Exhibit 10.33
NATIONAL AUTO/TRUCKSTOPS INC.
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AUTO/TRUCKSTOP LEASE
Location # Date: , 19
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LESSOR: NATIONAL AUTO/TRUCKSTOPS, INC.
A DELAWARE CORPORATION
Street Address 0000 XXXX XXXX XXXX
Xxxx xxx Xxxxx XXXXXXXXXX, XXXXXXXX Zip Code 60196-1088
LESSEE:
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PROPERTY:
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See Exhibits A-I and A-II for leased property description.
A subject matter index will be found at the end of the Lease.
LESSOR LESSEE
National Auto/Truckstops, Inc.
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By By
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Name: Name:
Title: Title:
1
LEASE AGREEMENT
Lease Agreement (the "Agreement" or the "Lease"), dated as of
, 199 , by and between National Auto/Truckstops, Inc., a Delaware
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corporation (the "Company"), and , a corporation
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("Lessee").
W I T N E S S E T H:
WHEREAS, the Company and Lessee have entered into a Franchise
Agreement of even date herewith (as the same may hereafter be amended, the
"Franchise Agreement"; all terms used and not defined herein shall have the
meanings set forth in the Franchise Agreement) which, among other things,
defines the franchise relationship between the Company and Lessee in connection
with the Company's A/TS Network; and
WHEREAS, Lessee is obligated under the Franchise Agreement to enter
into this Lease, pursuant to which, among other things, (i) the Company agrees
to lease and demise the Leased Premises (as defined herein) to Lessee and (ii)
Lessee agrees to take and hire from the Company the Leased Premises, each on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants and agreements set forth herein, the parties hereby agree
as follows:
1. PROPERTY. The Company leases to Lessee and Lessee leases from the
Company the land located in the County of , State of ,
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described in Exhibit A-I attached hereto and made a part hereof, together with
the buildings, improvements, fixtures, and equipment listed in Exhibit A-II
attached hereto and made a part hereof, said land and buildings, improvements,
fixtures, and equipment being collectively referred to herein as the "Leased
Premises."
2. TERM. (a) The term of the Lease commences , 19 ,
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and expires , 19 , (the "Initial Term) subject to the renewal terms
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set forth in this Paragraph 2. The Lease ends automatically and without notice
on the expiration date.
(b) Should the Lessee receive the Company's permission pursuant to
Paragraph 8 to improve the facility or any portion thereof, or make any
additions requiring large capital expendi tures, where the term of this Lease is
a factor determining
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Lessee's ability to raise funds or justify the expenditure to itself, the
Company will, at its option, enter into negotiations with Lessee to extend the
term of this Lease.
(c) Lessee shall have the right to renew the Lease at the expiration
of the Initial Term for five (5) additional suc cessive terms of three (3) years
each ("Renewal Term"), provided that all of the following conditions have been
fulfilled:
(i) Lessee has during the Initial Term complied with all the
provisions of this Lease and during any Renewal Term complied with the
provisions of this Lease;
(ii) Lessee is not in default of the provisions
of Paragraph 14 of this Lease;
(iii) Lessee has given notice of renewal to the
Company as provided in Paragraph 14 herein;
(iv) Lessee has satisfied all monetary obliga tions owed by
Lessee to the Company and the Company's Affiliates and has timely met these
obligations throughout the term of this Lease;
(v) Lessee has complied with the Company's then-
current qualification and training requirements;
(vi) Lessee has executed a general release, in the
then-current form prescribed by the Company, of any and all Claims against the
Company and its Affiliates, and their respec tive officers, directors, agents,
stockholders and employees; and
(vii) Lessee simultaneously renews the Franchise Relationship
in accordance with the terms and provisions of the Franchise Agreement.
(d) The Company may terminate or not renew this Agreement by written
notice to Lessee, as provided in Paragraph 14 herein.
(e) Notwithstanding the foregoing or any other provision hereof, the
Lease shall end automatically and without notice on the date of expiration or
termination of the Franchise Agreement.
3. RENT. Lessee shall pay the Company rentals for
the Leased Premises without offset or deduction, and the Company
shall make certain payments to Lessee, as stated in the attached
Exhibit B attached hereto and made a part hereof. Lessee shall
pay all rentals and all other sums Lessee legally owes the
Company in accordance with the Company's credit policies. No
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payment made to the Company by check or other instrument shall contain a
restrictive endorsement of any kind. A restrictive endorsement shall have no
legal effect even if the document restrictively endorsed is processed for
payment and the Company retains the proceeds.
4. RECORDS AND AUDIT. [INTENTIONALLY OMITTED.]
5. SERVICES AND USES. Lessee agrees to use the Leased Premises to
operate an auto/truckstop as part of the A/TS Network (an "Auto/Truckstop").
Lessee agrees to operate the Auto/Truckstop in a manner that will assure (i)
that customers receive quality merchandise and courteous and efficient service
in a clean and orderly business establishment; (ii) a profit to Lessee; and
(iii) the reasonable return to the Company on its investment in the Leased
Premises. Lessee shall comply with all requirements set forth in this Lease, the
Confidential Operations Manual and other written policies supplied to Lessee by
the Company. All references herein to this Lease shall include all such
mandatory specifications, standards and operating procedures and rules. Lessee
shall comply with the entire set of specifications and standards for the A/TS
Network including, but not limited to, the provisions of this Paragraph 5.
Lessee's operation shall include the following minimum obligations:
(a) Sell merchandise and service with care, courtesy, and
regard for customer satis faction. This will be
determined by comment cards and on-site surveys received
by the Company.
The Company has the right to enter the Leased Premises
to conduct, but is not obligated to conduct, on-site
surveys and leave comment cards. Should the Company
receive negative comments dealing with the same issue in
any 30 day period, the Lessee will be expected to take
action to correct the situation which generated the
comments.
(b) Take prompt action to respond to or correct
all complaints received by the Company
concerning Lessee's operation of, or
condition of, the Leased Premises or conduct
of any employee of the Lessee. A written
reply must be made to the Company within 14
days outlining Lessee's actions or plans to
resolve.
(c) Follow such procedures or take such action as
the Company may from time to time require to
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maintain the appearance and efficient opera tion of the
Leased Premises and to meet or exceed the Company's
annually published minimum acceptable Five Star score.
If at any time in the Company's judgment the general
state of repair or appearance of the Leased Premises or
its equipment, fixtures, signs of decor does not meet
the Company's standards, the Company shall so notify
Lessee, specifying the action to be taken by the Company
to correct such deficiency. Failure to correct such
deficiency is a material default of this Agreement and
grounds for termination of this Agreement subject to the
provisions of Paragraph 14 herein.
Lessee acknowledges that it has received a copy of the
Five Star program, has reviewed it and understands the
program. The terms of said program are incorporated
herein by reference.
(d) Devote full-time and business expertise to
the operation of the Leased Premises. The
Manager (as defined in Paragraph 12 herein),
must be at the Leased Premises more than
thirty (30) hours each seven (7) day week,
devote more than four (4) hours of time
between the hours of 8:00 a.m. and 8:00 p.m.
each day, Monday through Friday, and not be
absent more than thirty (30) days in any
calendar year.
(e) Operate the Leased Premises and any
restaurant contained thereon so as not to
pose a threat or danger to public health or
safety or the environment. Mail a copy of
each and every Health Inspection Report
prepared for the Leased Premises and any
restaurant contained thereon by the local,
county, or state governments to:
National Auto/Truckstops, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: C. Xxxxxxx Xxxxxxx
(f) Provide reasonable security at the parking
lot of the Leased Premises for vehicles and
drivers, and exert a reasonable effort to
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maintain an absence of outside elements that negatively
affect the image of the Auto/ Truckstop, the Leased
Premises, the Xxxx chised Business, the Branded Fuel or
the Branded Products. Specifically, "outside elements"
refers to prostitutes, gamblers, drug dealers, and
stolen goods dealers, but is not limited to same
("Outside Elements").
(g) Provide, or have made outside arrangements for
providing, emergency service for passenger cars
including tire service, road towing, belt replacement,
and light replace ment, but not to be limited to same.
(h) Keep the Leased Premises open for business
24 hours each day, including the diesel &
gasoline islands, garage, store, and restau
rant, but not limited to same. Lessee's
closing the Leased Premises or any part
thereof, shall constitute abandonment by
Lessee and shall be a material breach of this
Lease.
(i) Not engage in dishonest, fraudulent, or scare
selling practices.
(j) Perform all services in a good workmanlike
manner.
(k) Maintain a complete inventory of merchandise
to satisfy the reasonable demands of
customers.
(l) Operate the Leased Premises in a clean, safe and
healthful manner that will assure that customers receive
quality merchandise and courteous and efficient service,
which shall include the following minimum obligations:
(i) Operate or cause the Manager to at all times
operate the Leased Premises in compliance with the
standards prescribed in this Lease.
(ii) Provide a sufficient number of trained, courteous,
and neat personnel who can personally communicate
with customers by understanding, writing and
speaking English to operate the Leased Premises in
an efficient and organized manner.
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(m) [INTENTIONALLY OMITTED.]
