RETAIL SUPPLY AGREEMENT between JACKSON OIL, a division of JACKSONS FOOD STORES, INC. and Bowlin Travel Centers, Inc. November 1, 2006
EXHIBIT
10.43
between
XXXXXXX
OIL, a division of JACKSONS FOOD STORES, INC.
and
Xxxxxx
Travel Centers, Inc.
November
1, 2006
THIS
RETAIL SUPPLY AGREEMENT (“Agreement”) is made effective November 1, 2006, by and
between Xxxxxxx Oil a division of Jacksons Food Stores, Inc., a Nevada
corporation, located at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 (“Seller”),
and Xxxxxx Travel Centers Inc., a Nevada corporation, 000 Xxxxxxxxx Xxxxxx
X.X.,
Xxxxxxxxxxx, Xxx Xxxxxx 00000 (“Purchaser”).
A. Purchaser
currently operates retail fuel sales and retail store operations on certain
real
property located at the location(s) listed on Exhibit A.
B.
A
(collectively, the “Real Property”), together with all improvements, fixtures,
and equipment thereon (each a “Retail Outlet” and collectively the “Retail
Outlets” or “Premises”).
C. Seller
is
engaged in the business of purchasing and distributing Chevron and
Texaco-branded petroleum products (the “Products”), which are supplied to Seller
by ChevronTexaco Products Company, a division of ChevronTexaco U.S.A., Inc.
(“ChevronTexaco”).
D. Purchaser
and Seller desire to enter into this Agreement, pursuant to the terms and
conditions of which Purchaser will purchase from Seller, and Seller will sell
to
Purchaser, the Products for resale at the Retail Outlets.
E. Purchaser
operates various retail fuel sales and retail store operations throughout New
Mexico and Arizona and Purchaser and Seller acknowledge that this Agreement
will
pertain only to the Purchaser’s operations specifically listed as Premises on
Exhibit A.
NOW,
THEREFORE, in consideration of the above recitals which are incorporated below,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto acknowledge, covenant, represent,
and
agree as follows:
1. Sale.
Subject
to Purchaser’s compliance at all times with the terms and conditions of this
Agreement, and the terms and conditions of the System Agreement attached hereto
as Exhibit B, Seller shall provide the Products and services as
follows:
(a) Amount.
Seller
hereby agrees to sell, and Purchaser agrees to buy, such quantities of
ChevronTexaco-brand fuels (“Texaco Automotive Fuels”) as are provided further
herein, to serve customer demand at the Premises.
|
Type
of Texaco Automotive Fuels
|
Automotive
Fuel Rating
|
|
Texaco
or Chevron Power Premium Unleaded Gasoline
|
91
[Minimum Octane Rating]
|
|
Texaco
or Chevron Power Plus Unleaded Gasoline
|
89
[Minimum Octane Rating]
|
|
Texaco
or Chevron Unleaded Gasoline
|
87
[Minimum Octane Rating]
|
|
Diesel
Fuel (Diesel Fuel is not used in the calculation of payments referred
to
herein)
|
Purchaser
is required to post, in a clear and conspicuous manner on the dispensers, the
automotive fuel ratings of the Texaco Automotive Fuels sold at the Premises.
If
Seller supplies Purchaser with Texaco Automotive Fuels having a lower automotive
fuel rating than as shown above, Seller shall provide Purchaser with such lower
automotive fuel rating information and Purchaser shall post such as provided
herein.
(b) Seller
Provision. Upon
the
commencement of the Term, or such earlier date as the parties may establish
by
mutual agreement and memorialize in a writing signed by both parties (“Supply
Commencement Date”), and throughout the term of this Agreement, Seller shall
sell to Purchaser, and Purchaser shall purchase from Seller, pay Seller for,
and
take delivery from Seller of, the following Texaco Automotive Fuels, of the
kind
and quality from time to time marketed by Seller, in quantities and at the
time
and place of delivery as specified from time to time by Purchaser and agreed
to
by Seller. Purchaser,
if an organized entity and not a natural person, agrees to cause the principals
of the Purchaser to execute a Letter Of Credit, in the amount of Seventy-Five
Thousand Dollars ($75,000), in favor of Seller (the “LOC”), guaranteeing payment
and performance of all of Purchaser’s debts and obligations arising under this
Agreement, including but not limited to all amounts owed pursuant to the
Promissory Note.
(c) Shortages
in Supply; Reduction
of Orders. There
shall be no obligation to sell or to buy the Texaco Automotive Fuels covered
by
this Agreement when and while, and to the extent that, the receiving or using
or
manufacture or making deliveries in the customary manner are prevented or
hindered by an act of God, fire, riot, labor disturbance (whether involving
employees of the party affected or of others and regardless of whether the
disturbance could be settled by acceding to the demands of a labor group),
accident, war, or the act of any government (whether foreign or domestic,
federal, state, county, or municipal) or any cause beyond the reasonable control
of the party affected, whether or not similar to any of the foregoing causes.
In
cases of partial or total interruption or loss or shortage of transportation
facilities or supplies, or shortage of Texaco Automotive Fuels deliverable
hereunder, Seller may allocate for Seller’s own use, on any basis which in
Seller’s sole judgment is fair and reasonable, allowing for such priorities as
Seller deems appropriate. No such reduction need be made up.
(d) Seller’s
Documentation of Reductions.
In
the
event of reduction(s) of Seller’s delivery of a Product to Purchaser pursuant to
Subsection 1(c) above, Seller shall provide to Purchaser reasonable
evidence of the reduction imposed upon Seller and the methodology utilized
by
Seller in determining such reduction.
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(e) No
Purchases From Other Than Seller.
Purchaser acknowledges that Seller has invested, and shall invest money, time,
resources, and training in the establishment of the supply relationship and
branding of Premises. In consideration of the covenants and agreements contained
herein, Purchaser agrees to purchase all of its Texaco Automotive Fuels only
from Seller, unless Seller is unable or unwilling to provide sufficient quantity
of Texaco Automotive Fuels, even if such performance is governed by Subsection
1(b) or Subsection 1(c) above. In the event of a termination of this Agreement,
other than at the end of the Term, Purchaser agrees that for a period of two
(2)
years from the earlier of such termination, not to purchase any Chevron Texaco
Automotive Fuels for resale at the Premises from any person other than Seller
without Seller’s prior written consent, unless such termination was a caused by
or was the result of a breach of this Agreement by Seller or Seller’s inability
to properly perform under the terms of this Agreement.
2. Term.
This
Agreement is for a period of ten (10) years commencing on the date hereof and
ending on October 31, 2016 (the “Initial Term”), with an option for renewal for
another period of Five (5) years commencing on November 1, 2016 and ending
on
October 31, 2021 (the “Extended Term”), by giving to Seller notice of
Purchaser’s exercise of such option at least six (6) months prior to the
expiration of the Initial Term; provided, however, that if Purchaser is in
default hereunder on or about the date of giving such option notice, or is
in
default on the date the Extended Term is to commence, such option notice shall
be totally ineffective and this Agreement shall expire at the end of the Initial
Term. The Initial Term and/or the Extended Term are sometimes referred to herein
as the “Term.”
3. Product
Prices and Terms of Payment.
The
prices for the Products to be paid by Purchaser to Seller pursuant to this
Agreement shall be as follows:
(a) Product
Prices.
