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EXHIBIT 10.4A
SERVICES AGREEMENT
AGREEMENT, dated as of February 1, 1999 between GETTY REALTY CORP., a
Maryland corporation ("Realty"), and GETTY PETROLEUM MARKETING INC., a Maryland
corporation ("Marketing").
SUMMARY
Pursuant to a Reorganization and Distribution Agreement dated as of
January 31, 1997, (the "Distribution Agreement") between Getty Properties Corp.
(f/k/a Getty Realty Corp. hereinafter "Properties") and Marketing, Properties on
the date thereof transferred to Marketing the Marketing Assets and Marketing
Business (as such terms are defined in the Distribution Agreement) in
anticipation of a distribution by Properties of the common stock of Marketing to
the stockholders of Properties. A condition of the closing of the transactions
contemplated by the Distribution Agreement was that Properties and Marketing
enter into a services agreement pursuant to which Marketing shall provide
certain services as agent for Properties and Properties shall provide certain
services as agent for Marketing.
A Services Agreement dated as of February 1, 1997 was entered into
between Properties and Marketing which Agreement was for a term of two (2) years
and which expired January 31, 1999.
The parties hereto wish to enter into a new agreement to cover the
services to be performed.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter set forth, and intending to be legally bound
hereby, the parties agree as follows:
1. MARKETING SERVICES. Marketing agrees, as agent for Realty, to utilize
its employees and assets to provide certain services consistent with
the type, quality and level of such services required by Realty and
provided by Getty Petroleum Corp. immediately prior to the Distribution
Date, in connection therewith. The services to be provided are set
forth below, together with the applicable monthly charge for each such
service:
SERVICES MONTHLY CHARGE
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Financial Reporting $ 8,900.00
Accounting/Payroll $10,700.00
Data Processing/Computer $10,900.00
Tax $ 5,600.00
Legal $13,900.00
Treasury $ 4,400.00
Office Services $ 2,300.00
Human Resources $ 2,900.00
Engineering/Environmental $ 7,900.00
Investor Relations $ 3,900.00
Purchasing $ 700.00
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SERVICES MONTHLY CHARGE
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Servicing of Non-Petroleum
Class "37" Leases $ 5,500.00
2. INVOICE AND PAYMENT. Marketing shall invoice Realty once each month for
the services performed during the prior month and Realty shall pay
Marketing for such services not later than ten (10) days from the
receipt of invoice. The amount paid shall be net of the amount owing to
Realty under Paragraphs 3 and 4.
3. REALTY SERVICES. Realty agrees that as agent for Marketing (i) Realty
will act as the permittee or licensee under all permits and licenses
until such time(s) as all permits and licenses are either transferred
to Marketing or new ones are issued therefor; (ii) Realty will continue
to act as the party at interest in all instances where contracts,
leases or the like are not assignable to Marketing or Realty has been
unable to obtain consent to assignment where consent is required; and
(iii) Realty will draw on all electronic funds transfer authorizations
("EFT") issued by third parties to Realty and letters of credit in
favor of Realty (collectively hereinafter "draws") until such time as
new EFT agreements and letters of credit are issued, all for the
benefit of Marketing. Marketing (x) will reimburse Realty for any
out-of-pocket expenses it may incur in performing such services, and
(y) will defend, indemnify and hold harmless Realty in the event that
any such draws made at Marketing=s direction result in claims for
damages for wrongful draws made under clause (iii) above. The services
to be provided are set forth below together with the applicable monthly
charge for each such service.
Services Monthly Charge
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Servicing of Permits and Licenses $ 700.00
Servicing of Non-Assignable Contracts and Leases $ 700.00
Servicing of EFT Transfers and Letters of Credit $ 500.00
4. OUTSIDE SERVICES; ADJUSTMENTS TO CHARGES. The charges for the foregoing
services to be performed hereunder shall be all-inclusive of supplies
and utilities required for such services, provided, however, that, if
the level of activity for any service should increase above the level
required prior to the date hereof, the party providing such service
(the "providing party") shall have the right to charge the other party
for the additional supplies and utilities being used, on a cost-plus
10% basis. In the event that the providing party is required to retain
outside consultant/contractor assistance to perform any of the services
hereunder, the providing party shall first obtain the consent of the
other party to such retention and the other party shall pay directly
the fees of such consultant/contractor. The providing party shall not
be held responsible for the performance of such consultant/contractor
services and the other party assumes the risk thereof. At any time the
other party desires reports, software, files or the like, the providing
party shall provide them to the other party at cost.
