the termination of this Lease pursuant to Tenant’s Termination Notice, which date shall be on a Basic Rent Payment Date occurring no sooner than thirty (30) days after the date of such Tenant’s Termination Notice.

 

“Threshold Amount” shall mean $3,000,000.

 

“Trade Fixtures” shall mean all furniture, fixtures, equipment and other items of personal property (whether or not attached to the Improvements) that are owned by Tenant and used in connection with the operation of the business conducted on the Leased Premises, that are not necessary for the operation of the Leased Premises and that have not been financed or funded by Landlord.

 

“Warranties” shall mean all warranties, guaranties and indemnities, express or implied, and similar rights which Landlord may have against any manufacturer, seller, engineer, contractor or builder in respect of any of the Leased Premises, including, but not limited to, any rights and remedies existing under contract or pursuant to the Uniform Commercial Code.