The
prices Purchaser shall pay Seller for Texaco Automotive Fuels shall be the
posted ChevronTexaco terminal rack price plus the markup of Three-Fourths (3/4)
cents/gallon and freight for gasoline and diesel, when delivered by Seller,
and
all appropriate State and Federal Taxes specified for each Retail Outlet. Seller
agrees to provide Purchaser the same percent or fraction of Texaco Automotive
Fuels as supplied to Seller by ChevronTexaco under the Seller Agreement or
as
supplied to Seller by ChevronTexaco, the Department of Energy, or other
applicable government agency in the event of a supply shortage. Seller
acknowledges that suppliers often provide a discount for early payment of
invoices due (“Early Pay Discount”) and Seller and Purchaser agree that whenever
an Early Pay Discount program is made available to Seller, Seller will offer
the
same Early Pay Discount to Purchaser, whereby Purchaser will be credited the
discount rate for any payments made by Purchaser within the guidelines offered
by the Early Pay Discount program, whether or not Seller chooses to take
advantage of the program for Seller’s payments to ChevronTexaco. Purchaser’s
total cost of Product for each order shall be: the number of gallons of Texaco
Automotive Fuels secured times the posted ChevronTexaco terminal rack price;
plus the markup of Three-Fourths (3/4) cents per gallon; plus the freight costs
for delivery of the Products to the Premises (“Lay-In Price”). Seller guarantees
the lowest possible Lay-In Price to Purchaser, therefore if Purchaser has to
secure Products from a secondary terminal because fuel is not available from
the
terminal that would have afforded Purchaser the lowest Lay-In Price, Seller
will
refund to Purchaser the difference between the lowest Lay-In Price and the
actual Lay-In Price for the specific orders.
(b) Freight
Charges.
Buyer
may, at its option, have Products delivered by qualified freight companies
other
than Seller. If Seller is chosen to deliver the Products, then the following
provisions shall apply: Freight charges shall be ________________cent(s) per
gallon for gasoline, and __________________cent(s) per gallon for diesel fuel
(Texaco Automotive Fuels) transported by Seller to the Retail Outlets. Seller
may also assess split-load fees on orders of less than a full load. Freight
rates charged by Seller to Purchaser are subject to change upon (10) days
notice, in writing. Reasonable freight rates changes may occur if economic
conditions so warrant, or at the discretion of the Seller. In addition, Seller
may impose surcharges at any time when the cost of fuel for Seller’s trucks
exceeds historical averages. If Seller has to go to other terminals besides
Tucson Terminal, additional freight charge(s) will be passed on to Purchaser
unless such freight charges are paid by ChevronTexaco.
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(c) Terms
of Payment.
Costs
of Products are, the sum of Product Prices referenced in Subsection 3(a) above
plus applicable freight charges, if any, as referenced in Subsection 3(b) above.
If delivered by Seller, or Seller’s agents, prices are F.O.B. Purchaser’s place
of business delivered by transport. All payments under this Agreement shall
be
made by Purchaser in accordance with Seller’s payment and credit terms in effect
from time to time, any of which may be altered or revoked by Seller with
reasonable notification to Purchaser. Seller’s current payment terms, as of the
effective date of this Agreement, require payment within seven (7) days from
Purchaser’s receipt of the Products. If Seller elects to extend credit to
Purchaser, Purchaser shall comply with Seller’s credit terms in effect from time
to time, any of which may be altered or revoked by Seller without prior
notification to Purchaser. Purchaser shall make all payments to Seller
via Electronic
Fund Transfer (“EFT”) unless Seller, in its sole discretion requires
Purchaser (i) to pay Seller via wire transfer prior to time of delivery or
at
such time and place or method as Seller may designate from time to time, (ii)
to
provide Seller a cash deposit, or (iii) to provide Seller an irrevocable bank
Letter of Credit sufficient to Seller in form and amount. If Seller requires
Purchaser to pay by cashier’s check, Seller may assess a reasonable
administration charge. Purchaser shall provide any written authorizations
required for EFT purposes. Upon Seller’s request, at any time and from time to
time, Purchaser shall provide Seller with information and documents relating
to
the Purchaser’s financial condition and creditworthiness, including but not
limited to Purchaser’s CPA-reviewed annual financial statements; federal and
state tax returns and bank references. Purchaser hereby authorizes Seller to
perform credit checks and obtain credit reports and other information from
credit reporting agencies and other third parties. Purchaser shall provide
all
requested information within ten (10) business days of Seller’s
request.
(d) Overdue
Sums.
All
overdue sums owed to Seller will bear interest at the maximum lawful rate per
annum from the date due until paid, or twelve percent (12%) per
annum, whichever is less. Further, if Purchaser fails to make timely payment
of
any amount due Seller, in addition to all other rights and remedies available,
Seller may take such action as Seller deems reasonable under the circumstances.
Without limiting the generality of the foregoing, Seller may setoff or equitably
recoup against any amount then due Purchaser, defer further deliveries of the
Products until payment of all outstanding indebtedness is made, and demand
advance cash payment for further deliveries. Purchaser shall comply with the
terms of any reclamation notice issued to Purchaser by Seller under applicable
law.
(e) Security
Interest. The LOC referenced in Subsection 1(b) above is currently the sole
method of guarantee regarding Purchaser performance specified in this Agreement.
If the LOC ceases to exist, then in the absence of the LOC, as security for
the
prompt and complete payment of any and all amounts due to Seller hereunder,
and
under the Guaranty, if any, and the Promissory Note, if any, including all
payments for supplying Purchaser’s inventory, Purchaser hereby grants, conveys
and transfers to Seller a security interest in the Products, which includes
all
ChevronTexaco-brand fuels, now or hereafter acquired, and any and all proceeds
(including insurance proceeds) , substitutions and replacements of the Products,
additions and accessions to and documents covering the Products, any claims
against third parties arising out of damage, destruction, or decrease in value
of the Products, rents revenues, issues, profits, and proceeds arising from
the
sale, lease, license, encumbrance, collection or any other temporary or
permanent disposition, whether voluntary or involuntary, of the Products
(collectively the “Collateral”). In addition, if the LOC ceases to exist, or
becomes insufficient due to expansion of the Agreement to include other
locations, Purchaser hereby authorizes Seller at any time and from time to
time
to file any initial financing statements, amendments thereto and continuation
statements, as applicable to the Collateral, including initial financing
statements and amendments which describe the Collateral more broadly than the
description of the Collateral set forth herein or any security agreement made
by
Purchaser in favor of Seller.
4. Taxes.
Any
tax, duty, toll, fee, impost, charge, or other exaction, or the amount
equivalent thereto, and any increase thereof now or hereafter imposed, levied,
or assessed by any governmental authority upon, measured by, incident to, or
as
a result of the transactions herein provided for (other than local, state,
and
federal net income taxes measured by the net income of Seller from all sources),
or the transportation, importation, production, manufacture, use, or ownership
of the goods the subject of this Agreement shall, if collectible or payable
by
Seller, be paid by Purchaser on demand by Seller. Any such payment shall be
in
addition to the prices otherwise provided for herein. Purchaser shall, at
Seller’s request, execute and deliver to Seller such certificates or other
documents as Seller may reasonably require in order to enable Seller to secure
any tax exemption which may be available in connection with sales or deliveries
hereunder.
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5. Deliveries.
If
Purchaser requests Seller to deliver the Products, this subsection 5. shall
apply. Seller shall deliver or arrange for the delivery of Texaco Automotive
Fuels to Purchaser at the Premises. Orders for deliveries of Texaco Automotive
Fuels shall be placed by Purchaser with such advance notice and in such manner
as Seller may from time to time designate. Deliveries shall be made (except
at
Seller’s option) in full bulk transport quantities in Seller’s customary manner
using equipment selected by Seller. Purchaser shall provide Seller with
unimpeded and adequate ingress to and egress from the Premises twenty-four
(24)
hours per day. Purchaser shall comply with such reasonable rules and regulations
as Seller may from time to time establish regarding deliveries by Seller at
the
Premises. If there is inadequate storage capacity to accept any delivery of
Texaco Automotive Fuels ordered by Purchaser and the delivery vehicle must
leave
the Premises without delivering all of the Texaco Automotive Fuels ordered,
Purchaser shall reimburse Seller on demand for any demurrage or other charges
incurred by Seller by reason of Purchaser’s inability to accept the Products or
release the same within the time allowed therefore without demurrage or other
charge. Title and risk of loss shall pass to Purchaser upon
delivery.