(n) Comply with the requirements of any condi
tional use permit or other approval ("per
mit") covering the construction, maintenance,
and/or operation of the Leased Premises. If
the Leased Premises are subject to a permit,
a copy shall be delivered to Lessee and
Lessee shall acknowledge receipt of the copy
on a form provided by the Company.
(o) Secure and maintain in force, at its expense,
all required licenses, permits and certifi-
xxxxx relating to the operation of the Leased
Premises, and operate the Leased Premises in
full compliance with all applicable federal,
state and local laws, ordinances and
regulations, including, without limitation,
all such laws, ordinances, and regulations
relating to the dispensing of food products,
occupational hazards and health, general
liability regulations relating to the
dispensing of food products, occupational
hazards and health, general liability and
pollution liability insurance requirements,
consumer protection, environmental protec
tion, underground storage facilities and
dispensing of fuel, trade regulation,
workers' compensation, unemployment insurance
and withholding and payment of federal and
state income taxes and social security taxes,
and sales, use and property taxes. Further,
throughout the term of this Lease, Lessee
shall cause the Leased Premises to be in full
and strict compliance with the Americans with
Disabilities Act, as amended.
(p) Designate a qualified full-time shift manager
for each shift established by Lessee.
(q) Lessee shall have on staff at all times
during regular business hours a qualified
mechanic experienced in truck service to
provide prompt, courteous and workmanlike
service, and to otherwise fulfill Lessee's
responsibilities under this Lease and the
Franchise Agreement. Such mechanic shall
meet the requirements set forth in the
Confidential Operations Manual.
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(r) Lessee shall notify the Company in writing
within five (5) days of the commencement of
any action, suit, or proceeding, and of the
issuance of any order, writ, injunction,
award, or decree of any court, agency, or
other governmental instrumentality, which may
adversely affect the operation or financial
condition of the Franchised Business or the
Leased Premises.
(s) At any full service truckstop facility, Lessee shall
maintain a minimum of fifty (50) paved truck spaces.
6. PROHIBITED USES. The Leased Premises shall be
utilized as an Auto/Truckstop and for no other purpose. In
addition, Lessee shall not:
(a) Obstruct any entrance, exit, or pump island, or
otherwise restrict access to the Leased Premises, or any
part thereof, or block delivery carrier's access to
storage tank fill pipes.
(b) Subject to laws, ordinances, and regulations,
display signs except those usual and custo
xxxx to advertise products and services
offered for sale by Lessee from or at the
Leased Premises; and not install, affix, or
paint signs on any building or part of Leased
Premises leased by the Company to Lessee,
without the Company's prior written approval.
(c) [INTENTIONALLY OMITTED.]
(d) Store or sell illegal drugs or substances, and any
related paraphernalia, or permit the same to be used or
consumed at the Leased Premises.
(e) Discharge or permit the discharge of petroleum products
or other products or materials onto the Leased Premises
or adjacent properties.
(f) Place or install amusement, music, or vending machines,
or telephones at locations that interfere with, or
restrict, the safe and free flow of vehicles and
pedestrian traffic on the Leased Premises.
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(g) Create or permit waste at the Leased Premises, or any
part thereof, or allow or condone any activity on the
Leased Premises, or any part thereof, that shall
constitute a nuisance.
Lessee understands and acknowledges that uniformity of standards, products and
services is essential to the A/TS Network. To that end, the Company reserves the
right to reject any category of product or services offered for sale at the
Leased Premises. Should Lessee elect to offer and sell additional product or
service categories to customers at the Leased Premises, the Company shall not
unreasonably withhold its approval of any such category of product or service.
In addition:
(i) Lessee shall immediately cease offering for sale
or selling any product or service if the Company,
in its sole discretion, deems such product or
service to be detrimental to the Marks or the
image of the A/TS Network.
(ii) Lessee is prohibited from displaying,
offering and selling any alcoholic
beverages, packaged or otherwise, any
condom vending machines (unless required
by law) and any sexual or pornographic
materials (as determined by the Company
in its sole discretion), including,
without limitation, books, magazines,
videotapes, cassettes, calendars,
novelty and related items. The Company
reserves the right, in its sole
discretion, to expand the categories of
products and services which Lessee is
prohibited from offering or selling from
the Leased Premises.
7. OPERATING EXPENSES. Lessee shall pay all charges and expenses
connected with the operation of the Leased Premises, including license, permit,
and inspection fees; expenses incurred for testing for motor fuel shortages if
due to Lessee negligence, unless required by law, ordinance, or regulation; the
calibration of dispensing equipment; the registration of storage tanks except
those required by governmental regulations; occupation and license taxes, water,
sewer, gas, telephone, electricity, and power charges assessed or charged on or
against the Leased Premises, Lessee's use or occupancy thereof, or the business
conducted thereon. Lessee shall have all meters and accounts for water, sewer,
gas, telephone, electricity, power, and other utilities transferred to Lessee's
name. If Lessee fails or
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refuses to make timely payment of any charge, expense, and/or tax, the Company
may, but is not obligated to, make payment for the account of Lessee, and the
amount paid by the Company shall be additional rental and shall be due and
payable by Lessee on demand of the Company.
8. ALTERATIONS. Subject to the provisions of Xxxxxxxxx 0, Xxxxxx
shall not make or permit anyone to make any modifications in or to the Leased
Premises of a permanent nature, including but not limited to permanent
improvements, alterations, decorations, or additions, structural or otherwise,
in or to the Leased Premises without first obtaining the written consent of the
Company. All improvements, alterations, decorations, or additions made by Lessee
shall be completed in a good and workmanlike manner in accordance with all
applicable laws and requirements, and Lessee shall defend, indemnify, and hold
the Company harmless from and against any and all costs, expenses, claims,
liens, and damages to person or property resulting from the making of any such
improvements, alterations, decorations, or additions in or to the Leased
Premises.
Lessee shall not do or suffer anything to be done whereby the Leased
Premises may be encumbered by a mechanic's lien or liens. If, however, any
mechanic's lien is filed against the Leased Premises, Lessee shall discharge the
same of record within ten days after the date of filing. If Lessee fails to
discharge any such lien as provided herein, such failure shall be a default of
this Lease.
The Company shall not be liable for any labor or materials to be
furnished to Lessee upon credit, and no mechanic's or other lien for any such
labor or materials shall attach to or affect the reversionary or other estate or
interest of the Company in and to the Leased Premises.
9. MAINTENANCE AND REPAIRS. Lessee shall, at his expense, clean,
maintain, repair, and make replacements to the Leased Premises as set forth in
Exhibit C attached hereto and made a part hereof. If Lessee fails, or refuses,
to perform any obligations set forth in Exhibit C, the Company may do so, and
Lessee shall reimburse the cost to the Company on demand.
Lessee shall employ, on a full-time basis, an individual qualified
to accomplish Lessee's obligations set forth in Exhibit C. This individual's
primary duties shall be limited to maintenance responsibilities as defined.
The Company is responsible for the replacements not required of
Lessee and imposed upon the Company by Exhibit C, except for damage to or
destruction of the Leased Premises as set forth below. Notwithstanding the
Company's obligations set forth
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in Exhibit C, Lessee has the primary obligation to keep the Leased Premises safe
for all persons in or to the Leased Premises. Therefore, Lessee shall undertake
interim repairs or maintenance to keep the Leased Premises safe for all persons,
until such time as Lessee notifies the Company of the unsafe condition and the
Company performs its required obligations within a reasonable time after notice.
If the Leased Premises, or any part thereof, is damaged or
destroyed, Lessee shall advise the Company immediately of such damage or
destruction by the fastest means possible, but in no event later than 24 hours
after the damage or destruction occurs, and shall confirm the damage or
destruction within 7 days of its occurrence by completing and sending the
Company its Property/Environmental Loss Report. Lessee is responsible for damage
to or destruction of the Leased Premises, or any part thereof, not caused by the
Company, its employees, agents, or contractors, or Acts of God. "Acts of God"
for the purposes of this Paragraph 9 shall include only damage or destruction
caused by wind, rain, hail, floods, ice, snow, earthquakes, volcanoes, thunder,
or lightning; fire is not an Act of God, other than caused by lightning.
The Company waives right of recovery against Lessee for damage
covered by All Risk Policy required under subparagraph (f)(4) of Paragraph 13
(indemnity and insurance) of this Lease to Leased Premises in excess of $400,000
in any one occurrence.
10. TRANSFERABILITY OF INTEREST.
(a) This Lease and all rights hereunder can be assigned and
transferred by the Company and, if so, shall be binding
upon and inure to the benefit of the Company's
successors and assigns.
(b) This Lease and all rights hereunder may be assigned and
transferred by Lessee and, if so, shall be binding upon
and inure to the benefit of Lessee's successors and
assigns, subject to the following conditions and
requirements, and the Company's right of first refusal
as set forth herein:
(i) Lessee may not sell, assign (including, but not
limited to, assignments by operation of law) or
transfer (collectively, "Assign") this Lease
without the Company's prior written consent. The
Company has an absolute and unqualified right to
withhold
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consent to such proposed Assignments. Any attempt
by Lessee to Assign this Lease without the
Company's prior written consent shall be void and
of no force and effect. The sale, transfer,
transfer by operation of law, or other disposition
of Lessee's interest, or any part thereof, in the
Lease, or any Person's ownership or other interest
in Lessee, if Lessee is a corporation, partnership
or other business entity, shall be an assignment
requiring the Company's prior written consent.
