EXHIBIT 10.42
FUEL SERVICE AND TRUCK STOP OPERATING AGREEMENT
1) PARTIES: This Fuel Service and Truck Stop Operating Agreement (the
"Operating Agreement"), dated effective the first day of ____________________
199 __ is entered into by and between RVC Operations, L.L.C. (hereinafter
"Operator") and RIVER PORT TRUCK STOP, L.L.C. (hereinafter "Establishment
Licensee"), both entities represented by their duly authorized managers and/or
officers pursuant to resolutions, which are attached hereto and made a part
hereof, in consideration of their mutual covenants and Establishment Licensee
hereby contracts with Operator and Operator contracts with Establishment
Licensee, on the terms and conditions herein, to operate a truck stop at the
following described premises (hereinafter the "Truck Stop"):
Two (2) tracts of land containing 5.65 and 2.23 acres respectively, situated in
West Baton Rouge Parish, Louisiana in Section 93, Township 7 South, Range 12
East, as shown on a plan of survey prepared by Xxxxxx X. Xxxxx & Associates,
Inc., and dated January 5, 1973, revised February 28, and April 5, 1973, a copy
of which is provided in Attached "A" to this Operating Agreement.
2) KIND OF BUSINESS: Establishment Licensee requires Operator to
operate, and Operator hereby agrees to operate, the Truck Stop throughout the
full term of the Operating Agreement, and the principal business to be conducted
includes truck stop fuel sales, maintenance of truck parking and trucker's
lounge facilities as required by State Gaming Regulations to enable
Establishment Licensee to operate a Video Poker Casino with the maximum number
of video poker gaming devices permitted by applicable law (which is currently 50
devices) and/or such other gaming devices as may subsequently allowed by law. In
addition to the hold harmless and indemnity in Article 21(E), Operator agrees to
comply with, hold harmless, indemnify and defend Establishment Licensee from any
violations of all laws, regulations, or ordinances relative to Operator's use of
the premises. Establishment Licensee requires Operator to fully comply with all
laws and regulations applicable to Operator's business under this Agreement,
including, but not limited to, Video Draw Poker Devices Statute (La. R.S.
33:4862.6 (A) (4) (a)) pertaining to the requirements of a "QUALIFIED TRUCK STOP
FACILITY" ( Attachment "B"). Establishment Licensee requires Operator to
maintain, and Operator hereby agrees to maintain, qualified retailer status for
the sale of TEXACO products, or any other mutually agreeable gasoline and diesel
fuel products to be sold at the Truck Stop during the full term of this
Operating Agreement.
3) RESOLUTORY CONDITION: The validity of this contract shall be subject
to a resolutory condition which condition shall be the disapproval of this
contract by any of the regulatory agencies which require said approval,
including, but not limited to, the Louisiana Gaming Control Board and the Video
Gaming Division of the Louisiana State Police. Furthermore, in the event that
any such regulatory agency should disapprove of any of the terms and/or
conditions of this contract, or in the event that any of the terms and/or
conditions of this contract would otherwise adversely affect the licensure of
either party hereto by any such regulatory agency, including, but not limited
to, the Louisiana Gaming Control Board and the Video Gaming Division of the
1
Louisiana State Police, then in either of said events, any such term of
condition hereof shall be null and void retroactive to the date of the signing
of this contract and shall have no binding effect on the parties hereto.
4) ULTIMATE AUTHORITY: Although Operator shall be responsible for and is
authorized to conduct the day-to-day sale of fuel at the Truck Stop,
Establishment Licensee does hereby reserve and shall have ultimate authority and
control over the operations and fuel pricing at the Truck Stop, as would be
required to satisfy any and all regulatory obligations for the continued
operation of the Truck Stop and the video gaming devices located in the gaming
area, including the right to terminate this contract upon the disapproval of the
Louisiana Gaming Control Board of this contract or upon the disapproval of this
contract by any other regulatory agency which requires said approval. This
Agreement shall not be considered or interpreted as a lease between the parties,
nor shall it be construed that Operator has any control whatsoever of the fuel
facilities of the Truck Stop.
5) TERM: The initial term of this Operating Agreement is for FIFTEEN
(15) YEARS, effective ________________________ (the "Effective Date") and
terminating on ___________________. Notwithstanding the Effective Date, this
Operating Agreement shall not become effective until Operator receives any and
all federal, state, parish or city licenses and permits necessary to operate a
"QUALIFIED TRUCK STOP FACILITY" which must include a "CLASS A-GENERAL RETAIL
PERMIT" and a "CLASS A- RESTAURANT PERMIT", as defined in Part II of Chapter 2
of Title 26 of the Louisiana Revised Statutes of 1950. An "Option to Renew"
this Operating Agreement is also provided herein for an additional FIFTEEN (15)
YEARS based on the same terms and conditions provided for during the initial
term.