6. Use
of
Premises.
(a) Texaco
Automotive Fuels. Purchaser acknowledges that there is a demand for
Texaco Automotive Fuels at the Premises, and agrees continuously to stock at
the
Premises and to offer for sale such quantities of Texaco Automotive Fuels to
serve customer demand therefore throughout the Term. Purchaser acknowledges
the
financial benefit to Purchaser of selling and prominently displaying Texaco
Automotive Fuels due to the high regard of the motoring public for retail
outlets selling under the ChevronTexaco trademarks and trade names, and
Purchaser agrees at all times to give the dispensing equipment, displays, and
advertisements for Texaco Automotive Fuels and brands prominent and convenient
positions and not to disparage or diminish in any way by act or omission the
good reputation of such trademarks, trade names, products, or retail
outlets.
(b) Operating
Requirements.
Purchaser agrees to devote sufficient time to the personal management of the
Premises so as to provide for the continued proper operation thereof as a
first-class automotive fuel retail outlet; to maintain and operate the Premises
in a clean, safe, and healthful manner with a neat and uncluttered appearance
that is inviting to the motoring public; to offer water and windshield cleaning
materials for use by and at no charge to motorists; to render prompt
professional and courteous service to customers by providing personnel in
numbers adequate to handle available business who are properly trained and
well-groomed; to operate and manage the Premises and cause customers to be
treated in a manner which engenders customer satisfaction and eliminates
customer complaints to the extent possible; to comply with all applicable
federal, state, and local laws and regulations relevant to the use and operation
of the Premises or the resale of all Texaco Automotive Fuels purchased by
Purchaser under this Agreement; and to supply Seller with all information which
Seller shall reasonably request to enable Seller to comply with all applicable
federal, state, and local laws and regulations. Seller and/or Seller’s
authorized representatives and/or ChevronTexaco and/or ChevronTexaco’s
authorized representatives shall have the right at any reasonable time to enter
upon the Premises to confirm the performance by Purchaser of Purchaser’s
obligations under this Agreement.
(c) Price
Signs.
Except
as may be otherwise specified by Seller, Purchaser shall display Purchaser’s
retail prices for all Texaco Automotive Fuels sold at the Premises on one or
more ChevronTexaco-approved price signs. If Purchaser offers different levels
of
refueling service to motorists and charges different Texaco Automotive Fuels
prices depending upon the level of service provided, Purchaser shall clearly
indicate on such price signs the level of service associated with the Texaco
Automotive Fuels prices displayed.
5
(d) Restrooms.
If
there are any restroom facilities on the Premises, Purchaser shall keep such
restrooms open to the public without charge at all times during which the
Premises are open for business (except any times during which Purchaser for
security reason closes any building on the Premises through which the public
must pass to access the restroom facilities and conducts business through a
transaction drawer or similar security device). Purchaser shall at all times
keep any such restroom facilities clean, properly painted, maintained free
of
cracked mirrors, tiles, and walls, properly supplied with trash receptacles
(which shall be emptied regularly), paper products, soaps, and disinfectants,
and otherwise maintained in a first-class manner.
(e) Restricted
Uses.
The
Premises shall not be used for the sale of drug-related paraphernalia or
equipment. Nor shall the Premises be used for the sale or rental of adult
magazines, movies, video tapes, or other similar items featuring
nudity.
(f) Credit
Cards; Debit Cards.
ChevronTexaco may or has previously authorized Purchaser to participate in
ChevronTexaco’s credit card or debit card programs (collectively, “Card
Programs”) approved by ChevronTexaco for purchases at the Premises of the types
of products and services that ChevronTexaco and/or Seller may from time to
time
designate, subject to the following terms and conditions:
(1) The
honoring of such Card Programs by Purchaser and the acceptance by ChevronTexaco
and/or Seller of authorized invoices and other evidence of debt issued thereon
for sale of products and services made by Purchaser to cardholders shall be
subject to terms and conditions established by ChevronTexaco and/or Seller
in
connection with Card Programs, including a requirement for payment of a service
charge on such Card Program transactions submitted to ChevronTexaco and/or
Seller, and Purchaser shall be responsible for the payment of all such service
charges. ChevronTexaco and/or Seller may charge back to Purchaser or refuse
to
accept any credit card invoice pursuant to such terms and conditions as may
now
or in the future impose various service charges under such Card Programs, and
may refuse to process or may charge back to Purchaser credit card or debit
card
transactions in accordance with the terms and conditions of such Card Programs.
ChevronTexaco and/or Seller reserves the right at any time to change such terms
and conditions, or to terminate such Card Programs or any authorization to
Purchaser or Purchaser’s customers to participate in such Card Programs. In
order to help Seller administer such Card Programs, Purchaser shall keep
complete and accurate records showing the dollar amount of the Texaco Automotive
Fuels purchased hereunder supplied by Seller during the Term made under such
Card Programs. Purchaser shall submit copies of such records to Seller as Seller
may request from time to time.
(2) This
authorization shall terminate: (i) at Purchaser’s option, any time upon
Purchaser giving written notice thereof to ChevronTexaco and Seller; or (ii)
at
ChevronTexaco’s and/or Seller’s option, at any time upon ChevronTexaco or Seller
giving written notice thereof to Purchaser; or (iii) automatically upon the
expiration or termination of this Agreement. Upon such expiration or
termination, Purchaser shall promptly return to Seller all of the imprinters
referred to above, and Seller shall refund to Purchaser any unearned, prepaid
rental. If such imprinters are not so returned, ChevronTexaco and/or Seller
shall have the right to remove such imprinters, refunding to Purchaser all
unearned, prepaid rental.
(g) Quick
Service Restaurant.
With
regard to the operation of any quick service restaurant (“QSR”), only QSR brands
that ChevronTexaco and/or Seller approves for co-branding with the ChevronTexaco
brand shall be advertised by exterior signage at the Premises (and only in
accordance with ChevronTexaco’s and/or Seller’s image standards for automotive
fuel retail outlets). ChevronTexaco and/or Seller may revoke co-branding
approval for any particular QSR brand if, because of marketplace changes
affecting that QSR brand, ChevronTexaco and/or Seller, in its or their sole
discretion, determines that association with the QSR brand may undermine the
public’s perception or acceptance of ChevronTexaco’s automotive fuel retail
outlet network or the ChevronTexaco brand.
6
7. Trademarks,
Trade Names, Color Schemes, and Image Requirement.
(a) ChevronTexaco
Trademark Only.
Purchaser shall cause the Premises at all times to comply with ChevronTexaco’s
and/or Seller’s image standards for ChevronTexaco automotive fuel retail
outlets. The Texaco Automotive Fuels purchased by Purchaser under this Agreement
shall be sold by Purchaser as Texaco Automotive Fuels only under the trademarks
and trade names authorized for Texaco Automotive Fuels by ChevronTexaco.
Purchaser shall not at any time offer for sale under such trademarks and trade
names any such Texaco Automotive Fuels not authorized by Seller and/or
ChevronTexaco to be sold thereunder. Purchaser shall conduct Purchaser’s
business so as to eliminate any likelihood of substitution or commingling of
the
products of others as or with those of Texaco Automotive Fuels. Purchaser agrees
to abide by such regulations to this end as Seller and/or ChevronTexaco may
from
time to time establish. Without limitation on the foregoing, ChevronTexaco
and/or Seller or it or their representative(s) shall have the right at any
time
to take samples of Texaco Automotive Fuels from the Premises for testing
purposes, compensating Purchaser (at Purchaser’s cost, which for this purpose
shall be based on Seller’s prices to Purchaser hereunder in effect at the time
the Texaco Automotive Fuels taken, or, at Seller’s option, in kind) for any
Texaco Automotive Fuels so taken.