The services to be performed hereunder shall be performed and used in
compliance with the applicable provisions of the Distribution
Agreement.
The parties hereto agree that once every six (6) months they will
review the foregoing monthly
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charges and, if it is mutually determined in good faith that certain
monthly charge(s) do not correctly compensate the providing party for
the service(s) rendered, the monthly charge(s) shall be increased or
reduced, as the case may be.
5. CONTRACTUAL RELATIONSHIP. The relationship between Realty and Marketing
under this Agreement shall be that of principal and agent in respect of
the services to be performed hereunder. In no event is the relationship
of the parties intended to be that of employer and employee and in no
event is either party to be deemed or purported to be the partner or
joint venturer of the other for any purpose whatsoever.
6. TERM. The term of this Agreement shall be one (1) year from the date
hereof, and shall renew automatically for successive periods of one (1)
year each, PROVIDED, HOWEVER, that, upon thirty (30) days notice (i) to
Realty, Marketing shall have the right to terminate any or all of the
services set forth in Paragraph 1; and (ii) to Marketing, Realty shall
have the right to terminate any or all of the services set forth in
Paragraph 3. In the event of partial termination, the monthly charge
for such terminated service shall cease upon the effective date of the
partial termination. Realty understands and agrees that certain
services (e.g. Data Processing) cannot be terminated if other services
(e.g. Accounting ) are to continue and that "Office Services" cannot be
terminated while Realty is subleasing office space in the Jericho
Building. Upon the termination of all services, payment therefor and
payment of all consultants/contractors, this Agreement shall terminate.
7. LIMITATION OF LIABILITY. Neither party shall have any liability
whatsoever to the other party or to any third party for any loss,
liability, damage, cost or deficiency (collectively "Losses"), or for
any claim for Losses, including, without limitation, Losses or claims
for personal injury, death or property damage, warranty, tort or
products liability, resulting from, caused by or arising out of a
party's performance under this Agreement except for claims arising out
of the negligence or willful default or breach of such party hereunder.
In no event shall any party have liability to the other party or to any
third party for indirect, special or consequential damages or loss of
profits (except with respect to its willful default or breach), or for
punitive damages for any reason whatsoever.
8. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by
facsimile transmission, telexed or mailed by overnight delivery service
or by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice; provided that
notices of a change of address shall be effective only upon receipt
thereof):
(a) if to Getty Realty Corp.:
000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
(b) if to Getty Petroleum Marketing Inc.:
000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
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9. ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be
assigned by any party hereto without the prior written consent of the
other party (other than to an affiliate of Marketing ). Any purported
assignment in violation of the provisions hereof shall be void.
10. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of New York (regardless of the laws that might otherwise govern
under applicable New York conflict of laws principles) as to all
matters, including but not limited to matters of validity,
construction, effect, performance and remedies.
11. SUITS IN NEW YORK. The parties agree that any action or proceeding
relating in any way to this Agreement shall be brought and enforced in
the Supreme Court of the State of New York for Nassau County or the
United States District Court for the Eastern District of New York and
the parties hereby waive any objection to jurisdiction or venue in any
such proceeding commenced in such court.
12. COUNTERPARTS. 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.
13. INTERPRETATION. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
14. SEVERANCE. In the event that any provision of this Agreement is
declared illegal, invalid or unenforceable or contrary to law, it shall
not affect any other provision in the Agreement.
15. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter
hereof. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the transactions
contemplated hereby.
IN WITNESS WHEREOF, each of Realty and Marketing has caused this
Agreement to be executed by its duly authorized officer as of the date
first above written.
GETTY REALTY CORP.
By:
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Xxx Xxxxxxxxx, President
GETTY PETROLEUM MARKETING INC.
By:
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Xxxxxxx X. XxXxxxxxxxx, President
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