6) CONSIDERATION: Operator shall purchase from D & S Distributors, Inc. or
any other mutually agreeable fuel distributor all gasoline and diesel fuel to be
sold at the Truck Stop. Operator agrees to pay Establishment Licensee, without
deduction, off-set, prior notice, or demand, on the tenth day of each month
during the term of this Agreement a ROYALTY (herein so called) on all proceeds
derived from the sale of gasoline and diesel fuel during the preceding month
based on a sale production schedule. The following Royalty Percentages (herein
so called) are hereby established and agreed upon for the following categories:
(A) a Royalty based on gallons of diesel sold and (B) a Royalty based on gallons
of gasoline sold, as follows:
(A) ROYALTY BASED ON GALLONS OF DIESEL SOLD
-------------------------------------------
INCREMENTAL CUMM. % EST. $ EST. CUMM.
GALLONS SOLD GAL. SOLD ROYALTY ROYALTY $ ROYALTY
------------ ---------- -------- ------- ------------
Up To 1,500,000 1,500,000 1.00% $15,000 $15,000
Next 300,000 1,800,000 1.25% 3,750 18,750
Next 300,000 2,100,000 1.50% 4,500 23,250
Next 300,000 2,400,000 1.75% 5,250 28,500
Next 300,000 2,700,000 2.00% 6,000 34,500
Next 300,000 3,000,000 2.50% 7,500 42,000
2
Next 300,000 3,300,000 2.75% 8,250 50,250
Next 300,000 3,600,000 3.00% 9,000 59,250
Max 300,000 3,900,000 3.00% 9,000 68,250
(B) ROYALTY BASED ON GALLONS OF GASOLINE SOLD
---------------------------------------------
INCREMENTAL CUMM. % EST. $ EST. CUMM.
GALLONS SOLD GAL. SOLD ROYALTY ROYALTY $ ROYALTY
------------ --------- -------- ------- ------------
Up To 750,000 750,000 2.00% $15,000 $15,000
Next 150,000 900,000 2.25% 3,375 18,375
Next 150,000 1,050,000 2.50% 3,750 22,125
Next 150,000 1,200,000 2.75% 4,125 26,250
Next 150,000 1,350,000 3.00% 4,500 30,750
Next 150,000 1,500,000 3.50% 5,250 36,000
Next 150,000 1,650,000 3.75% 5,625 41,625
Next 150,000 1,800,000 4.00% 6,000 47,625
Max. 150,000 1,950,000 4.00% 6,000 53,625
All Royalties derived from Royalty Percentages will be subject to audit by the
Establishment Licensee or its agents, who shall have the right, on demand, to
review Operator's state sales tax returns, all cash register data, including
computer files, tapes and receipts, all bank deposits and all records pertaining
to verification of pricing of fuel available for sale relative to the cost of
goods sold, to ensure the accurate recording of all sales for cash, credit card
and accounts receivable transactions.
All amounts due Establishment Licensee hereunder are payable to the order of
RIVER PORT TRUCK STOP, L.L.C. and shall be delivered to Establishment Licensee
or its agent at 00000 XXXX XXXX, XXXXXX, XXXXX, 00000, or as Establishment
Licensee or its successors or assigns may hereafter from time to time designate
in writing pursuant to the Notice clause set forth herein.
7) SECURITY DEPOSIT: On the Effective Date, there shall be due and
payable by Operator a security deposit in an amount of SEVEN THOUSAND-FIVE
HUNDRED DOLLARS ($7,500) to be held for the performance by Operator of
Operator's covenants and obligations under this Operating Agreement. It is
understood that the deposit shall not be considered an advance payment of
consideration or a measure of Establishment Licensee's damage in case of default
by Operator or breach by Operator of Operator's covenants under this Operating
Agreement. Establishment Licensee may, from time to time, without prejudice to
any other remedy, use the security deposit to the extent necessary to make good
any event of default or breach of covenant of Operator, and any remaining
balance of the security deposit shall be returned by Establishment Licensee to
Operator upon termination of this Operating Agreement.