Lessee's written request for the Company's
approval of any assignment must be received by the
Company not less than ninety (90) days prior the
effective date of such requested assignment.
(ii) Notwithstanding the foregoing, Lessee
may Assign this Lease without the
Company's consent to an immediate family
member of (i) Lessee, if Lessee is a
natural person, or (ii) the Manager;
PROVIDED that, in the Company's
reasonable judgment, such family member
is sufficiently qualified and trained
("Qualified Immediate Family Member").
(iii) The Company shall have the preferential right to
meet the bona fide offer of any proposed assignee;
such right to be exercised by the Company within
sixty (60) days following the date the Company
receives a copy of Lessee's written request for
the Company's approval of any assignment. Lessee
shall include in such written request for the
Company's approval of any assignment. Lessee shall
include in such written request the name and
address of the proposed assignee and the price,
terms, and conditions contained in the bona fide
offer. The Company's failure to exercise this
preferential right shall not terminate this
Agreement or the preferential right or release
Lessee from any of its obligations under this
Lease.
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(c) If the Lessee proposes to sell, transfer,
assign or sublet this Lease, the Company will
perform a Five Star Appearance inspection of
the Leased Premises to determine necessary
corrections to be made to bring the Leased
Premises up to a Five Star Appearance
inspection score equal to or greater than the
Company's annually published minimum accept
able score. The Company will also perform an
engineering and maintenance inspection and,
if deemed necessary by the Company, an
environmental inspection, of the Leased
Premises to determine what actions are
necessary to bring the Lessee into compliance
with all of the provisions of Paragraph 9 and
Exhibit C hereof. The results of the fore
going inspections will be made in writing to
Lessee and corrections made before sale,
assignment, transfer or subletting is
approved.
(d) Notwithstanding any provision of the fore
going subparagraphs (a) through (c), any
attempted assignment of this Lease (including
an assignment by operation of law) shall be
void and of no force and effect unless the
Franchise Relationship is also transferred to
the assignee in accordance with the pro
visions of the Franchise Agreement.
11. UNDERLYING LEASE. (If the Company leases the Leased Premises or
part of the Leased Premises from others, this paragraph will be completed.) The
Company leases the Leased Premises by virtue of an underlying lease dated
_______ for a term that expires on _______. The Company is under no obligation
to extend or renew such underlying lease. Lessee acknowledges and confirms that
it was notified in writing by the Company of the facts set forth in this
Paragraph prior to the execution of this Lease.
12. OPERATION BY LESSEE. The Company's normal business practice and
procedure is to enter into Auto/TruckStop leases with individuals only, to
assure that the Company will receive the benefit of the business expertise and
management of the named individual. If Lessee is an individual, any attempt by
him to operate the Leased Premises through a corporation shall not relieve him
of, and the Company shall require him to perform, his obligations under this
Lease, unless and until the Company approves the assignment of this Lease to the
corporation.
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The Company may enter into Auto/TruckStop leases with corporations
or other entities, but only upon the assurance of the entity that an individual
acceptable to the Company shall direct the management and operation of the
Auto/TruckStop. If the Lessee is a corporation or any other entity, it agrees
that the day-to-day management and operation of the Leased Premises shall be
directed by ________________________ ("Manager"). If the Lessee is an
individual, then Lessee shall be the Manager.
If the Manager as named is not the Lessee, and if, in the Company's
opinion, the operation of the Leased Premises under the Manager is not
equivalent to, or better than the operation under Lessee's operation, the
Company shall so advise Lessee and the Lessee shall name a new Manager.
If, during the term of this Lease, Manager dies or becomes
physically handicapped and cannot continue the direct day-to-day management and
operation of the Leased Premises, this Lease shall not terminate, but Lessee
shall name a new Manager, in writing, delivered to the Company not more than 30
days following the death or incapacity of Manager.
13. INDEMNITY AND INSURANCE.
(a) Lessee agrees to indemnify, defend, protect
and hold harmless the Company (and its
directors, officers, employees, agents,
Affiliates, designees, representatives,
stockholders, successors and assigns
(collectively, "Indemnified Parties")) from
and against all losses, liens, liabilities,
damages, deficiencies, demands, claims,
actions, judgments or causes of action,
assessments, costs or expenses (including,
without limitation, interest, penalties and
reasonable attorneys', consultants, and other
experts' fees and disbursements) ("Losses")
based upon, arising out of or otherwise in
respect of the Franchised Business and
Lessee's use of the Leased Premises; PRO-
VIDED, HOWEVER, Lessee shall not be required
to indemnify, defend and hold harmless the
Indemnified Parties from and against any
Losses, arising out of the Gross Negligence
("Gross Negligence") or Wilful Misconduct
("Wilful Misconduct") of the Company and/or
any other Indemnified Party. For the purpose
of this Paragraph 13, the term "Gross Negli
gence" shall mean a conscious and voluntary
act or omission which is in reckless dis
regard of the rights or property of another
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and the term "Wilful Misconduct" shall mean intentional,
purposeful conduct of an indem nified Party but does not
include instances where an Indemnified Party is strictly
liable for breach of any warranty. IT IS AGREED THAT
NEITHER LESSEE NOR ITS INSURANCE CARRIER SHALL HAVE THE
POWER OR AUTHORITY UNDER THIS LEASE TO MAKE A
DETERMINATION AS TO WHETHER AN INDEMNIFIED PARTY CAUSED
LIABILITIES, LOSSES, CLAIMS, LIENS OR DEMANDS AS THE
RESULT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT. IF
THERE IS A DISAGREEMENT BETWEEN LESSEE, ITS INSURANCE
CARRIER AND THE INDEMNIFIED PARTIES AS TO WHETHER OR NOT
THE ACTIONS OF AN INDEMNIFIED PARTY(IES) MEET THE TEST
OF GROSS NEGLIGENCE OR WILFUL MISCON DUCT, SUCH A
DISPUTE SHALL BE SUBMITTED FOR RESOLUTION TO A COURT
HAVING JURISDICTION OVER SUCH DISPUTES.
Promptly after receipt by any Indemnified Party of
notice of any demand, claim or circumstance which, with
the lapse of time, would or might give rise to a claim
or the commencement (or threatened commencement) of any
action, proceeding or investigation ("Asserted
Liability") that may result in a Loss, the Indemnified
Party shall give notice thereof ("Claims Notice") to
Lessee. The Claims Notice shall describe the Asserted
Liability in reasonable detail and shall indicate the
amount (estimated, if necessary and to the extent
feasible) of the Loss that has been or may be suffered
by an Indemnified Party.
Lessee may elect within thirty (30) days of receipt of
the Claims Notice to compromise or defend, at its own
expense and by its own counsel, any Asserted Liability
if Lessee acknowledges to such Indemnified Party
Lessee's obligation to fully indemnify such party with
respect to such Asserted Liabi lity, PROVIDED, HOWEVER,
that a condition to any settlement by Lessee shall be a
complete and unconditional release of the Indemnified
Party with respect to such claim. If Lessee elects to
compromise or defend such Asserted Liability as provided
in this Para graph 23.04., the Indemnified Party shall
cooperate, at the expense of Lessee, in the
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compromise or defense of such Asserted Liability. The
Indemnified Party may select its own legal counsel to
participate in such compromise or defense, at Lessee's
expense, to the extent such Indemnified Party, or its
counsel, reasonably believes that a conflict of interest
exists between Lessee and such Indemnified Party.
Lessee will be reimbursed reasonable attorneys' fees
incurred by Lessee in a court-sought resolution if the
Company or any other Indemnified Party is found to be
Grossly Negligent or guilty of Wilful Misconduct. If
Lessee elects not to compromise or defend the Asserted
Liability, fails to notify the Indemnified Party of its
election as herein provided or contests its obligation
to indem nify under this Agreement, the Indemnified
Party may pay, compromise or defend such Asserted
Liability; PROVIDED, HOWEVER, that such payment,
compromise or defense shall in no way relieve Lessee of
its indemnification responsibilities pursuant to this
Lease.
(b) Without limiting or detracting from the
indemnity provision above or any other
provision of this Lease, Lessee shall comply
with the applicable federal, state and local
laws, rules, regulations, orders and ordi
nances concerning pollution and protection of
the environment, with special attention to
the regulations governing the storage,
dispensing, and sale of unleaded gasoline;
shall procure and maintain all permits and
licenses required thereunder; and shall
defend, indemnify, and hold harmless the
Indemnified Parties from and against any and
all penalties, interest, costs, expenses,
claims, judgments, and orders with respect to
such laws, ordinances, rules, orders, and
regulations, except those determined to have
been caused by the Gross Negligence or Wilful
Misconduct of an Indemnified Party.