(b) ChevronTexaco
Insignias.
Purchaser recognizes ChevronTexaco’s right to use and authorize others to use
all trademarks, service marks, trade names, color schemes, and automotive fuel
retail outlet designs (collectively “Insignia”) utilized by ChevronTexaco to
identify products and services, and Purchaser agrees not to claim any right,
title, or interest therein. Purchaser acknowledges the need of Seller and/or
ChevronTexaco to control Purchaser’s use of such Insignia in order to maintain
the validity thereof and to assure the continued recognition of, acceptance
by,
and high regard of the motoring public for products and services identified
by
such Insignia, and Purchaser acknowledges ChevronTexaco shall have the right
at
any time during the Term to change, alter, or amend any of the trademarks and
trade names under which the Texaco Automotive Fuels covered by this Agreement
are now or may hereafter be sold. Accordingly, Purchaser agrees to use Insignia
only in such a manner as may be approved by Seller and/or ChevronTexaco and
acknowledges that Seller and/or ChevronTexaco may from time to time change
such
Insignia and its promotional materials as it sees fit. Purchaser shall not
use
or permit the use of any such Insignia in Purchaser’s legal entity name or
assumed business name, nor use or permit the use of any such Insignia in the
name or assumed name of any other business and/or entity in which Purchaser
has
an interest. Purchaser acknowledges that all signs advertising ChevronTexaco’s
products and all signs in the colors used by ChevronTexaco to identify its
products or the places at which its products are sold and all rights therein
are
and shall continue to be the property of ChevronTexaco. Seller and/or
ChevronTexaco may, during the term of this Agreement, and within a reasonable
period thereafter, remove or obliterate such signs, and repaint so much of
the
Premises as it elects, in a color or colors selected by it. If ChevronTexaco
removes or obliterates any signs or repaints any of the Premises, ChevronTexaco
need not restore any pre-existing signs on or paint schemes of the Premises.
Purchaser may not use other signs at the Premises to advertise Texaco Automotive
Fuels purchased from Seller without Seller’s and/or ChevronTexaco’s prior
written consent. No other signs (except Texaco Automotive Fuel price signs)
shall be placed on a sign pole containing a sign advertising a product
manufactured or handled by ChevronTexaco. Upon expiration or termination of
this
Agreement, Purchaser shall immediately return to Seller all signs supplied
to
Purchaser by ChevronTexaco or Seller and shall immediately discontinue any
and
all use of such Insignia and shall obliterate such Insignia from all real or
personal property utilized by Purchaser. Purchaser likewise shall obliterate
such Insignia from any real or personal property of Purchaser before selling
any
such property to a third party.
(c) ChevronTexaco
Image.
Purchaser shall cause the Premises at all times to comply with Seller’s and/or
ChevronTexaco’s image standards for automotive fuel retail outlets, as
established by Seller and/or ChevronTexaco from time to time. Purchaser shall
enroll in ChevronTexaco’s mystery shopper program and adhere to all guidelines.
If Purchaser scores a 75% or below on 50% (one half) of the shop during the
program year, than Purchaser will be considered non-compliant which may lead
up
to de-branding of the facility.
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(d) Brands,
Grades, and Quality.
The
Texaco Automotive Fuels covered by this Agreement shall be Texaco’s brands,
grades, and quality thereof, respectively, as established by ChevronTexaco
from
time to time for its sellers at the time and place of delivery. ChevronTexaco
shall have the right at any time during the term of this Agreement to change,
alter, or amend any brands under which the Texaco Automotive Fuels covered
by
this Agreement that are now or may hereafter be sold. If ChevronTexaco shall
at
any time during the term of this Agreement discontinue the marketing of any
or
all of the Texaco Automotive Fuels covered by this Agreement, Seller shall
be
relieved of all obligation to sell or deliver such discontinued Texaco
Automotive Fuels to Purchaser and, if ChevronTexaco shall market any other
product in lieu of the discontinued Texaco Automotive Fuels, this Agreement
shall embrace the new product and all of the terms and conditions hereof
previously applicable to the discontinued Texaco Automotive Fuels shall apply
to
the new product.
8. Conduct
of Purchaser’s Business.
(a) Independent
Business.
Purchaser is engaged in an independent business, and nothing herein contained
shall be construed as granting to Seller any right to control Purchaser’s
business or operations or the manner in which the same shall be conducted,
Purchaser’s obligation to Seller hereunder being the performance of the terms
and conditions of this Agreement. Seller has no right to hire or fire any
employees of Purchaser or to exercise any control over any of Purchaser’s
employees, all of whom are entirely under the control and direction of
Purchaser, who shall be responsible for their acts and omissions. Purchaser
accepts exclusive liability for all contributions and payroll taxes required
under federal social security laws and state unemployment compensation laws
or
other payments under any laws of similar character as to all persons employed
by
or working for Purchaser.
(b) Strict
Compliance.
Purchaser shall conduct all operations hereunder in strict compliance with
all
applicable laws, ordinances, and regulations of all governmental authorities,
including, without limitation, all rules and regulations of the U.S. Department
of Transportation, the Federal Petroleum Marketing Practices Act, and all
applicable franchise laws and regulations. Purchaser shall supply ChevronTexaco
and/or Seller with all information, which ChevronTexaco and/or Seller shall
reasonably request to enable ChevronTexaco and/or Seller to comply with all
applicable laws, ordinances, and regulations of all governmental authorities.
Purchaser’s indemnity obligations under this Agreement shall include, without
limitation, any and all expenses, liabilities, claims, fines, civil penalties,
or demands which may arise or be assessed as a result of any failure by
Purchaser to comply with any of the foregoing governmental
requirements.
(c) Goodwill.
Purchaser shall diligently promote the sale at the Premises of the Texaco
Automotive Fuels purchased under this Agreement, and shall conduct the operation
of Purchaser’s business in such a manner as to promote goodwill towards
ChevronTexaco and/or Seller. Purchaser agrees to assist in the administration
of
any promotional program ChevronTexaco and/or Seller may establish for its
purchasers or other customers. Purchaser agrees to distribute to Purchaser’s
customers such promotional materials supplied by ChevronTexaco and/or Seller
as
ChevronTexaco and/or Seller may from time to time reasonably
request.
(d) Hazardous
Materials.
Purchaser hereby covenants, represents, and warrants to Seller that: (i) the
Premises are not contaminated with any Hazardous Material (as defined below);
(ii) Purchaser has not caused and will not cause, and to the best of Purchaser’s
knowledge, after diligent investigation and inquiry, there never has occurred,
the release of any Hazardous Material on the Premises in violation of
Environmental Laws; (iii) the Premises are not subject to any federal, state,
or
local “superfund” or other lien, proceeding, claim, liability, or action, or the
threat or likelihood thereof, for the cleanup, removal, or remediation of any
such Hazardous Material from the Premises; (iv) there is no asbestos or asbestos
containing materials on the Premises in violation of Environmental Laws; and
(v)
Purchaser will indemnify, defend, and hold Seller harmless from and against
any
and all claims, demands, liabilities, damages, suits, actions, judgments, fines,
penalties, losses, costs, and expenses (including, without limitation,
attorney’s fees) arising or resulting from, or suffered, sustained, or incurred
by, Seller as a result (direct or indirect) of the untruth or inaccuracy of
any
of the foregoing matters represented and warranted by Purchaser to Seller or
the
breach of any of the foregoing covenants, representations, and warranties of
Purchaser.
8
“Hazardous
Material” means asbestos, PCBs, and any hazardous, toxic, or special substance,
material, waste, or petroleum that is regulated by any governmental authority,
including the State of Arizona or the United States government and includes,
without limitation, any material, substance, or waste that is (i) designated
as
such pursuant to Section 307 of the Federal Water Pollution Control Act, 33
U.S.C. § 1251 et
seq.