8) DELIVERY OF PREMISES: Operator hereby agrees to accept the Truck Stop
3
in its existing condition, except for liability for environmental contamination
pre-existing the Effective Date hereof and except for remedial costs to clean-up
any pre-existing environmental contamination. With the environmental exception
above, Lessee assumes responsibility for the condition of the Truck Stop
premises thereafter the Effective Date. Any additional improvements or
alterations desired by Operator thereafter shall be at the Operator's cost, with
Establishment Licensee's prior written approval, except as hereinafter provided.
9) TAXES: In addition to the Royalty provided for above, Operator shall
pay each month, a ROYALTY SUR-CHARGE (herein so called) which represents an
allocated portion of the real estate taxes and assessments, general and special,
levied or imposed, with respect to said Truck Stop, including any additions to
the Truck Stop, which for the purposes hereof shall be deemed to include related
parking facilities and all the improvements to said building, as estimated by
Establishment Licensee. In the month of December of each year, Establishment
Licensee shall furnish Operator with a statement providing the amount of taxes
levied against the land, building and improvements, and Operator's share of said
tax, and the amount of the tax paid by Operator during the prior year.
Establishment Licensee's statement shall include a copy of the tax bills for the
year and a check or xxxx for any over or under payment for said taxes.
In addition to all other payments required to be paid by Operator to
Establishment Licensee, Operator shall pay in the same manner as set forth in
the preceding paragraph all consideration, sales and use taxes, if any, levied
or imposed with respect to the Operating Agreement premises or this Operating
Agreement and all other taxes, charges, assessments and governmental
impositions, extraordinary or otherwise, of every nature and kind, which may,
during the Operating Agreement term, be assessed, levied, or imposed, upon this
Operating Agreement or the Operating Agreement premises, or any part thereof, or
any improvements thereon.
10) ALTERATIONS: All alterations, replacements and improvements made upon
the Truck Stop during the Operating Agreement, including lighting, electrical
wiring, office partitions, all heating and air conditioning, shall be done only
with the prior express written consent of Establishment Licensee and shall
become the sole and exclusive property of Establishment Licensee upon the
expiration of this Operator Agreement. However, all movable trade fixtures,
machinery and equipment installed by Operator shall remain the property of
Operator and be removed by Operator, at its expense, at the expiration of the
Operating Agreement, provided the Operating Agreement is not then in default.
The Truck Stop shall be returned to Establishment Licensee by Operator in the
condition it existed as of the Effective Date, reasonable and ordinary wear and
tear excepted. In the event Operator fails to timely remove fixtures, machinery
or equipment installed by it, as required under this Section 10, Establishment
Licensee may at its option and at Operator's expense demolish, remove and
dispose of all such items or may retain it as the Truck Stop of Establishment
Licensee without reimbursement to Operator. Operator undertakes that no lien,
privilege, or claim of any kind shall rest against the Truck Stop from any
repairs, alterations, additions or improvements, or from the construction of any
building or buildings; and agrees to furnish, at its own cost, to Establishment
Licensee, upon Establishment Licensee's request therefor, the bond of a
responsible surety company, qualified to do business in the State of Louisiana,
and
4
reasonably acceptable to Establishment Licensee, conditioned to hold
Establishment Licensee and the Truck Stop harmless against any such lien,
privilege, or claim, said bond to be for an amount equal to the estimated cost
of such construction, restoration, alterations, additions or improvements. No
consent of Establishment Licensee for Operator to make improvements or repairs
to the Truck Stop premises shall be deemed to permit Establishment Licensee's
interest to become subject to labor or material liens.
11) DELIVERY AT EXPIRATION OF OPERATING AGREEMENT: At expiration of this
Operating Agreement the Truck Stop premises must be in good order and condition
clear of all goods and broom cleaned and Operator shall make good all damages to
the premises, usual wear and tear damage by the elements excepted.
12) LIEN FOR PAYMENT OF CONSIDERATION: Establishment Licensee shall have
the rights provided for protection of interests under Louisiana law, and in
addition shall have a possessory lien on all FUEL INVENTORY located upon the
Truck Stop premises for payment of all sums due by Operator to Establishment
Licensee by reason of this Operating Agreement.
13) ASSIGNMENT: This Operating Agreement may not be assigned, partially
or fully, by Operator without prior written consent of Establishment Licensee
which consent may be withheld in its sole discretion. In the event of permitted
assignment, Operator acknowledges it shall remain fully responsible for
compliance with all terms of the Operating Agreement. Any persons or entity
receiving permitted assignment by Establishment Licensee shall assume all
obligations of Operator under this Operating Agreement. Establishment Licensee
may assign all or any portion of this Operating Agreement without the consent of
Operator.