(c) Because Lessee has the day-to-day occupation
and control of the business at the Leased
Premises, Lessee shall:
(i) Immediately clean up and properly
dispose of all contaminants, pollutants,
16
toxic substances, and hazardous sub stances which
are dumped, spilled, or otherwise deposited, or
which appear anywhere on, or which originates
from, the Leased Premises from whatever cause or
source. All such cleanup and dis posal actions
shall be in compliance with all applicable laws,
regulations and ordinances, and the requirements
of governmental agencies, relating to pollution or
protection of the environ ment. If the matter
cleaned up and disposed of is determined after
non-appealable final judgment to have been
deposited through the Gross Negligence or Wilful
Misconduct of an Indemnified Party, the Company
shall reimburse Lessee the reasonable clean-up and
disposal costs.
(ii) Comply with the Occupational Safety and
Health Act and rules, orders, and regu
lations issued and promulgated there
under applicable to Lessee's operation
of the Leased Premises. Lessee shall
also defend, indemnify, and hold harm
less the Indemnified Parties from and
against any and all penalties, interest,
cost, expenses, claims, judgments, and
orders arising out of or incident to
Lessee's noncompliance with said Act and
the rules, orders, and regulations
issued and promulgated thereunder
applicable to Lessee's operation of the
Leased Premises.
(iii) Comply with the Americans with Dis abilities Act
and rules, orders, and regulations issued and
promulgated thereunder applicable to Lessee's
operation of the Leased Premises. Lessee shall
also defend, indemnify, and hold harmless the
Indemnified Parties from and against any and all
penalties, interest, cost, expenses, claims, judg
ments, and orders arising out of or incident to
Lessee's noncompliance with said Act and the
rules, orders, and regulations issued and
promulgated thereunder applicable to Lessee's
operation of the Leased Premises.
17
(iv) Immediately advise the Company in
writing of defects in or deterioration
of storage tanks, submerged pumps,
and/or piping listed on Exhibit C, for
which the Company has replacement
responsibility. In this regard, storage
tanks, submerged pumps, and/or piping at
the Leased Premises may result in major
environmental and property damage. One
of the recommended methods used to warn
of a potential leak is the implementa
tion and adherence to a Motor Fuel
inventory program that includes a daily
stick measurement of the volume of Motor
Fuel in storage and recording of the
volume of Motor Fuel received and sold.
Lessee agrees to implement and adhere to
a daily inventory plan incorporating the
above described elements. Lessee shall
immediately notify the Company when a
loss of Motor Fuel is equal to or
greater than 1000 gallons reflected in
its daily inventory system, but not
later than the next day, by the fastest
means available. This loss may be
considered a paper shortage of Motor
Fuel even though the Motor Fuel may be
reflecting an overage. Lessee should
use his or its best judgment and past
historical data in determining losses
during periods of fuel expansion or
shrinkage during storage. If Lessee's
first notification to the Company of a
loss is verbal, Lessee shall confirm
such notice in writing immediately after
giving the verbal notice. The Company
shall have the sole right to determine
what tests are required to confirm any
leaks and what corrective measures are
to be taken. If Lessee keeps a daily
inventory system and notifies the
Company immediately upon detecting a
Motor Fuel loss, Lessee shall be
released from its obligation to defend,
indemnify, and hold the Indemnified
Parties harmless from any claims, costs,
fines, penalties, and damages related to
a leak in the underground tanks, sub
merged pumps, or piping, except for any
leak arising from the negligent or
willful acts or omissions of Lessee, its
18
contractors, agents, or employees. If Lessee, its
employees or agents is negligent, or if Lessee
does not maintain a daily inventory system and/or
fails to immediately advise the Company of an
indicated loss, Lessee shall be responsible for
and shall indemnify, defend, and hold the
Indemnified Parties harmless from, any and all
claims, costs, fines, penalties, or damages of
every nature related to any leak not detected
and/or reported. Such failure to maintain an
inventory system or immediately notify the Company
of an indicated loss or water contamination shall
be grounds for termination or nonrenewal of this
Lease.
(d) Indemnified Parties do not assume any
liability whatsoever for acts, errors or
omissions of those with whom Lessee may
contract, regardless of the purpose. Lessee
shall hold harmless and indemnify Indemnified
Parties for all losses and expenses which may
arise out of any acts, errors or omissions of
these third parties.
(e) The Company shall not, by virtue of any approvals,
advice or services provided to Lessee, assume
responsibility or liability to Lessee or any third
parties to which the Company would not otherwise be
subject.
(f) With respect to operations performed under or
incident to this Lease, Lessee shall obtain
and maintain insurance acceptable to the
Company which is primary as to any other
existing, valid, and collectible insurance
and, except for Workers' Compensation and
Employers' Liability Insurance, names the
Company as Additional Insured with a Cross
Liability Clause. Such insurance shall
include (except as different coverages and
policy limits may reasonably be specified for
all Franchised Businesses from time to time
by the Company in the Confidential Operations
Manual or otherwise in writing):
(1) Comprehensive General Liability Insur
ance, or Garage Liability Insurance,
covering Premises Operations, Completed
19
Operations, Products Liability, and Contractual
Liability, all with a minimum combined single
limit of $1,000,000 each occurrence, $2,000,000
aggregated all occurrences, for Bodily Injury and
Property Damage, including Personal Injury.
(2) Comprehensive Automobile Liability Insurance
covering all owned, hired, or otherwise operated
non-owned vehicles with a minimum combined single
limit of $500,000 each occurrence for Bodily
Injury and Property Damage, including Personal
Injury.
(3) Garagekeepers' Legal Liability Insurance covering
customers' vehicles in Lessee's care, custody, and
control, including coverage for loss by fire,
explosion, theft, vandalism, and/or malicious
mischief, and collision or upset with a minimum
limit of $300,000 each occurrence.
(4) All Risk Property Insurance, including Agreed
Amount Endorsement, but excluding coverage for
Acts of God as defined in Paragraph 9 of this
Lease, which con tains a waiver of co-insurance
covering Leased Premises for loss or damage with a
minimum insurance requirement of $250,000.
Lessee's maximum liability for Property loss
covered by such All Risk Property Insurance is
$400,000, for each occurrence. The Lessee may
elect to self-insure the difference between the
minimum requirement ($250,000) and the maximum
liability ($400,000) or insure to the maximum
liability ($400,000). The Company is to be the
loss payee.
(5) (i) Workers' Compensation Insurance
covering Lessee and, as required by
law, Lessee's Employees, and
(ii) Employers' Liability Insurance with
a minimum limit of (i) $500,000
each occurrence, (ii) $500,000
20
disease-policy limits and (iii)
$500,000 disease-each employee.
Such policy or policies shall be written by a licensed
insurance company satisfactory to the Company in accordance
with standards and specifications set forth in the
Confidential Operations Manual or otherwise in writing. The
Company reserves the right to review and amend the amounts and
types of the required insurance coverage annually, and the
minimum amounts as required above may be modified from time to
time, as conditions require, by written notice to Lessee. The
insurance afforded by the policy or policies respecting
liability shall not be limited in any way by reason of any
insurance which may be maintained by the Company.
Within thirty (30) days after execution of this Lease, Lessee
shall furnish the Company with policies or Certificates of
Insurance showing compliance with the foregoing requirements,
which policies or Certificates shall provide that coverage
will not be cancelled or altered prior to ninety (90) days'
advance written notice to the Company and which shall reflect
proof of payment of premiums. However, the Company's failure
to demand or receive said Certificates shall in no event be or
be construed as a waiver by the Company to require delivery of
said Certificates or the underlying insurance policies of
Lessee. Subrogation against the Company shall be waived with
respect to all of the insurance policies set forth above.
The insurance required hereunder in no way limits or restricts
Lessee's obligations under this Lease as to indemnification of
the Company and the Indemnified Parties, and further, the
insurance to be carried shall in no way be limited by any
limitation placed on the indemnity herein given as a matter of
law. Any deductible amounts are the responsibility of Lessee.
Lessee shall immediately notify its insurance carrier in
writing, with a copy to the Company, of all third party
lawsuits, or claims, that involve the Leased Premises and/or
operations thereon.
Should Lessee, for any reason, not procure and
maintain insurance coverage as required by this
21
Lease, the Company shall have the right and authority
(without, however, any obligation to do so) immediately to
procure such insurance coverage and to charge same to Lessee,
which charges, together with a reasonable fee for expenses
incurred by the Company in connection with such procurement,
shall be payable by Lessee immediately upon notice.
14. TERMINATION.
(a) The Company may terminate or not renew this Lease by
written notice to Lessee, upon the occurrence of any of
the following:
(i) Lessee's failure to comply with any
provision of this Lease, the Fleet
Marketing Throughput Agreement, if
applicable, the Franchise Agreement or
any other agreement between the parties,
which provision is reasonable and of
material significance to the Franchise
Relationship between the Company and
Lessee. The Company is not required to
give Lessee an opportunity to remedy any
such failure prior to termination or not
renewing this Lease; or
(ii) Lessee's failure to exert good faith efforts to
carry out the terms and conditions of this Lease,
the Franchise Agreement, the Fleet Marketing
Throughput Agreement, if applicable, or any other
agreement between the parties. Prior to
terminating or not renewing this Lease under the
provisions of this subsection (ii), the Company
shall advise the Lessee in writing of such failure
and give Lessee a reasonable opportunity to remedy
it; or
(iii) The happening of any one or more of the following
listed events, defined in the Petroleum Marketing
Practices Act, as amended (including any similar
successor legislation, the "PMPA"), as an event
relevant to the Franchise Relationship or the
happening of any other event which is relevant to
the Franchise Relationship, including, but not
limited to, the following: (The Company is not
22
required to give Lessee an opportunity to remedy any
such happening prior to terminating or not renewing this
Lease.)