(33
U.S.C. § 1317); (ii) defined as such pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901
et
seq.
(42
U.S.C. § 6903); (iii) defined as such pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§ 9601 et
seq.
(42
U.S.C. § 9601); or (iv) designated or defined as such under any applicable
federal or state statute or county or municipal law, regulation, ordinance,
order, or code, in each case as amended (collectively, “Environmental
Laws”).
(e) Indemnification.
Purchaser shall indemnify, defend, and hold harmless Seller, ChevronTexaco,
and
their respective directors, officers, partners, members, agents, and employees
from and against all expenses (including attorney’s fees), liabilities, and
claims of whatsoever kind and nature including, without limitation, those for
damage to property (including Purchaser’s property) or injury to or death of
persons (including Purchaser), directly or indirectly resulting, or alleged
to
result, from anything occurring from any cause on or about or in connection
with
the maintenance, upkeep, repair, replacement, operation, or use of the Premises,
or anything located thereon. The foregoing indemnity shall not apply where
such
expenses, liabilities, or claims result from Seller’s sole negligence or willful
misconduct.
9. Termination.
(a) Termination
By Purchaser.
Purchaser may terminate this Agreement without cause at any time during the
Term
provided Purchaser gives Seller ninety (90) days’ written notice of such
termination, and provided further that the Debt is fully repaid to Seller as
provided herein.
(b) Termination
By Seller.
Seller
may, in addition to such other remedies as Seller may have (including, without
limitation, the right to terminate this Agreement as otherwise provided herein),
terminate this Agreement upon giving Purchaser ninety (90) days’ prior written
notice of such termination or, if it would not be reasonable for Seller to
give
ninety (90) days’ prior written notice, at Seller’s election upon giving
Purchaser prior written notice for such lesser period as is reasonable in the
circumstances, if any one of the following occurs:
(1) Purchaser
by act or omission breaches or defaults on any covenant, condition, or other
provision of this Agreement, which breach or default can be cured, and Purchaser
fails to cure such breach or default within ten (10) days after written notice
from Seller which notice shall specify such breach of default; or
(2) Purchaser
by act or omission breaches or defaults on any covenant, condition, or other
provision of this Agreement, which breach or default cannot be cured, or in
the
event of any breach or default by Purchaser after notice of two previous
breaches or defaults of any kind has been given hereunder, regardless of
Purchaser’s curing of such previous breaches or defaults; or
(3) Purchaser
fails to pay to Seller in a timely manner when due all sums to which Seller
is
legally entitled (whether or not such sums are owed to Seller under this
Agreement); or
(4) Purchaser
knowingly fails to comply with federal, state, or local laws or regulations
relevant to Purchaser’s performance of this Agreement and/or the use and/or
operation of the Premises; or
9
(5) Purchaser
willfully adulterates, commingles, mislabels, or misbrands Texaco Automotive
Fuels or other violations by Purchaser of trademarks, trade names, and/or
insignia requirements of Seller and/or ChevronTexaco; or
(6) This
Agreement, or any interest therein, is assigned or otherwise transferred
contrary to the provisions hereof; or
(7) Purchaser
vacates, abandons, transfers, or is deprived of possession of the Premises;
or
(8) Unlawful,
fraudulent, or deceptive acts or practices or criminal misconduct by Purchaser
relevant to the Purchaser’s performance of this Agreement and/or the use and/or
operation of the Premises; or
(9) Failure
by Purchaser to operate the Premises as an automotive fuel retail outlet for
seven (7) consecutive days,; or
(10) Conviction
of Purchaser of any felony including moral turpitude; or
(11) Purchaser’s
death, if Purchaser is an individual (subject to any valid requirements of
any
applicable statute); or
(12) Purchaser
knowingly induces the breach by a third party of a contract between Seller
and
the third party; or
(13) Purchaser
declares bankruptcy or is judicially declared insolvent; or
(14) Any
other
event which is relevant to the relationship between Seller and/or ChevronTexaco
and/or Purchaser and as a result of which termination of the Agreement is
reasonable.
Notwithstanding
anything to the contrary herein, and without limitation on the foregoing, it
is
agreed that upon the occurrence of any of the events specified in clauses (1),
(3) through (14) of this subsection (b), it shall not be unreasonable for Seller
to terminate this Agreement upon giving Purchaser ten (10) days’ instead of
ninety (90) days’ prior written notice of such termination.
(c) Payment
By Purchaser Upon Default Or Termination.
In the
event of default hereunder, or if this Agreement is terminated prior to the
end
of the Term, Purchaser agrees to pay immediately to Seller the balance remaining
due, but not limited to, any delivered product to Purchaser’s facility, and (if
applicable) all remaining sums due on the Promissory Note, and all Incentive
payments, made by Seller and/or ChevronTexaco to Purchaser. The refund of
Incentive Payments shall not apply if Seller terminates this Agreement without
cause, if the Agreement terminates as a result of activities referenced in
Subsection 9(d) below, or if such termination was a caused by or was the result
of a breach of this Agreement by Seller or Seller’s inability to properly
perform under the terms of this Agreement.
10
(d) Seller
Withdrawal.
Notwithstanding anything to the contrary herein, if during the Term Seller
decides to withdraw from marketing Texaco Automotive Fuels from Seller’s area of
primary responsibility outlined and attached hereto as Exhibit C and made a
part
hereof, and/or should the agreement between Seller and ChevronTexaco terminate
for any reason whatsoever, Seller may terminate this Agreement by giving
Purchaser reasonable prior written notice of such termination and otherwise
complying with any applicable requirements of law.
(e) Waiver.
Waiver
by Seller or Purchaser of one or more breaches or defaults hereunder shall
not
be deemed to be a waiver of any other or continuing breach or default hereunder.
No modification of this Agreement, and no waiver of any provision hereof, shall
be binding on Seller or Purchaser unless in writing and signed by Seller and
Purchaser and, if deemed reasonable by one or more of the parties hereto, by
ChevronTexaco. Termination of this Agreement shall not relieve Seller or
Purchaser of responsibility for obligations incurred prior to termination.
Upon
termination of this Agreement, subject to any valid requirements of any
applicable statute, neither Seller nor ChevronTexaco shall have any obligation
to purchase from Purchaser any of Purchaser’s inventory, tools, equipment, or
supplies.
(f) Day
To
Day Agreement.
If Seller continues to accept orders from Purchaser for Texaco Automotive Fuels
following termination of this Agreement, such sales shall be upon all of the
terms and conditions hereof; provided that such sales shall not be construed
to
evidence a renewal of this Agreement by operation of law or otherwise, but
shall
imply only an agreement from day to day, which Seller may (subject to any valid
requirements of any applicable statute) terminate without cause at any time
upon
giving Purchaser written notice of such termination.
Purchaser’s
obligations, duties, and responsibilities, including without limitation any
amounts owed to Seller by Purchaser pursuant to this Agreement or that may
accrue as a result of Purchaser’s breach of this Agreement, shall be secured by
an irrevocable Letter Of Credit in the amount of Seventy-Five Thousand Dollars
($75,000) or by other guarantees that the parties, from time to time, may agree
reasonable.
10. Assignment.
(a) General.
This
Agreement is personal to Purchaser, and Purchaser shall not, without Seller’s
prior written consent, assign or encumber Purchaser’s interest in this
Agreement, or delegate any duties that Purchaser may have under this Agreement,
either voluntarily or by operation of law or otherwise by assignment,
encumbrance, sublease, or other arrangements having similar effect, or become
associated with any other person, directly or indirectly, as a partner or
otherwise in regard to Purchaser’s interest or operations under this Agreement;
provided, however, transfers of this Agreement for estate planning purposes
for
the benefit of existing holders of an interest in Purchaser or in any entity
holding an interest in Purchaser or the immediate family members of existing
holders of such interests shall not be deemed an assignment hereunder. Seller
shall have the right at any time to assign its rights and delegate its duties
under this Agreement without Purchaser’s consent. Any such assignment or other
transfer by Purchaser or Seller shall not relieve Purchaser or Seller of their
obligations hereunder.