14) INSOLVENCY, ETC. AS DEFAULT: In the event of Operator's bankruptcy,
receivership, insolvency, attachment by law of its contents, or assignment for
the benefit of creditors, or Operator's failure to maintain a going business at
the Truck Stop, Establishment Licensee may upon written notice to Operator,
declare a default in, and immediately terminate, this Operating Agreement.
15) DEFAULT BY OPERATOR: Should Operator fail to pay Royalty, Royalty
Sur-Charge or any other amounts due hereunder on the day when such amounts shall
become due and payable, and shall continue in default for a period of ten (10)
days after written notice thereof by Establishment Licensee, or should Operator
fail to comply with other obligations of this Operating Agreement, within thirty
(30) days from the mailing by Establishment Licensee of notice demanding same,
Establishment Licensee shall have the right, at Establishment Licensee's option,
to immediately terminate this agreement, and/or xxx for the damages, and/or seek
specific performance of this Operating Agreement by Operator. The foregoing
provisions are without prejudice to any remedy which might otherwise be
available under Louisiana or other applicable law for breaches of contract or to
any lien to which Establishment Licensee may be entitled.
If Operator has taken steps to cure any default not curable in twenty (20) days,
such additional
5
reasonable time as is necessary in Establishment Licensee's sole discretion to
cure such default shall be granted to Operator.
Should Establishment Licensee terminate this Operating Agreement as provided in
this article, Establishment Licensee may remove all persons and personal
property without legal process, and all claims for damages by reason of such
removal are hereby expressly waived by Operator.
Establishment Licensee's failure to strictly and promptly enforce these
conditions shall not operate as a waiver of Establishment Licensee's rights,
Establishment Licensee hereby expressly reserving the right to always enforce
prompt payment of all sums due hereunder, and/or to cancel this Operating
Agreement regardless of any indulgences or extensions previously granted.
In the event Operator defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Operating Agreement and
Establishment Licensee places the enforcement of this Operating Agreement, or
any part thereof, or the collection of any amounts due or to become due
hereunder, or recovery of the possession of the Truck Stop in the hands of an
attorney, or files suit upon same, Operator agrees to pay Establishment
Licensee's reasonable attorney's fees and the other costs and expenses of
Establishment Licensee incurred to enforce this Operating Agreement.
16) RIGHT TO SHOW SIGN: Establishment Licensee reserves the right to post
on the premises signs "For Sale", "For Lease" or "For Rent" during the 120 days
preceding the expiration of this Operating Agreement. Operator must allow
parties who have been previously authorized by Establishment Licensee to visit
the Truck Stop in view of buying during such 120 days prior to expiration, from
9 A.M. to 5 P.M.
17) RIGHT OF ENTRY: Establishment Licensee at anytime may inspect the
Truck Stop premises and make repairs and alterations, or to run pipe or electric
wire, as Establishment Licensee may deem necessary and appropriate provided
Establishment Licensee shall not inconvenience the Operator's operations of the
Truck Stop.
18) SIGNS: Unless otherwise agreed herein, Operator shall not place signs
on the Truck Stop without Establishment Licensee's prior written approval and
such approval shall not be unreasonably withheld. Upon termination of this
Operating Agreement, Operator shall remove signs, advertisements or notices
painted on or affixed to the Truck Stop and restore the place it occupied to as
similar a condition as reasonably practical in which it existed as of the
Effective Date of this Operating Agreement. Upon Operator's failure to do so,
Establishment Licensee may do so at Operator's expense.
19) CONDITION AND UPKEEP OF PREMISES: Operator will at Operator's sole expense
operate in accordance with standards specified by TEXACO, INC. and Establishment
Licensee and keep and maintain in good repair the entire Truck Stop and any
additions constructed thereon, including without limitation the loading and
parking areas exclusively used by Operator, as well as
6
interior walls, floors, ceiling, ducts, utilities, air conditioning, heating,
lighting and plumbing. In addition to the consideration provided above, Operator
shall pay each month, included in a ROYALTY SUR-CHARGE, a pro-rata share of
Establishment Licensee's expenses for general maintenance of general and truck
parking lots, grounds and landscape areas of the Truck Stop and Video Poker
casino premises, provided for below under Section 32. Cost elements include
exterior maintenance costs, exterior utility costs, outside security services,
insurance premiums and real estate taxes and assessments. Establishment Licensee
shall be responsible to maintain the roof, foundations, and outside walls (not
including doors and floors), and Operator shall be responsible for all other
areas of the Truck Stop. Where contractors' or manufacturers' warranties are
applicable and Operator advises Establishment Licensee in writing of the need
for such repair, Establishment Licensee, at its option, will enforce such
warranties for Operator's benefit or assign such warranties to Operator for
Operator to enforce. However, Establishment Licensee shall not be obliged to
make any repair unless it shall be notified in writing by Operator of the need
of such repair and shall have had a reasonable period of time to make such
repair, and shall not be liable to make any repair occasioned by Operator's acts
within the Truck Stop premises. Establishment Licensee shall not be liable for
any damage or loss in consequence of defects in the Truck Stop causing leaks,
stoppage of water, sewer or drains or any other defects about the Truck Stop
building and premises, unless it shall have failed to repair defects for which
it is responsible within a reasonable time following written demand of Operator.