(A) Lessee's fraud or criminal mis conduct in
the operation of the Leased Premises.
(B) Declaration of bankruptcy or judicial
determination of insolvency of Lessee.
(C) If Lessee is an individual, the
death of or the continuing severe
physical or mental disability of
Lessee of at least three (3)
months' duration, which renders
Lessee unable to provide for the
continued proper operation of the
Leased Premises.
(D) The loss of the Company's right to
grant possession under this Lease
through expiration of any under
lying lease, if Lessee was notified
in writing, prior to the commence
ment of the term of this Lease, of
the duration of the underlying
lease and of the fact that such
underlying lease might expire and
not be renewed during the term of
this Lease or at the end of this
Lease.
(E) The condemnation or other taking,
in whole or in part, of the Leased
Premises under the power of eminent
domain. The condemnation award
paid to the Company, or the payment
received by the Company in exchange
for its voluntary conveyance in
lieu of condemnation, shall belong
solely to the Company, and Lessee
shall not, by virtue of this Lease,
be entitled to any part thereof;
PROVIDED, HOWEVER, that nothing in
this Lease shall preclude Lessee
from prosecuting any claim directly
against the condemning authority
for loss of business, or deprecia
tion to, damage to, or cost of,
23
removal of, or for the value of stock,
inventory and other personal property of
Lessee; and FURTHER PROVIDED, HOWEVER, that
no such claim shall diminish or otherwise
adversely affect the Company's award or
proceeds.
(F) The Company's loss of the right to
grant Lessee the use of any Xxxx,
unless the loss is due to the
Company's trademark abuse, xxxxx
tion of federal or state law, or
other fault or negligence of the
Company related to bad faith action
by the Company.
(G) The destruction, other than by the Company,
of all or substantially all of the Leased
Premises.
(H) Lessee's failure to pay the Company in a
timely manner, when due, all sums to which
the Company is legally entitled.
(I) Lessee's failure to operate the Leased
Premises for seven (7) consecutive days, or
shorter period of time which, under the
facts and circumstances, is an unreasonable
period of time.
(J) Lessee's willful adulteration, mislabeling
or misbranding of Motor Fuel sold at the
Leased Premises, or other trademark, trade
name, service xxxx, or other identifying
symbol or name violations.
(K) Lessee's knowing failure to comply with
federal, state or local laws or regulations
that are relevant to the operation of the
Leased Premises.
(L) Lessee's conviction of any felony
involving moral turpitude; or
(iv) The Company's good faith determination, made in
the normal course of business,
24
to withdraw from the marketing of Motor Fuel through
retail outlets in the state or geographic area in which
the Leased Premises is located if:
(A) The term of this Lease is three (3) years or
longer or Lessee was offered a term of three
(3) years or longer and elected to accept a
lesser term; and
(B) The Company's determination to
withdraw was made after the
effective date of this Lease; and
(C) The Company's determination to withdraw was
made as a result of a change of relevant
facts and circumstances.
(b) In addition to the rights of termination or nonrenewal
by the Company set forth in subsections (i), (ii), (iii)
and (iv) above, the Company may decline to renew this
Lease:
(i) If the Company and Lessee fail to agree to changes
or additions to this Lease made by the Company in
good faith and in the normal course of business,
and the Company does not insist on such changes or
additions being made for the purpose of preventing
the renewal of this Lease.
(ii) If the Company receives numerous bona fide
complaints concerning Lessee's operation of the
Leased Premises and the Company promptly notifies
Lessee of each complaint and the reason it was com
municated to the Company, and as to those
complaints relating to the con dition of the
Leased Premises or the conduct of any employee of
Lessee, Lessee does not take prompt action to cure
or correct the basis for such complaints. The
Company will com municate these complaints to
Lessee in writing using the Company's Customer
Complaint Form ("Customer Complaint Form"). A
written statement from Lessee as to the outcome is
required by the Company.
25
(iii) If Lessee fails on at least three (3) occasions
during the term of this Lease, to operate the
Leased Premises in a clean, safe and healthful
condition and the Company notified Lessee of each
such failure.
(iv) The Company makes a good faith determination in
the normal course of business not to renew this
Lease because such renewal would be uneconomical
to the Company, despite any changes or additions
to the provisions of this Lease that may be
acceptable to Lessee; PROVIDED, HOWEVER, that such
nonrenewal is not made for the purpose of
converting the Leased Premises to operation by
employees or agents of the Company for the
Company's own account.
(c) The Company may also decline to renew this Lease if the
Company makes a good faith determination, in the normal
course of business, to:
(i) Convert the Leased Premises to a use other than
for the operation of an Auto/ Truckstop; or
(ii) Materially alter, add to or replace the Leased
Premises if such alteration, addition or
replacement is not made for the purpose of
converting the Leased Premises to operation by
employees or agents of the Company for the
Company's own account; or
(iii) Sell the Leased Premises.
(d) Nonrenewal under subsection (b)(iv) above or
nonrenewal under subsection (c) shall not be
effective unless (i) the term of this Lease
is for three (3) years or longer, or Lessee
was offered a term of three years or longer
and elected to accept a shorter term, and
(ii) within the 90 day period following
notice of nonrenewal, the Company makes a
bona fide offer to sell, transfer or assign
its interest in the Leased Premises to
Lessee, or if applicable, grants Lessee a 45
day preferential right to meet the bona fide
26
offer of another Person to purchase the
Company's interest in the Leased Premises.
(e) The Company's written notice of termination
or nonrenewal shall include a statement that
this Lease is being terminated or not renewed
and shall set forth the reason or reasons for
termination or nonrenewal. The effective
date of the termination or nonrenewal shall
be at least 90 days after the date of notice
of termination or nonrenewal, unless a 90 day
notice would not be reasonable as set forth
in subparagraph 14(f) below. The Company
shall include with the notice a copy of the
Summary of Title I of the PMPA, prepared by
the Office of the Secretary of Energy and
published August 30, 1978, in Volume 43, No.
169 of the Federal Register (the "PMPA
Summary").
(f) Although at least 90 days written notice of
termination or nonrenewal is provided for in
most circumstances, there may be times when
the giving of a 90 day notice is not
reasonable. If such a circumstance occurs
with regard to an event set forth in
subsection (a), (b) or (c) above, the Company
may terminate or not renew this Lease by
giving Lessee written notice of termination
or nonrenewal on the earliest date that is
reasonably practical.
(g) Nothing in this Lease shall prohibit or restrict the
Company from terminating or not renewing this Lease in
any lawful manner under applicable federal, state and
local laws or regulations, including, but not limited to
the PMPA, as such laws or regulations may be amended
from time to time.
15. MUTUAL TERMINATION. Lessee and the Company may agree in writing
to terminate or not renew this Lease. The effective date of such termination or
nonrenewal shall be the date agreed to by Lessee and the Company but may not be
a date that is more than 180 days after the date of such agreement. The Company
shall send by certified mail, or personally deliver to Lessee, a copy of (i) the
agreement promptly after it is signed by the Company and Lessee and (ii) the
PMPA Summary. Lessee may repudiate such agreement by written notice to the
Company, sent by certified mail, postmarked not more than seven (7) days
following the date Lessee receives a copy of such agreement.
27
16. TERMINATION BY LESSEE. Lessee may terminate this Lease at any
time by 180 days' advance written notice to the Company, posted by certified
mail, but only if Lessee simul taneously terminates the Franchise Agreement in
accordance with the terms of the Xxxxxxxx Agreement. Upon receipt of such notice
by the Company, it may not be withdrawn by Lessee without the Company's written
approval.
17. CONDEMNATION. [INTENTIONALLY OMITTED.]
18. DEATH OR INCAPACITY OF LESSEE.
(a) In the event of the death or incapacity of an
individual Lessee, or any partner of a Lessee
which is a partnership or any stockholder
owning fifty percent (50%) or more of the
capital stock of a Lessee which is a corpora
tion, the heirs, beneficiaries, devisees, or
legal representatives of said individual,
partner or stockholders shall notify the
Company within fifteen (15) days of death or
incapacity, and, within one hundred eighty
(180) days of such event:
(i) Apply to the Company for the right to continue to
operate the Franchised Business for the duration
of the term of this Lease, which right shall be
granted upon the fulfillment of all of the
conditions set forth in subpara graph 10(b) of
this Lease; or
(ii) Sell, assign, transfer, or convey
Lessee's interest in compliance with the
provisions of subparagraph 10(b) of this
Lease; PROVIDED, HOWEVER, in the event a
proper and timely application for the
right to continue to operate has been
made and rejected, the one hundred eight
(180) days to sell, assign, transfer or
convey shall be computed from the date
of said rejection. For purposes of this
Paragraph, the Company's silence on an
application made pursuant to subpara
graph 10(b) through the one hundred and
eighty (180) days following the event of
death or incapacity shall be deemed a
rejection made on the last day of such
period.