11
(b) Corporation.
This
paragraph (b) applies if Purchaser is a corporation or a limited liability
company. Any sale, conveyance, alienation, transfer, or other change of interest
in or title to or beneficial ownership of any voting stock or membership
interest of Purchaser (or securities convertible into voting stock of Purchaser)
which results in a change in the control of Purchaser, whether voluntarily,
involuntarily, by operation of law, merger, or other corporate proceedings,
or
otherwise, shall be construed as an assignment of Purchaser’s rights under this
Agreement. A change in the control of Purchaser shall be deemed to occur
whenever a party gains the ability to materially influence the business and
affairs of Purchaser, directly or indirectly. A party who owns fifty-one percent
(51%) or more of the voting stock or membership interest of Purchaser (or
securities convertible into such voting stock) shall be deemed to have such
ability. Thus, for example, the following would constitute an assignment of
Purchaser’s rights hereunder and require Seller’s prior written consent under
paragraph (a) of this Section 10: (i) the transfer of 51% or more of the voting
stock of Purchaser or membership interest; (ii) the transfer of a lesser
percentage of such stock or membership interest to an existing stockholder
or
member, as applicable, who did not previously own more than 51%, but thereby
would own 51% or more of Purchaser’s voting stock or membership interest; or
(iii) the transfer of a lesser percentage of such stock or membership interest
which as a practical matter results in a change in the control of
Purchaser.
(c) Partnership.
This
paragraph (c) applies if Purchaser is a partnership. Any sale, conveyance,
alienation, transfer, or other change of interest in or title to or beneficial
ownership of any partnership interest in Purchaser which results in a change
in
the control of Purchaser, whether voluntary, involuntary, by operation of law,
or otherwise, shall be construed as an assignment of Purchaser’s rights under
this Agreement. A change in the control of Purchaser shall be deemed to occur
whenever a party gains the ability to influence the business and affairs of
Purchaser, directly or indirectly. A party who owns twenty-five percent (25%)
or
more of a partnership, (whether a general or limited partnership), or 25% of
the
general partnership interests in a limited partnership, shall be deemed to
have
such ability. Thus, for example, the following would constitute an assignment
of
Purchaser’s rights hereunder and require Seller’s prior written consent under
paragraph (a) of this Section 10: (i) the transfer of 25% or more of the
beneficial interest in Purchaser; (ii) the transfer of 25% or more of the
general partnership interests in Purchaser; (iii) the transfer of a lesser
percentage of such interests in Purchaser to an existing partner who would
thereby own 25% or more of the total partnership of 25% or more of the general
partnership interests in Premises; or (iv) the transfer of a lesser percentage
of such partnership interests which as a practical matter results in a change
in
the control of Purchaser.
11. Insurance.
(a) Scope
of Insurance.
Without
in any way limiting Purchaser’s indemnities contained herein, Purchaser shall
maintain, at Purchaser’s own expense during the Term hereof, insurance with
respect to Purchaser’s business, the Premises, and all activities on or about or
in connection with the Premises of the types and in the minimum amounts
described generally as follows:
(1) Garage
Liability Insurance or Commercial General Liability Insurance (bodily injury
and
property damage) of not less than $1,000,000.00 combined single limit per
occurrence, including the following coverages: explosion hazard, personal
injury, Premises-operations, products and completed operations, blanket
contractual and independent contractors liability, contractual liability
insurance to cover liability assumed under this Agreement, and liquor liability
(if alcoholic beverages are sold from the Premises); and
(2) Automobile
Liability Insurance (bodily injury and property damage) of not less than
$1,000,000.00 combined single limit per occurrence on all automobiles, all
tow
trucks and service vehicles which are owned, nonowned, hired, or leased by
Purchaser, and all vehicles bearing the hallmark or other Insignia used by
ChevronTexaco, which are owned, nonowned, hired, or leased by Purchaser;
and
12
(3) If
required by state or federal mandate, Environmental Impairment Liability
Insurance (bodily injury and property damage) of not less than $1,000,000.00
combined single limit of liability, including gradual seepage, pollution, and
cleanup costs; and
(4) Worker’s
Compensation and Employer’s Liability Insurance as prescribed by applicable law;
and
(5) Any
other
insurance or surety bonding that may be required under the laws, ordinances,
and
regulations of any governmental authority, including the Federal Motor Carrier
Act of 1980, as amended from time to time, and all rules and regulations of
the
U.S. Department of Transportation, as amended from time to time, and any other
applicable federal, state, or local laws and regulations; and
(6) Excess
liability insurance of not less than $1,000,000.00 per occurrence in excess
of
the insurance required under clauses (1), (2), (4) (except Worker’s
Compensation), and (5) above, affording not less than the same coverage and
including personal injury and property damage coverage.
(b) The
insurance required in subsection (a) above shall include Seller and
ChevronTexaco as additional insureds except with regard to occurrences that
are
the result of their sole negligence and shall require the insurer to provide
ChevronTexaco and Seller with thirty (30) days’ prior written notice of any
cancellation or material change in such insurance.
(c) Insurance
Company Standards.
The
insurance required above shall be issued by insurance companies which meet
Seller’s financial standards for insurers (as established by Seller from time to
time) and shall provide that no cancellation or material change in any policy
shall become effective except upon thirty (30) days’ prior written notice to
Seller. The insurance companies shall have no recourse against Seller,
ChevronTexaco, or any other additional insured, for payment of any premiums
or
assessments under any policy issued by a mutual insurance company. Purchaser
shall furnish certificates satisfactory to Seller as evidence that the insurance
required under this section is being maintained. Purchaser shall be responsible
for all deductibles in all of Purchaser’s insurance policies. Purchaser’s
indemnity and other obligations shall not be limited by the foregoing insurance
requirements.
12. Corporate/LLC
Dealer; Operator.
(a) Personal
Qualifications.
The
personal qualifications of Purchaser is of material significance to Seller,
other automotive fuel retail outlets displaying ChevronTexaco’s Insignia, and
the motoring public. Whether Purchaser does business as a partnership,
corporation, or limited liability company (“LLC”), this Agreement is entered
into by Seller with the understanding that this Agreement is conditioned on
the
individual(s) remaining actively involved with and responsible for the operation
of the Premises and retaining control of the partnership, corporation, or LLC.
Accordingly, if Purchaser is a partnership, corporation, or LLC and subject
to
any valid requirements of any applicable statute, Purchaser agrees that the
references to “Purchaser” in clauses (8), (9), (11), and (12) of subsection 9(b)
hereof are amended hereby to read “Purchaser or any Operator” and that
Purchaser’s rights under this Agreement are subject to the following conditions
being met throughout the term of this Agreement, which Purchaser shall cause
the
following entity, (“Operator”), to meet: Xxxxxx Travel Centers Inc.
(1) Operator
shall perform Purchaser’s obligations under this Agreement to devote sufficient
time to the supervision of operations at the Premises so as to provide for
the
continued proper operation thereof as an automotive fuel retail
outlet.
13
(2) This
clause (3) applies if Purchaser is an LLC or limited liability partnership.
Operator shall own all right, title, and interest, legal and beneficial, in
and
to a majority voting interest, majority profit interest, and majority capital
interest in Purchaser. Operator shall not pledge or otherwise hypothecate any
such interests, or permit or suffer any lien or encumbrance to be placed
thereon, or grant proxies or enter into operating or other agreements which
limit in any manner Operator’s control of Purchaser, or otherwise create,
permit, or suffer legal, beneficial, or other rights or interests to exist
in
others with regard to any such interests of Operator in Purchaser.