Establishment Licensee shall not be liable for any loss or damage to persons or
property caused directly or indirectly by loss of electrical power. However,
Lessor will use reasonable efforts to timely restore electrical power.
It is also specifically acknowledged that safety and replacement of the plate
glass is Operator's responsibility, as well as keeping pipes from freezing in
the winter.
Operator shall immediately repair any damages caused by Operator that threaten
or weaken the structure or detract from the appearance of the Truck Stop.
Operator shall maintain neatness and cleanliness. If Operator does not correct
the damages and/or clean the Truck Stop within twenty (20) days of written
notification by Establishment Licensee, Establishment Licensee may proceed with
repairs and/or clean-up at Operator's expense.
Operator agrees not to store merchandise or leave trash outside the Truck Stop.
Trash shall be kept in containers. Should Operator be in default in the
requirements of this provision, Establishment Licensee may, after written notice
to Operator, remedy such default at Operator's expense, and such expense shall
be treated as additional consideration due under this Operating Agreement by
Operator.
20) FIRE AND CASUALTY CLAUSE: In case the Truck Stop shall be so damaged
by fire or other cause as to be rendered inoperable and necessary repairs cannot
be made within 180 days, this Operating Agreement may, at the option of
Establishment Licensee, terminate as of the time the Truck Stop premises were
rendered inoperable. However, if the damage is such that repairs can be
completed within 180 days and Establishment Licensee shall have received
insurance proceeds in an amount equal to the cost of such repairs and
Establishment Licensee can make such
7
repairs promptly the Operating Agreement will remain in force. If the loss
occurs in the last 18 months of the original term or extension thereof, either
party may terminate this Operating Agreement effective the date of the casualty
by giving the other party written notice of such election within 30 days of the
loss.
21) INSURANCE AND INDEMNITY:
A. Liability and Property Damage: Operator shall at all times during the full
term of this Operating Agreement and during the full term carry and maintain at
its own cost and expense, General Public Liability Insurance against claims for
personal injury or death and property damage occurring on the Truck Stop
premises, such insurance to afford protection to both Establishment Licensee and
Operator, including coverage for the contractual liability of Operator to
Establishment Licensee assumed hereunder, and is to be maintained in reasonable
amounts, having regard to the circumstances, and the usual practice at the time
of prudent owners and operators of comparable facilities in the local area, but
in no event in amounts less than Two Million Dollars ($2,000,000) with respect
to bodily injury or death to any person, Two Million Dollars ($2,000,000) with
respect to any one accident, and for property damage not less than Two Million
Dollars ($2,000,000). Establishment Licensee must also be named as an
"additional insured" on each policy. Operator shall timely deliver to
Establishment Licensee evidence of such insurance and all renewals thereof.
B. Fire and Extended Coverage: Establishment Licensee shall, at all times
during the term of this Operating Agreement, keep all improvements (other than
those removable installations, which by the terms of this Operating Agreement
Operator would be permitted to remove at expiration of this Operating Agreement)
in and on the Truck Stop premises insured to the full replacement value thereof
against loss by fire and extended coverage and maintain such insurance at all
times as specified herein.
Operator shall pay each month, included in a ROYALTY SUR-CHARGE, a pro-rata
share of Establishment Licensee's insurance premium attributable to the full
insurance value of the improvements covered by this Operating Agreement.
Operator shall be responsible for maintaining its own insurance on its property
and hereby agrees that Establishment Licensee shall have no liability for any
damage to Operator's property, unless such damage was as a result of the gross
negligence or willful misconduct of Establishment Licensee.