28
(b) In the event of the death or incapacity of an
individual Lessee, or any partner or stock
holder of a Lessee which is a partnership or
corporation, where the aforesaid provisions
of Paragraph 10 have not been fulfilled
within the time provided, all rights licensed
to Lessee under this Lease and Lessee's
leasehold interest in the Leased Premises
under this Lease shall, at the option of the
Company, terminate forthwith.
19. BANKRUPTCY. If Lessee files a petition in bank ruptcy or for
reorganization, is adjudicated a bankrupt, makes an assignment for the benefit
of creditors, or a receiver or trustee of the property of Lessee is appointed in
any proceeding brought by or against Lessee, and if such receiver or trustee is
not discharged within 60 days after such appointment, or if this Lease is
attached or executed upon and within or for 60 days thereafter such attachment
has not been released or such execu tion has not been satisfied or such person
or persons remain in possession, the Company may terminate this Lease.
20. TAXES AND ASSESSMENTS. The Company shall pay all taxes and
assessments levied against the Leased Premises. Lessee shall pay all taxes on
the products, property, and improvements of the Lessee on the Leased Premises.
Lessee shall be exclusively liable for the payment of any and all premiums,
contributions, and taxes for Workers' Compensation Insurance, Unemployment
Insurance, old Age Benefits, annuities, and retirement benefits now or hereafter
imposed by or pursuant to any governmental law or regulation which are measured
by the wages, salaries, or remuneration paid by Lessee to his employees and
representatives.
21. INDEPENDENT CONTRACTOR. Lessee is an independent contractor
hereunder. It is agreed that none of the provisions of this Lease reserves or
shall be construed as reserving to the Company any right to exercise control
over the business operations of Lessee upon the Leased Premises or to direct in
any respect the manner in which such business and operations shall be conducted
(including the price at which products and merchandise are to be sold), it being
understood and agreed that except as set forth to the contrary in the Franchise
Agreement, the entire control and direction of such activities shall be and
remain with Lessee. Lessee shall have no authority to employ any persons as
employees or agents for or on behalf of the Company for any purpose, and neither
Lessee nor any other persons performing any duties or engaging in any work at
the request of Lessee shall be deemed to be the employees or agents of the
Company. Lessee will not erect nor permit any sign, insignia, or other
advertising device upon or near the Leased Premises which would in any way
29
indicate or imply that the Company is the owner or operator of the business
being conducted thereon by Lessee.
22. CREDIT CARD SALES. [INTENTIONALLY OMITTED.]
23. SURRENDER OF PREMISES. At the expiration or termination of this
Lease, Lessee shall yield immediate and peaceable possession of the Leased
Premises to the Company and shall, at such time, return the keys to all locks;
said Leased Premises to be surrendered to the Company in as good condition as
when received, except for reasonable wear and tear and damage or destruction not
caused by Lessee or Lessee's employees', agents', or contractors' negligent or
willful acts or omissions.
Upon the termination or nonrenewal of this Lease, (unless state law
provides to the contrary) neither the Company nor any incoming Lessee shall be
obligated to purchase any of Lessee's inventory, tools, equipment, or supplies;
provided, however, that the Company, at its option, may purchase any of such
inventory, tools, equipment, or supplies which are not obsolete and are in a
current and saleable condition which Lessee purchased from the Company, for the
reasonable value thereof, but not to exceed the cost to Lessee, and credit the
amount thereof against any sums due the Company by Lessee. With respect to
property items owned by Lessee and not purchased by the Company, and
improvements, alterations, decorations, or additions', structural or otherwise,
made by Lessee, Lessee agrees to remove same immediately from the Leased
Premises prior to the end of the Lease and repair any and all damage to the
Leased Premises caused or occasioned by such removal. Any property not removed
by Lessee may be removed and the Leased Premises restored by the Company at
Lessee's expense. Any property not removed by either party shall become the
property of the Company and no compensation will be due Lessee therefore.
24. INSPECTION OF LEASED PREMISES. The Company has the right to
enter and inspect the Leased Premises at any reasonable time with such employees
and equipment as it considers necessary to (a) determine if the obligations of
Lessee under this Lease are being fulfilled, (b) perform replacements required
of the Company under this Lease pursuant to Exhibit C and/or (c) conduct a Five
Star Appearance inspection. Lessee agrees to cooperate with the Company in
connection with the Company's activities pursuant to clauses (a), (b) and (c) of
the immedi ately preceding sentence, such cooperation to include making
employees and the Manager available at reasonable times for discussion with the
Company's employees and representatives.
30
25. AMENDMENTS; WAIVERS; REMEDIES.
(a) Any provision of this Lease may be amended or waived if,
and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Lessee and the
Company, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by either party of any default,
misrepresentation or breach of warranty or
covenant hereunder, whether intentional or
not, shall be deemed to extend to any prior
or subsequent default, misrepresentation or
breach of warranty or covenant hereunder or
affect in any way any rights arising by
virtue of any prior or subsequent occurrence.
No single or partial exercise by either party
in exercising any right, power or privilege
hereunder shall preclude any other or further
exercise thereof or the exercise of any other
right, power or privilege. The rights and
remedies herein provided shall be cumulative
and not exclusive of any right or remedies
provided by law.
26. SUCCESSORS AND ASSIGNS. This Lease shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
27. ARBITRATION.
(a) Any monetary claim of less than ONE HUNDRED THOUSAND
Dollars ($100,000.00) in dispute arising out of or relating to this Lease, or
any breach thereof, shall be submitted to arbitration before a single arbitrator
in the county and state where the Company's principal place of business is
located at the time such action is brought forth in accordance with the rules of
the American Arbitration Association and judgment upon the award may be entered
in any court having jurisdiction thereof. The arbitrator is explicitly
authorized to award attorney's fees as part of his or her award. Nothing
contained herein shall, however, be construed to limit or to preclude the
Company from bringing any action in any court of competent jurisdiction for
injunctive or other provisional relief as the Company deems to be necessary or
appropriate to compel Lessee to comply with its obligations hereunder to or
protect the Company's Marks or other property rights of the Company. In
addition, nothing contained herein shall be construed to limit or to preclude
the Company from joining with any action for injunctive or provisional relief
all monetary claims that the Company may have against Lessee
31
which arise out of the acts or omissions to act giving rise to the action for
injunctive or provisional relief. This arbitration provision shall be deemed to
be self-executing and in the event that Lessee fails to appear at any properly
noticed arbitration proceeding, award may be entered against Lessee
notwithstanding its failure to appear.
(b) Nothing herein contained shall bar the right of either
party to seek and obtain temporary injunctive relief from a court of competent
jurisdiction in accordance with applicable law against threatened conduct that
will cause loss or damage, pending completion of the arbitration.
(c) It is the intent of the parties that any arbitration
between the Company and Lessee shall be of Lessee's individual claim and that
the claim subject to arbitration shall not be arbitrated on a classwide basis.
28. GOVERNING LAW. This Lease shall be construed in
accordance with and governed by the laws of the State in which
the Leased Premises is located.
29. COUNTERPARTS; EFFECTIVENESS. This Lease may be signed in any
number of counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Lease shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
30. ENTIRE AGREEMENT. This Lease, together with the Franchise
Agreement, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings
and negotiations, both written and oral, between the parties with respect to the
subject matter of this Lease. Neither this Lease nor any provision hereof is
intended to confer upon any person or entity other than the parties hereto any
rights or remedies hereunder, except the rights given to the Indemnified Parties
in Paragraph 13.
31. JURISDICTION. Each of the parties hereto
irrevocably submits to the jurisdiction of any state or federal
court sitting in the county and state in which the Leased
Premises is located, in any action or proceeding arising out of
or relating to this Lease, agrees that all claims in respect of
the action or proceeding may be heard and determined in any such
court, and agrees not to bring any action or proceeding arising
out of or relating to this Lease in any other court or to contest
the jurisdiction (in rem or in personam) or power or decision of
such court over or pertaining to the party or with respect to the
subject matter in any other court within or without the United
States other than appropriate appellate courts. Each of the
32
parties hereto irrevocably waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety
or other security that might be required of the other party hereto with respect
thereto.
32. CAPTIONS. The captions herein are included for
convenience of reference only and shall be ignored in the
construction or interpretation hereof.
33. SEVERABILITY. If any provision of this Lease, or the application
thereof to any Person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder of
this Lease and such provisions as applied to other Persons, places and
circumstances shall remain in full force and effect only if, after excluding the
portion deemed to be unenforceable, the remaining terms shall provide for the
consummation of the transactions contemplated hereby in substantially the same
manner as originally set forth at the later of the date this Lease was executed
or last amended.
34. CONSTRUCTION. Whenever required by the context,
any gender shall include any other gender, the singular shall
include the plural and the plural shall include the singular.
35. INCONSISTENCY. In the event of any conflict between the terms
and provisions of this Lease and the terms and provisions of the Franchise
Agreement or the Fleet Marketing Throughput Agreement, if applicable, the terms
and provisions of the Franchise Agreement or the Fleet Marketing Throughput
Agreement, as the case may be, shall govern and control.
36. NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, two business days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below,
(iii) if given by telex or telecopier, once such notice or other communication
is transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received, provided that
such notice or other communication is promptly thereafter mailed in accordance
with the provisions of clause (ii) above or (iv) if sent through a reputable
overnight delivery service in circum stances to which such service guarantees
next day delivery, the day following being so sent:
33
If to the Company,to: National Auto/Truckstops, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
C. Xxxxxxx Xxxxxxx
Telex:
Telecopy: (000) 000-0000
If to Lessee, to:
--------------------------------------
Attention:
---------------------------
Telex:
--------------------------------
Telecopy:
-----------------------------
Either party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it is
actually received by the individual for whom it is intended. Either party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
37. APPROVALS.
(a) Whenever this Lease requires the prior approval or consent
of the Company, Lessee shall make a timely written request to the Company
therefor, and, except as otherwise provided herein, any approval or consent
granted must be in writing to be binding upon the Company.
(b) The Company makes no warranties or guarantees upon which
Lessee may rely and assumes no liability or obligation to Lessee or any third
party to which it would not otherwise be subject, by providing any waiver,
approval, advice, consent or services to the Company in connection with this
Lease, or by reason of any neglect, delay or denial of any request therefor.
38. FORCE MAJEURE. The period of time during which either party
hereto is prevented or delayed in the performance or fulfilling any obligation,
other than payment of the Fixed Rent Amount (as defined in Exhibit B),
additional rent or any other fees or sums and charges due hereunder, due to
unavoidable delays caused by Acts of God, earthquake, fire, flood, or the
elements, malicious mischief, riots, strikes, lockouts, boycotts, picketing,
labor disputes or disturbance, war, compliance with any directive, order or
regulation of any governmental authority or representative thereof acting under
claim or color of
34
authority, or for any reason beyond such party's reasonable control, whether or
not similar to the foregoing, shall be added to such party's time for
performance thereof, and such party shall have no liability by reason thereof.
39. SUBORDINATION AND NON-DISTURBANCE.
(a) This Lease shall be subordinate to each and every
underlying lease, deed of trust or mortgage encumbering the Leased Premises or
any portion thereof, whether now existing or in the future, and to any advances
made on the security thereof and to any renewals, modifications, consolidations,
replacements or extensions thereof, whenever made or recorded. The Company
covenants that Lessee's right to quiet possession of the Leased Premises during
the term hereof shall not be disturbed if Lessee pays the rent and performs all
of Lessee's obligations under this Lease and is not otherwise in default. The
Company shall use commercially reasonable efforts to obtain a non-disturbance
agreement embodying the provisions of the immediately preceding sentence from
all current and future holders of mortgages or deeds of trust affecting the
Leased Premises (hereinafter collectively referred to as the "Mortgagees");
provided, however, that the Company shall not be required to pay any sum
demanded by any Mortgagee as consideration for any such non-disturbance
agreement. If any ground lessor, beneficiary or mortgagee elects to have this
Lease prior to the lien of its ground lease, deed of trust or mortgage and gives
written notice thereof to Lessee, this Lease shall automatically be deemed prior
to such ground lease, deed of trust or mortgage whether this Lease is dated
prior or subsequent to the date of said ground lease, deed of trust or mortgage
or the date of recording thereof.
(b) If the Company's interest in the Leased Premises is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, Lessee shall attorn to the transferee of or
successor to the Company's interest in the Leased Premises and recognize such
transferee or successor as the Company under this Lease. Lessee waives the
protection of any statute or rule of law which gives or purports to give Lessee
any right to terminate this Lease or surrender possession of the Leased Premises
upon the transfer of the Company's interest. The Company shall not assert any
claim against Lessee for any sums due under this Lease paid by Lessee to a third
party after receipt by Lessee of notice in writing from the Company directing
Lessee to pay any such sums to such third party, and before Lessee receives
notice from the Company revoking such direction.
(c) Lessee shall sign and deliver any instrument or documents
necessary or appropriate to evidence any such attornment or subordination or
agreement to do so, provided that
35
such instruments or documents are consistent with the provisions of the
immediately preceding subparagraphs (a) and (b). If Lessee fails to do so within
twenty (20) days after written request, Lessee hereby makes, constitutes and
irrevocably appoints the Company, or any transferee or successor of the Company,
the attorney-in-fact, coupled with an interest, of Lessee to execute and deliver
any such instrument or document.
40. EXISTING CONDITION OF PREMISES. Lessee acknowledges that the
Leased Premises are and have been subject to active use by an operating business
and have experienced normal wear and tear as a result thereof. Lessee has had
reasonable opportunity to inspect, and has inspected, the Leased Premises and
accepts the Leased Premises in its present condition as of the date hereof. The
Company has no obligation to perform any work or make any alterations, additions
or improvements in order to prepare the Leased Premises for Lessee's occupancy.
Lessee acknowledges that neither the Company nor any agent of the Company has
made any representation as to the condition of the Leased Premises or its
suitability for Lessee's intended use.
41. COST OF ENFORCEMENT OR DEFENSE. If a claim for amounts owed by
Lessee to the Company is asserted in any legal proceeding before a court of
competent jurisdiction, or if the Company or Lessee is required to enforce this
Lease in a judicial proceeding, the prevailing party shall be entitled to
reimbursement of its costs, including reasonable accounting and legal fees, in
connection with such proceeding.
42. INJUNCTIVE RELIEF. Lessee shall have the right to obtain
injunctive relief against threatened or actual conduct by Lessee that will cause
the Company loss or damages, for Lessee's misuse or unauthorized use of the
Leased Premises, for Lessee's threatened actual violation of the provisions of
this Lease governing Confidential Information. Such injunctive relief shall be
governed under the usual equity rules, including the applicable rules for
obtaining restraining orders and preliminary injunctions.
43. LINE OF CREDIT. In order to guaranty the performance of the
monetary obligations to the Company pursuant to this Lease, Lessee shall
establish a line of credit with the Company's Credit Department in an amount
determined by the Company Credit Department. In the event that Lessee fails to
pay any amounts due pursuant to this Lease, the Company may refuse to extend
credit to Lessee if Lessee fails to meet the terms of credit.
44. CAVEAT. The success of the business venture
contemplated to be undertaken by Lessee by virtue of this Lease
is speculative and depends, to a large extent, upon the ability
36
of Lessee as an independent business entity, and its active participation in the
daily affairs of the business as well as other factors. Franchisor does not make
any representation or warranty express or implied as to the potential success of
the business venture in this Lease.
45. ACKNOWLEDGEMENTS.
(a) Lessee represents and acknowledges that it has received,
read and understood this Lease; and that the Company has fully and adequately
explained the provisions herein to Lessee's satisfaction; and that the Company
has accorded Lessee ample time and opportunity to consult with advisors of its
own choosing about the potential benefits and risks of entering into this Lease.
(b) Lessee acknowledges that its has received a copy of this
Lease and the attachments thereto, at lease five (5) business days prior to the
date on which this Lease was executed. Lessee further acknowledges that Lessee
has received the disclosure document required by the Trade Regulation Rule of
the Federal Trade Commission entitled Disclosure Requirements and Prohibitions
Concerning Franchising and Business Opportunity Ventures, at least ten (10)
business days prior to the date on which this Lease was executed.
(c) Lessee has been advised to consult with its own advisors
with respect to the legal, financial and other aspects of this Lease, the
business franchised hereby, and the prospects for that business. Lessee has
either consulted with such advisors or has deliberately declined to do so.
(d) Lessee affairs that all information set forth in any and
all applications, financial statements and submissions to the Company is true,
complete and accurate in all respects, with Lessee expressly acknowledging that
the Company is relying upon the truthfulness, completeness and accuracy of such
information.
(e) Lessee has conducted an independent investigation of the
business contemplated by this Lease and recognizes that, like any other
business, an investment in a Franchised Business and the Leased Premises
involves business risks and that the success of the venture is primarily
dependent upon the business abilities and efforts of the Lessee.
(f) LESSEE UNDERSTANDS AND ACKNOWLEDGES THAT ALL
REPRESENTATIONS OF FACT MADE BY THE COMPANY HEREIN ARE MADE
SOLELY BY THE COMPANY. ALL DOCUMENTS, INCLUDING THE COMPANY'S
FRANCHISE AGREEMENT AND THIS LEASE, HAVE BEEN PREPARED SOLELY IN
RELIANCE UPON REPRESENTATIONS MADE AND INFORMATION PROVIDED BY
37
THE COMPANY, ITS OFFICERS AND ITS DIRECTORS. LESSEE FURTHER AGREES THAT IT HAS
NO CLAIM AGAINST, AND WILL INDEMNIFY AND HOLD HARMLESS, THE PREPARER OF ANY AND
ALL SUCH FRANCHISE AGREEMENTS, LEASES AND OFFERING CIRCULARS AND EXHIBITS
THERETO, WITH RESPECT TO ANY AND ALL LOSS, COSTS, EXPENSES (INCLUDING ATTORNEYS'
FEES), DAMAGES AND LIABILITIES RESULTING FROM ANY REPRESENTATIONS AND/OR CLAIMS
MADE BY THE COMPANY IN SUCH DOCUMENTS.