(3) This
clause (4) applies if Purchaser is a general or limited partnership. Operator
shall be a general partner and own all right, title, and interest, legal and
beneficial, in and to a majority voting interest, majority profit interest,
and
majority capital interest in Purchaser. Operator shall not pledge or otherwise
hypothecate any such interests, or permit or suffer any lien or encumbrance
to
be placed thereon, or grant proxies or enter into operating agreements or other
agreements which limit in any manner Operator’s control of Purchaser, or
otherwise create, permit, or suffer legal, beneficial, or other rights or
interests to exist in others with regard to any such interests of Operator
in
Purchaser.
(4) Operator
shall oversee the performance of all of Purchaser’s obligations under this
Agreement.
(b) Constructive
Assignment.
Automobile
Fuel Regulations.
(c) Laws
and Regulations.
The
automotive fuels covered by this Agreement are subject to federal air pollution
laws and regulations controlling fuels and fuels additives for use in motor
vehicles and motor vehicle engines. Those laws and regulations require, without
limitation, automotive fuels to meet product specifications designed to minimize
harmful emissions, and impose directly on Purchaser, Seller, any distributor,
reseller, retailer, or wholesale purchaser-consumer (as defined in such
regulations) receiving regulated automotive fuels from Purchaser (“Purchaser’s
automotive fuel customers”) and ChevronTexaco specific legal obligations in
selling and distributing regulated automotive fuels. ChevronTexaco has
established certain programs and procedures for handling regulated automotive
fuels to achieve compliance with these governmental requirements and reduce
liability exposure for noncompliance. Purchaser recognizes the importance to
ChevronTexaco, Seller, Purchaser, the public, and Purchaser’s automotive fuel
customers of meeting fully all governmental automotive fuel requirements.
Accordingly, Purchaser shall comply with, and Purchaser shall require
Purchaser’s automotive fuel customers to comply with, ChevronTexaco’s current
and future programs and procedures for handling regulated automotive fuels,
as
set forth in ChevronTexaco’s Retail Facility Compliance Guide, ChevronTexaco’s
Motor Fuel Quality Compliance Manual, and in all other manuals and/or written
communications that ChevronTexaco has distributed or may in the future
distribute to Purchaser. Neither ChevronTexaco nor Seller represent or warrant
that following ChevronTexaco’s programs and procedures for handling regulated
automotive fuels will ensure compliance with all governmental automotive fuel
requirements. Purchaser is independently responsible for complying fully with
all applicable federal, state, and local laws and regulations pertaining to
automotive fuels, and for causing, to the best of its ability, Purchaser’s
automotive fuel customers to so comply, and Purchaser shall, without
limitation:
(1) prohibit
the sale, dispensing, or offering for sale of gasoline represented to be
unleaded gasoline unless it meets the requirements for unleaded gasoline defined
in the Federal Regulations;
(2) prohibit
introduction, or causing or allowing the introduction of, leaded gasoline into
any motor vehicle which is labeled “unleaded gasoline only,” or which is
equipped with a gasoline tank filler inlet which is designed for the
introduction of unleaded gasoline;
(3) require
that all gasoline pumps from which leaded gasoline is introduced into motor
vehicles, be equipped with a nozzle spout having a terminal end with an outside
diameter of not less than 0.930 inch (2.363 centimeters);
14
(4) require
that all gasoline pumps from which unleaded gasoline is introduced into motor
vehicles, be equipped with a nozzle spout which meets the following
specifications: (i) the outside diameter of the terminal end shall not be
greater than 0.840 inch (2.134 centimeters); (ii) the terminal end shall have
a
straight section of at least 2.5 inches (6.34 centimeters) in length; and (iii)
the retaining spring shall terminate 3.0 inches (7.6 centimeters) from the
terminal end;
(5) require
that the following notice be displayed in the immediate area of each pump
island:
Federal
Law Prohibits the Introduction of Any Gasoline
Containing
Lead or Phosphorus Into Any Motor Vehicle
Labeled
“UNLEADED GASOLINE ONLY”;
(6) require
that unleaded gasoline pumps have affixed a label stating: “Unleaded
Gasoline”;
(7) require
that leaded gasoline pumps have affixed a label stating: “Contains lead
antiknock compounds.”
(d) Notice
of Contamination.
Purchaser shall advise ChevronTexaco and Seller if Purchaser has any indication
that contamination of Texaco Automotive Fuels at the Premises may have occurred
in order that ChevronTexaco and/or Seller may, at its or their option, conduct
a
test of such Texaco Automotive Fuels. ChevronTexaco’s and/or Seller’s
representative shall have the right at any reasonable time to enter upon the
Premises and to take such quantities of Texaco Automotive Fuels as ChevronTexaco
and/or Seller deem necessary to check the quality of the Texaco Automotive
Fuels, compensating Purchaser (at Purchaser’s cost, which for this purpose shall
be based on Seller’s price to Purchaser hereunder in effect at the time such
Texaco Automotive Fuels is taken, or, at ChevronTexaco’s and Seller’s option, in
kind) for any Texaco Automotive Fuels so taken.
(e) Spills.
If a
Texaco Automotive Fuels spill occurs anywhere in connection with Purchaser’s
performance of this Agreement, Purchaser shall promptly notify ChevronTexaco
and
Seller and the appropriate governmental authorities and shall take immediate
action to clean up the spill. Upon receipt of such notification, ChevronTexaco
and/or Seller shall have the right, at its or their election, to provide, or
cause to be provided, to Purchaser such additional manpower, equipment, and
material as, at Purchaser’s request, may be necessary to assist Purchaser to
complete the clean-up of such spill in a satisfactory manner. Purchaser shall
pay and be responsible for and Purchaser’s indemnity obligation under this
Agreement shall include but shall not be limited to, all costs and expenses
incurred in connection with such clean-up, including reimbursement to
ChevronTexaco and/or Seller for all of its or their costs and expenses, and
all
fines, charges, fees, or judgments imposed or levied by any federal, state,
or
local governmental agency as a result of such spill, except in the event the
spill resulted solely from the act or omission on the part of ChevronTexaco,
ChevronTexaco’s employees or agent, Seller, or Seller’s employees or
agents.
(f) Indemnity.
Purchaser’s indemnity obligations under this Agreement, including this Section,
shall include, without limitation, any and all expenses (including attorney’s
fees), liabilities, claims, fines, civil penalties, or demands which may arise
or be assessed as a result of any act or omission of Purchaser, or Purchaser’s
agents or employees in handling Texaco Automotive Fuels purchased hereunder,
or
as a result of failure by any of them to follow Seller’s and/or ChevronTexaco’s
programs and procedures for handling Texaco Automotive Fuels and/or failure
to
comply with any and all applicable federal, state, and local laws and
regulations pertaining to automotive fuels.
15
(g) Termination.
If
Purchaser fails to comply with the requirements of this section with regard
to
any particular Texaco Automotive Fuels, then Seller, in addition to such other
remedies as it may have, shall have the right to terminate delivery to Purchaser
of the Texaco Automotive Fuels in question or to suspend such delivery until
Seller is satisfied that Purchaser is again in compliance herewith.
13. Incentive
and Promotional Programs.
ChevronTexaco may offer to Seller and/or Purchaser from time to time incentive,
promotional, or other development programs. Such incentive, promotional, and
development programs may be amended, modified, or terminated upon thirty (30)
days’ prior written notice to Purchaser by ChevronTexaco and/or Seller. The
duties and obligations of ChevronTexaco under such incentive, promotional,
and
development programs may be assigned to Seller. If such assignment is made,
the
obligations, responsibilities, and duties imposed on Purchaser pursuant to
the
incentive, promotional, or development programs, including any reimbursement,
credit, refund, or adjustment, may be secured, in Seller’s sole discretion, The
parties acknowledge that ChevronTexaco and Purchaser have entered into those
certain terms and conditions of the particular incentive, promotional, and
development program known as Investment Incentive Program as specified in
Exhibit D attached hereto. The duties and obligations of ChevronTexaco there
under have been or are being assigned to Seller.