C. Placement of Insurance: All of the aforementioned policies of insurance
shall be written and maintained in responsible "A Rated"insurance companies duly
authorized and licensed to do business in and to issue policies in the State of
Louisiana. The policies providing for the protection required in subparagraph A
hereof may remain in the possession of Operator, provided, however, that
Operator furnish satisfactory evidence to Establishment Licensee or the
Establishment Licensee's mortgagee that such policy or policies fulfill the
requirements of subparagraph A.
D. Voiding Insurance: Operator will not permit the Truck Stop to be used for
any purpose which would render the insurance on the Truck Stop premises thereon
void.
8
E. Indemnity: Operator shall indemnify, save harmless and defend
Establishment Licensee from and against liability, penalties, expenses, causes
of action, suits, claims or judgments for death, injury, or damages to persons
or Truck Stop during the term of this Operating Agreement arising out of the
operation of the Truck Stop by Operator, or any of its agents, employees,
licensees or invitees, unless such death, damage, injury, claim, loss, demand,
penalty or the like is the result of or attributable to the gross negligence or
willful misconduct of Establishment Licensee or its agents or employees.
Operator shall and will, at its own expense, defend any and all suits, demands,
or any of the above mentioned claims arising out of the contracted operation of
the Truck Stop by Operator, that may be brought against Establishment Licensee,
or any of them, or in which Establishment Licensee, or any of them, may be
impleaded with others, upon any such above mentioned claim or claims, and shall
and will satisfy, pay and discharge any and all judgments that may be recovered
against Establishment Licensee, or any of them, in any such actions in which
Establishment Licensee, or any of them, may be a party defendant. Operator's
payment of defense costs shall include payment of attorney fees, consultants'
fees, court costs, administrative costs and expenses.
22) UTILITIES: All utilities on the Truck Stop premises must be
separately metered, and such shall be paid by Operator, including the cost of
heat, water, electricity, gas, garbage pickup, sewer and special fees arising
out of the use of the Truck Stop by Operator. In addition, Operator shall pay
each month, included in a ROYALTY SUR-CHARGE, a pro-rata share of Establishment
Licensee's utility costs for maintaining the general and truck parking lots,
grounds and landscape areas.
23) ATTORNEY'S FEES AND EXPENSES: Except as elsewhere provided, in the
event it becomes necessary for either party to employ an attorney to enforce
collection of the royalties, or to enforce compliance with any of the covenants
and agreements herein contained, the unsuccessful litigant shall be liable for
reasonable attorney's fees, costs and expenses incurred by the prevailing party.
24) NOTICE: Any notice provided for herein must be in writing and will
be deemed given when deposited by certified mail (regardless of when or if
received by the addressee), or when actually delivered in person to the parties
or the designated agents at the following addresses or at such other addresses
as they may from time to time direct.
Establishment Licensee: RIVER PORT TRUCK STOP, L.L.C.
---------------------- 000 Xxxxx Xxxxxxx/XX Xxxxxxx 000 at X-00
Xxxx Xxxxx, XX 00000
with a copies to: Xx. Xxx X. Xxxxxxxx
River Port Truck Stop, Inc.
000 Xxxx Xxxx Xxxxxx
Xxx Xxxxx, XX
and
9
North American Gaming & Entertainment
Corporation
c/o Xxx X. Xxxxxx, Xx.
00000 Xxxx Xxxx
Xxxxxx, Xxxxx, 00000
Operator: RVC Operations, L.L.C.
-------- c/o Xxxxxx Xxxxxxxxxxxx
000 Xxxxx Xxxxxxx/XX Xxxxxxx 000 at X-00
Xxxx Xxxxx, XX 00000
with a copy to: Xxxxxx Xxxxxxxxxxxx
00000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
25) CONDEMNATION: If the Truck Stop is subjected to condemnation
proceedings, the Operating Agreement shall terminate if all of the Truck Stop is
taken or if the portion taken is, in Establishment Licensee's sole discretion,
so extensive that the residue is inadequate for Establishment Licensee's
purposes. Whether condemnation proceedings are filed in court or negotiated,
Operator may claim for itself compensation for moving expenses and for the
taking of any removable installations which by the terms of the Operating
Agreement Operator would be permitted to remove at the expiration of this
Operating Agreement. All other compensation and awards shall be the sole
property of Establishment Licensee.
26) OPERATING AGREEMENT HOLDOVER: Should Operator remain on the premises
after expiration of this Operating Agreement, such action shall only create a
month-to-month Operating Agreement with the terms governing Royalty Percentages
remaining the same.