NATIONAL AUTO/TRUCKSTOPS, INC.[LESSEE]
By: By:
-------------------------- -----------------------------
Name: Name:
Title: Title:
38
INDEX TO AUTO/TRUCKSTOP LEASE PARAGRAPHS AND EXHIBITS
SUBJECT PAGE
1. PROPERTY............................................................ 2
2. TERM................................................................ 2
3. RENT................................................................ 3
4. RECORDS AND AUDIT................................................... 4
5. SERVICES AND USES................................................... 4
6. PROHIBITED USES..................................................... 8
7. OPERATING EXPENSES.................................................. 9
8. ALTERATIONS........................................................ 10
9. MAINTENANCE AND REPAIRS............................................. 10
10. TRANSFERABILITY OF INTEREST........................................ 11
11. UNDERLYING LEASE.................................................... 13
12. OPERATION BY LESSEE................................................ 13
13. INDEMNITY AND INSURANCE............................................ 14
14. TERMINATION........................................................ 22
15. MUTUAL TERMINATION................................................. 27
16. TERMINATION BY LESSEE.............................................. 28
17. CONDEMNATION....................................................... 28
18. DEATH OR INCAPACITY OF LESSEE...................................... 28
19. BANKRUPTCY......................................................... 29
20. TAXES AND ASSESSMENTS.............................................. 29
21. INDEPENDENT CONTRACTOR............................................. 29
22. CREDIT CARD SALES.................................................. 30
23. SURRENDER OF PREMISES.............................................. 30
24. INSPECTION OF LEASED PREMISES...................................... 30
25. AMENDMENTS; WAIVERS; REMEDIES...................................... 31
26. SUCCESSORS AND ASSIGNS............................................. 31
27. ARBITRATION........................................................ 31
28. GOVERNING LAW...................................................... 32
29. COUNTERPARTS; EFFECTIVENESS........................................ 32
30. ENTIRE AGREEMENT................................................... 32
31. JURISDICTION....................................................... 32
32. CAPTIONS........................................................... 33
33. SEVERABILITY....................................................... 33
34. CONSTRUCTION....................................................... 33
35. INCONSISTENCY...................................................... 33
36. NOTICES............................................................ 33
37. APPROVALS.......................................................... 34
38. FORCE MAJEURE...................................................... 34
39. SUBORDINATION AND NON-DISTURBANCE.................................. 35
40. EXISTING CONDITIONS OF PREMISES.................................... 36
41. COST OF ENFORCEMENT OR DEFENSE..................................... 36
42. INJUNCTIVE RELIEF.................................................. 36
43. LINE OF CREDIT..................................................... 36
44. CAVEAT............................................................. 36
45. ACKNOWLEDGEMENTS................................................... 37
1
EXHIBIT A-I DESCRIPTION OF REAL PROPERTY
EXHIBIT A-II BUILDINGS, IMPROVEMENTS, FIXTURES
AND EQUIPMENT
EXHIBIT B RENTAL SCHEDULE
EXHIBIT C AUTO/TRUCKSTOP AND TRUCKSTOP MAINTENANCE
RESPONSIBILITY FORM
2
EXHIBIT A-I
DESCRIPTION OF REAL PROPERTY
[To be inserted.]
1
EXHIBIT A-II
BUILDINGS, IMPROVEMENTS, FIXTURES AND EQUIPMENT
[To be inserted.]
1
EXHIBIT B
RENTAL SCHEDULE
Lessee shall pay the Company as rental for the Leased Premises during the term
of this Lease the following:
The "Fixed Rent Amount", as defined below, payable monthly on or before
the 10th day of each calendar month during the term of this Lease;
provided, however, that if the term of this Lease begins and/or ends on a
day other than the first or last day of a calendar month, the applicable
payment of the Fixed Rent Amount shall be appropriately prorated; and
provided further, however, that the Fixed Rent Amount with respect to the
first full or partial calendar month of the term of this Lease is payable
upon execution of this Lease.
As used herein, the Fixed Rent Amount shall be equal to the sum of
$ (the "Base Rent Amount") and $ ; provided, however,
---------- ----------
that the Base Rent Amount shall, as of the month of of each
-----------
calendar year, permanently increase by the percentage, if any, by which
the Deflator (as hereafter defined) for the quarter of such
--------
calendar year shall have increased over the Deflator for the
--------
quarter of the immediately preceding calendar year. Written notice of the
resulting increased Fixed Rent Amount to be paid by Lessee will be sent to
Lessee by the Company. As used herein, the "Deflator" shall mean the
Implicit Price Deflator for the Gross National Product (1982=100),
published by the U.S. Department of Commerce or, should such measurement
no longer be published or available, an appropriately adjusted successor
or substitute deflator.
Rentals shall be paid by Lessee by either (a) electronic fund transfer of
funds to an account maintained by the Company (such electronic fund
transfer may, but is not required to, use the ACCESS 76 System) or (b)
mailing or delivering the same to the Company at:
National Auto/Truckstops, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: C. Xxxxxxx Xxxxxxx
Any rental not paid when due shall bear interest from the due date until
paid at the rate of eighteen percent (18%) per annum, or the highest rate
allowed by law, whichever is less.
1
On or before the 10th day of each calendar month during the term of this Lease
(other than the first full or partial calendar month), the Company shall pay to
Lessee an amount equal to the sum of (a) 9% of the Fixed Rent Amount that was
due and payable and actually paid by Lessee in the immediately prior calendar
month and (b) the product derived by multiplying (x) 3(cent) by (y) the sum of
(A) the number of gallons of diesel fuel, if any, purchased by Lessee from the
Company during the immediately prior calendar month and (B) the number of
gallons of diesel fuel, if any, pumped by Lessee and delivered to Fleet Accounts
in return for a per gallon service fee pursuant to the Fleet Marketing
Throughput Agreement, if applicable, during the immediately prior calendar
month.
2
EXHIBIT C
AUTO/TRUCKSTOP AND TRUCKSTOP
MAINTENANCE RESPONSIBILITY FORM
FEE OWNED SINGLE LEASE
--------------------------------------------------------------------------------
DEFINITIONS AND RESPONSIBILITIES
--------------------------------------------------------------------------------
CLEANING
Cleaning shall mean all material, labor, and equipment required to keep
all dirt, dust grease, trash, and foreign material from the identified item in
accordance with minimum maintenance standards. The methods and cleaning material
are furnished by Lessee at his discretion. Lessee is responsible for the damage
to any material or equipment caused by improper cleaning methods, materials, or
by the omission of proper cleaning.
MAINTENANCE
Maintenance shall mean operating and preventive maintenance and/or repair
or replacement of component parts required to keep equipment and material in
good operating condition, in accordance with the manufacturer's recommendations
and minimum maintenance standards. Equipment and material shall be properly
maintained in order that it may attain its expected life before replacement is
required.
It is not practical to list each component part of all equipment and
material and each maintenance responsibility of Lessee; therefore, in addition
to the maintenance responsibili ties set forth in this Exhibit C, Lessee's
operating and preven tive maintenance responsibility shall also include, but not
be limited to, oiling and greasing of equipment, adjustment of pressure and
temperature settings, filter replacement, oil changing and other similar routine
maintenance operations established by manufacturer's standards or minimum
maintenance standards, or by guidelines published by the Company with at least
30 days' prior written notice thereof to Lessee.
Lessee is also responsible for routine repairs and replacement of
component parts that are relatively minor as compared to the replacement of an
entire piece of equipment or material. These include, but are not limited to,
pump couplings, pump impellers, motor capacitors, belts, belt guards,
thermostats, thermocouples, individual circuit breakers, door
1
closer parts, relay switches, pressure relief valves, gate valves, and similar
types of parts and the labor required to install such parts.
REPLACEMENT
Replacement shall mean the physical replacement of equipment or material
due to normal wear and/or abuse or neglect. The anticipated life of equipment or
material shall be determined by combining manufacturer's information, usage of
the item and experience comparison with similar equipment or material.
If premature replacement of any equipment or material is required due to
Lessee's abuse or neglect, Lessee shall make the replacement at his expense,
regardless of the designated replace ment responsibility set forth in this
Exhibit C. Equipment or material replaced by Lessee shall be with like type of
equipment or material, to the extent practicable.
The Company may, at its sole election, replace equipment or material with
like or different equipment or material.
The Company may replace or rebuild a major component part of a unit of
equipment or material in lieu of replacing the entire unit of equipment or
material. Such replacement or rebuilding shall be the Company's responsibility.
As a general rule, a major component part shall be repaired or replaced if the
estimated cost versus replacement cost of the entire unit is not more than 50%
of such replacement cost; however the Company shall have the sole right to elect
to replace or rebuild a component part or replace the equipment or material.
The Leased Premises may not include all the buildings, improvements,
fixtures, equipment and machinery listed on this Exhibit "C"; therefore, the
cleaning, replacement and maintenance obligations of the Company and Lessee are
applicable only to the buildings, improvements, fixtures, equipment and
machinery located on the Leased Premises as of the effective date of this lease,
and the buildings, improvements, fixtures, equipment and machinery, if any,
placed on the Leased Premises by the Company during the term of this Lease. The
cleaning, maintenance and replacement of buildings, improvements, fixtures,
equipment and machinery, placed on the Leased Premises by Lessee, is the
obligation of Lessee.
--------------------------------------
Lessee Initial
2