14. Notice.
All
notices, demands, requests, and other communications under this Agreement shall
be in writing and shall be properly served or delivered if delivered by hand
to
the party to whose attention it is directed, or when sent, three (3) days after
deposit in the U.S. mail, postage prepaid, certified mail, return receipt
requested, addressed as follows:
|
If
to Purchaser:
Xxxxxx
Travel Centers, Inc.
000
Xxxxxxxxx Xxx. X.X.
Xxxxxxxxxxx,
XX 00000
|
If
to Seller:
Jacksons
Food Stores, Inc.
0000
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
|
or
at
such other address or to such other party which any party entitled to receive
notice hereunder designates to the other in writing as provided
above.
15. Mediation.
In the
event a disagreement arises between Seller and Purchaser, either Purchaser
or
Seller may demand mediation and shall give written notice to that effect to
the
other party specifying in such notice the name, address, and professional
qualifications of the person designated to act as mediator on behalf of the
party requesting mediation. Within ten (10) days after delivery of such notice,
the party receiving such notice shall give written notice to the party desiring
such mediation whether such mediator is acceptable and, if not, specifying
the
name, address, and professional qualifications of the person designated to
act
as mediator on behalf of that party. The two mediators so selected shall, within
five (5) days thereafter, select a third mediator. The mediator so chosen shall
meet with the parties within ten (10) days after the appointment of such
mediator in an attempt to reach a resolution of the disagreement between the
parties. Each party shall pay one-half of the fees and expenses of the mediator
appointed by or on behalf of such party and the fees and expenses of the third
mediator. If those receiving a request for mediation fail to appoint a mediator
within the time above specified, or if the two mediators so selected cannot
agree on the selection of a third mediator within the time above specified,
or
if the result of such mediation is unsatisfactory to one or both parties, then
any party may avail itself of any legal or equitable remedy available to it
under Idaho law.
16
16. System.
ChevronTexaco has furnished (or will furnish) to the Purchaser for use at the
Premises certain electronic software (the “System”) for processing ChevronTexaco
authorized card transactions through Chevron’s Retail Technology System and
other purposes. Purchaser hereby agrees to execute concurrently herewith, and
be
bound by, the System Agreement in the form attached hereto as Exhibit
B.
17. Prior
Agreements.
This
Agreement shall not become effective if, prior to the commencement of the Term,
ChevronTexaco notifies Purchaser of ChevronTexaco’s election to exercise any
right ChevronTexaco may have to terminate any prior supply contract with
Purchaser covering the delivery of Texaco Automotive Fuels to the Premises.
In
such event, this Agreement shall be null and void. Subject to the foregoing,
effective as of the commencement of the Term, this Agreement supersedes and
terminates all prior supply contracts between ChevronTexaco and Purchaser
covering the delivery of Texaco Automotive Fuels to the Premises, provided
that
any outstanding breach by Purchaser of any such prior supply contract shall
be
deemed to be a breach of this Agreement and the occurrence of any event
authorizing the termination of any such prior supply contract shall authorize
the termination of this Agreement.
18. Dealer
Application; Conflicts of Interest.
(a) Purchaser
represents and warrants that all information set forth in Purchaser’s written
application to become a Texaco dealer and all other written information,
including but not limited to financial statements, submitted by Purchaser in
connection with such application was at the time of submission true, accurate,
and complete, and did not omit any material fact necessary to make the
information submitted, in light of the circumstances under which it was
submitted, not misleading.
(b) Except
as
otherwise expressly provided herein, neither Purchaser nor any director,
employee, or agent of Purchaser shall give to or receive from any director,
employee, or agent of ChevronTexaco and/or Seller any gift, entertainment,
or
other favor of significant value, or any commission, fee, or rebate, without
ChevronTexaco’s and/or Seller’s prior written consent, enter into or maintain
any business arrangement with any director, employee, or agent of ChevronTexaco
and/or Seller unless such person is acting as a representative of and on behalf
of ChevronTexaco and/or Seller.
(c) In
the
event of any breach of the representations and warranties set forth in this
Section 19 or any other violation of this Section 19, including any violation
occurring prior to the commencement of the Term which resulted directly or
indirectly in Seller entering into this Agreement, Seller shall have the right
to terminate this Agreement. Purchaser shall immediately notify Seller upon
acquiring knowledge of any violation of this Section 19.
19. Indemnity.
Purchaser shall indemnify, defend, and hold harmless ChevronTexaco and/or Seller
and their respective directors, employees, agents, and representatives from
and
against any and all expenses (including attorney’s fees), liabilities, and
claims of whatsoever kind and nature including, without limitation, those for
damage to property (including property of Purchaser) or for injury to or death
of any person (including Purchaser), directly or indirectly arising or alleged
to arise out of or in any way connected with the storage, handling,
distribution, sale, or use of Texaco Automotive Fuels purchased hereunder,
or
with the maintenance, upkeep, repair, replacement, or operation of the Premises
or anything located thereon, including any act or omission of Purchaser or
Purchaser’s agents, employees, or representatives in the performance of this
Agreement, or in the operation of any vehicle or vehicles in connection with
Purchaser’s business, except if such expenses., liabilities or claims were
caused by the negligence or actions of Seller or it’s representatives or
agents.
17
20. Miscellaneous.
(a) Wherever
under the terms and provisions of this Agreement the time for performance falls
upon a Saturday, Sunday, or legal holiday, such time for performance shall
be
extended to the next business day.
(b) This
Agreement embodies the entire agreement between the parties hereto with respect
to the subject matter hereof. No modification or amendment to or of this
Agreement of any kind whatsoever shall be made or claimed by Seller or Purchaser
or shall have any force or effect whatsoever unless the same shall be endorsed
in writing and signed by the party against which the enforcement of such
modification or amendment is sought, and then only to the extent set forth
in
such instrument; provided, however, Purchaser agrees to execute any and all
documents, instruments, agreements, deeds, or other workings that may be
necessary to implement the terms and conditions of this Agreement.
(c) All
parties hereto have either been represented by separate legal counsel or have
had the opportunity to be so represented. Thus, in all cases, the language
herein shall be construed simply and in accordance with its fair meaning and
not
strictly for or against a party, regardless of which party prepared or caused
the preparation of this Agreement.
(d) In
the
event of any lawsuit between Seller and Purchaser arising out of or relating
to
other transactions or relationships contemplated by this Agreement (regardless
of whether such action alleges breach of contract, tort, violation of a statute,
or any other cause of action), the substantially prevailing party shall be
entitled to recover its reasonable aspects of such action but not others, the
court may apportion any award of costs or attorneys’ fees in such manner as such
court deems equitable.
(e) The
captions at the beginning of the several paragraphs, respectively, are for
convenience in locating the context, but are not part of the text.
(f) This
Agreement shall be governed by the laws of the state of Idaho.
(g) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
(h) The
terms, provisions, agreements, representations, covenants, and indemnities
shall
survive the Term hereof and shall remain binding upon and for the parties hereto
until fully observed, kept, or performed.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
| SELLER: | PURCHASER: | |||
|
JACKSONS
OIL a division of XXXXXXX
FOOD
STORES,
a
Nevada corporation
|
Xxxxxx Travel Centers, Inc. | |||
| By: | /s/ Xxxx Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | |
|
|
|
|||
| Xxxx Xxxxx, President | Xxxxxxx X. Xxxxxx, President | |||
18