27) ENTIRETY OF UNDERSTANDING IN WRITTEN OPERATING AGREEMENT: It is
agreed that the entire understanding between the parties is set out in this
Operating Agreement and any addendums annexed, and that this Operating Agreement
supersedes and voids all prior proposals, letters and agreements, oral or
written. The law of Louisiana where the Truck Stop is situated, shall apply.
28) WAIVER: Failure of Establishment Licensee to declare immediately upon
occurrence thereof, or delay in taking any action in connection therewith, shall
not waive any default, but Establishment Licensee shall have the right to
declare any such default at any time; no waiver of any default shall alter
Operator's obligations under this Operating Agreement with respect to any other
existing or subsequent default.
29) BINDING ON HEIRS, ETC.: All covenants and agreements enumerated
herein shall be binding upon and inure to the benefit of both parties hereto and
their respective legal representatives, heirs, successors and assigns throughout
the life of this instrument.
10
30) SUBROGATION: Neither Establishment Licensee nor Operator shall be
liable to the other for the loss arising out of damage to or destruction of the
Truck Stop, or the building or improvements of which the Truck Stop premises are
a part thereof, when such loss is caused by any of the perils which are or could
be included within or are insured against by a standard form of fire insurance
with extended coverage, including sprinkler leakage insurance, if any. All such
claims for any and all loss, however caused, are hereby waived. Said absence of
liability shall exist whether or not the damage or destruction is caused by the
negligence of either Establishment Licensee or Operator or by their respective
agents, servants or employees. It is the intention and agreement of the parties
that the considerations reserved by this Operating Agreement have been fixed in
contemplation that each party shall fully provide its own insurance protection
at its own expense (except as expressly provided herein), and that each party
shall look to its respective insurance carriers for reimbursement of any such
loss, and further, that the insurance carriers involved shall not be entitled to
subrogation under any circumstances against any party to this Operating
Agreement. Neither Establishment Licensee nor Operator shall have any interest
or claim in the other's insurance policy or policies, or the proceeds thereof,
unless specifically covered therein as a joint assured or additional named
insured.
31) SUBORDINATE TO MORTGAGE: At the option of Establishment Licensee's
mortgagee, Operator agrees to subordinate this Operating Agreement to any
mortgage, deed of trust or incumbrance which the Establishment Licensee may have
placed, or may hereafter place, on the Truck Stop. Operator agrees to execute,
on demand, any instrument which may be deemed necessary or desirable to render
such mortgage, deed of trust or encumbrance, whenever made, superior and prior
to this Operating Agreement.
32) ROYALTY SUR-CHARGE: Operator agrees to pay a ROYALTY SUR-CHARGE to
the Establishment Licensee in addition to the consideration provided for above.
Such ROYALTY SUR-CHARGE shall be in the amounts set forth below and shall
include an allocated portion of exterior maintenance costs, exterior utility
costs, outside security services, insurance premiums and real estate taxes and
assessments. Establishment Licensee shall use its best effort to maintain the
common areas used in connection with the Truck Stop in a safe and clean
condition. Establishment Licensee shall be responsible to maintain the roof,
foundations, and outside walls (not including doors and floors). Common areas
include, but are not be limited to, general and truck parking areas, access
roads and facilities in or at the Truck Stop premises including driveways,
loading areas, sidewalks, ramps, landscaped and planting areas, lighting
facilities, signs and other areas and improvements for the general use, in
common, or by Operator, its officers, agents, employees and customers.
Operator shall pay each month a pro-rata share, established at 25%, of
Establishment Licensee's exterior maintenance costs on the general and truck
parking lots and grounds, including paving, electrical fixtures and wiring,
plumbing fixtures and lines, and landscape plant material and irrigation.
Operator shall pay each month a pro-rata share, established at 25%, of
Establishment Licensee's
11
exterior utility costs on the general and truck parking lots and grounds,
including paving, electrical fixtures and wiring, plumbing fixtures and lines,
and landscape plant material and irrigation.
Operator shall pay each month a pro-rata share, established at 25%, of
Establishment Licensee's outside security services on the general and truck
parking lots and grounds, access roads, facilities in or at the premises,
including driveways, loading areas, sidewalks and ramps.
Operator shall pay each month an allocated portion of Establishment Licensee's
insurance premiums attributable to the full insurance value of the Truck Stop
improvements covered by this Operating Agreement. This allocated portion will
be defined by the ratio of specific Truck Stop improvements to the total
insurance premium for the Truck Stop and Video Poker Complex.
Operator shall pay each month an allocated portion of the real estate taxes and
assessments, general and special, levied or imposed, with respect to said land
and buildings, including any additions to the Truck Stop, which for the purposes
hereof shall be deemed to include related parking facilities and all the
improvements covered by this Operating Agreement. This allocated portion will
be defined by the ratio of specific Truck Stop improvements to the total
insurance premium for the Truck Stop and Video Poker Complex.
Operator shall pay each month, an estimated one-twelfth (1/12) of said ROYALTY
SUR-CHARGE as estimated by Establishment Licensee.
In January of each year, Establishment Licensee shall furnish Operator with a
statement setting forth the amount of the actual expenses incurred in the prior
year and the formula for determining the allocated ROYALTY SUR-CHARGE for the
current year. Such signed statement shall include a copy of the common area
maintenance expenses for the past year and a check or xxxx for any over or under
payment for said common maintenance charges.
Establishment Licensee shall have the right from time to time to establish,
modify and enforce reasonable rules and regulations with respect to all such
facilities and areas; to enhance security and safety, to change traffic access,
provided the Truck Stop is adequately served by the new access; to restrict
parking by Operator, its officers, agents and employees to designated areas; and
to do and perform such other acts as Establishment Licensee shall, in the use of
its business judgment, determine to be advisable with a view to the improvement
of the convenience and use thereof by Operator, its officers, agents, employees
and customers.
33) OPERATING AGREEMENT RECORDATION: All parties agree not to record this
Operating Agreement, but a memorandum of the Operating Agreement may be
recorded.
34) GROSS DEFAULT: If Operator defaults under that certain Convenience
Store and Restaurant Sub-Lease between Operator (Lessee) and Establishment
Licensee (Lessor) of even date herewith, Establishment Licensee may declare a
default under this Operating Agreement and terminate this Operating Agreement or
exercise such other rights as it may have hereunder or under
12
applicable law for such default. In the event Establishment Licensee defaults
under this Operating Agreement, Lessee may pursue all rights and remedies
afforded under this Operating Agreement, and under the Convenience Store and
Restaurant Sub-Lease referred to above, and under any applicable laws or
regulations.
35) RIGHT OF FIRST REFUSAL TO PURCHASE THE PREMISES: Notwithstanding any
provision of this Fuel Service and Truck Stop Operating Agreement or that
certain Convenience Store and Restaurant Sub-Lease (the "Lease") between
Operator and Establishment Licensee of even date herewith to the contrary,
Establishment Licensee irrevocably assigns to Operator any and all of
Establishment Licensee's rights of first refusal to purchase the premises in
accordance with Article XVI, Sections 16.1, 16.2 and 16.3 of that certain Lease
Agreement between S. W. Day and T. Xxx Xxxxxxxx; and River Port Truck Stop,
Inc., dated January 17, 1997 and that certain Assignment and Assumption of Lease
from River Port Truck Stop, Inc. to River Port Truck Stop, L.L.C., dated May 19,
1998 (collectively referred to as the "Base Lease"). It is the parties'
intention that this right of first refusal to Operator shall survive the terms
and conditions of this Fuel Service and Truck Stop Operating Agreement and the
Lease.
This Operating Agreement is made and signed in multiple originals, with the
Effective Date as defined above.
IN WITNESS WHEREOF, Establishment Licensee hereby signs at _______________
___________________, Louisiana on this ______ day of _________________________,
199___, after due reading of the whole.
WITNESSES: Establishment Licensee:
RIVER PORT TRUCK STOP, L.L.C.
By:
------------------------------ ------------------------------
XXX X. XXXXXXXX
Its: Authorized Signing Member
------------------------------
IN WITNESS WHEREOF, Operator hereby signs at ___________________________,
in the State of ______________________ on this _______ day of _______________,
19 ___, after
13
due reading of the whole.
WITNESSES: Operator:
RVC Operations, L.L.C.
By:
------------------------------ ------------------------------
XXXXXX XXXXXXXXXXXX
Its: Manager
------------------------------ -------
CERTIFICATION
-------------
The undersigned hereby certify that they are the duly elected and qualified
manager of RVC Operations, L.L.C. and the duly authorized signing member of
RIVER PORT TRUCK STOP, L.L.C., the entities executing this document, and as such
have custody of the company minutes of the meeting of the members of the limited
liability company, as applicable, duly called and constituted, a quorum being
present, authorizing, directing and approving the above named manager and member
to execute and deliver this agreement binding such entities to the obligations
herein undertaken.
RVC Operations, L.L.C. (Lessee)
------------------------------
Manager
RIVER PORT TRUCK STOP, L.L.C. (Lessor)
------------------------------
14
