Exhibit 10.36
MARKETING SERVICES AGREEMENT
BETWEEN PETRO AND MOBIL
This Marketing Services Agreement is made on January 30, 1997, between Mobil Oil
Corporation, ("Mobil"), a New York corporation having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, and Petro Stopping
Centers, L.P. ("Petro"), a Delaware limited partnership having its principal
place of business at 0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxx 00000 ("Agreement").
INTRODUCTION
X. Xxxxx is involved in the operation, management, development, franchising
and/or ownership of truckstops and lubrication centers and certain
businesses in connection therewith, including but not limited to the sale
of petroleum products, sundry products and services, and the operation of
restaurants, and any and all activities related to truckstops or in any
manner incidental to any of the foregoing.
B. Mobil is a multinational company engaged and having considerable experience
in the marketing of fuels and petroleum products.
X. Xxxxx wishes to benefit from Mobil's experience and knowledge and is
interested in obtaining advice, assistance and information from Mobil on
matters such as marketing plans and strategies, growth strategies, and
improved financial performance with the view to expanding and improving
Petro's business performance.
AGREEMENT
1. THE SERVICES
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1.1 Mobil will provide advice and assistance to Petro on matters
pertaining to the distribution and marketing of fuels and petroleum
products as more particularly set out in Schedule A of this Agreement
(as may be amended by the parties from time to time) ("the Services").
1.2 Petro will provide, at no cost to Mobil, office space in its El Paso
office and adequate administrative support for three Mobil employees
(including the Loaned Employee as that term is defined in Schedule A).
1.3 Petro will hire and employ, at its sole cost, two accounting clerks to
report to and assist the Mobil employee with the title Supervisor,
Branded Accounting.
2. ADDITIONAL SERVICES
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2.1 In the event it is determined at any time by the Petro Board,
Executive Committee or Operating Committee that outside resources,
consulting or other services, are needed to support Petro, either on
an on-going basis or on a project basis, Mobil will be given
preference to provide such resources or services as it is able on
commercially reasonable terms.
3. FEES
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3.1 As compensation for the Services provided by Mobil, Petro shall pay to
Mobil the Marketing Services Fees and costs as set out in Schedule B
of this Agreement (as may be amended by the parties from time to time)
("the Marketing Services Fees").
4. TAXES
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4.1 Income taxes arising from the payment to Mobil of the Marketing
Services Fees are to be borne by Mobil.
5. ADVISORY NATURE
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5.1 The Services to be performed by Mobil under this Agreement are solely
advisory in nature, and Mobil is not responsible or liable under this
Agreement for the conduct of Petro's business or for the success, or
otherwise, of it.
5.2 Mobil shall perform all Services as an independent contractor to
Petro. Mobil is not an agent or representative of Petro and, unless
authorized to do so by Petro , has no authority to act for or to bind
Petro without its prior written consent.
6. TERM AND TERMINATION
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6.1 This Agreement shall commence as of the Closing Date (as such term is
defined in the Omnibus Agreement, dated as of October 18, 1996, as
amended, among Petro, Mobil Long Haul Inc. and the other parties
thereto) and continue in effect for an initial term of 10 years. This
Agreement will automatically be extended for any number of additional
one-year periods unless, at least three months prior to the expiration
date of the initial term or any extension period, a party notifies the
other party in writing of its intention to terminate the Agreement,
whereupon this Agreement will terminate on the relevant expiration
date.
6.2 Mobil may terminate this Agreement upon notice to Petro:
(a) if there is any material change in the nature of Petro's business
or ownership of its assets,
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(b) if, in Mobil's sole opinion, to continue the Agreement would
adversely affect Mobil's highly regarded brand name or reputation,
(c) if there is any material change in the ownership of the
partnership interests in Petro or in the management of Petro, or
(d) if there is a breach of this Agreement by Petro which is not
rectified within fourteen (14) days of receiving written notice of
such breach from Mobil.
6.3 Notwithstanding anything contained herein to the contrary, 1) Petro
may terminate this Agreement on thirty (30) days prior written notice
in the event that neither Mobil nor any Mobil Affiliate (as such term
is defined in Section 9.2 below) holds an equity interest in Petro and
2) Mobil may terminate this Agreement at any time upon sixty (60) days
written notice to Petro.
7. CONFIDENTIALITY
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7.1 All information and advice furnished to Petro under this Agreement and
derived from or based on Mobil research, technology, analysis,
experience, mode of operation, methodology or practice, together with
all information and advice embodied in manuals, studies, audio or
visual aids, training materials, any other documents or any written or
verbal communications, shall, if designated by Mobil as proprietary or
confidential, be regarded and treated as information proprietary to
Mobil, and shall not be duplicated, published or otherwise disclosed
by Petro, its directors, officers and employees to any third party
without the prior written approval of Mobil. Petro shall take
appropriate measures to safeguard the confidential nature of such
proprietary information and shall prevent unauthorized access thereto
at all times during the term of this Agreement. Upon termination of
this Agreement for any cause, Petro shall return to Mobil all such
proprietary information, including any and all copies. The obligations
of confidentiality and non-disclosure contained in this Section 7.1
continue in full force and effect for a period of three years beyond
any termination or expiration of this Agreement.
7.2 For purposes of Section 7.1, "confidential information" shall not
include information which is or becomes publicly available,
information acquired on a non-confidential basis, information approved
for publication by Mobil or information disclosed pursuant to a court
order so long as Petro seeks a protective order to protect such
information from further disclosure.
7.3 The provisions of Sections 7.1 and 7.2 shall be mutual. Mobil shall
observe and be bound by the same obligations as to confidential and
proprietary information of Petro as are required of Petro to Mobil in
Sections 7.1 and 7.2 above.
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8. FORCE MAJEURE
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8.1 Neither Mobil nor Petro is liable for, or for any loss or damage
resulting from, any delay in performing or for failure to perform any
of its obligations under this Agreement (other than the obligation to
make payments) to the extent that delay or failure is caused in any
substantial part:
8.1.1 by compliance with any order, request or control of any
government or governmental authority or person purporting to
act for either; or
8.1.2 by anything beyond its immediate control including, but without
limitation, strikes, lockouts, acts of God, war and public
disorder.
8.2 If either party's delay in performing or failing to perform its
obligations under this Agreement is caused by any event referred to in
Section 8.1, and the delay or failure is not remedied within six (6)
months of the delay or failure first occurring, either party may
terminate this Agreement by giving the other thirty (30) days' written
notice.
9. MISCELLANEOUS
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9.1 This Agreement is entered into in good faith. If any dispute arises as
to the validity, interpretation or performance of this Agreement or of
any obligation under it, the parties undertake in good faith to
attempt to resolve such dispute on amicable terms, failing which
either party may refer the dispute to a court having jurisdiction in
Delaware. This Agreement shall be subject to and governed by the laws
of the State of Delaware regardless of applicable conflict of laws
rules or principles, or the fact that either or both of the parties
now is or may become a resident of a different state or county.
9.2 Neither party may assign this Agreement or any part of it without the
prior written consent of an authorized representative of the other
party; provided, however, that Mobil may assign all or any part of its
rights and obligations under this Agreement to an Affiliate without
Petro's consent but upon notice to Petro. For purposes of this
Agreement, "Affiliate" means a company more than 50% of the voting
stock of which is owned directly or indirectly by Mobil Oil
Corporation or Mobil Corporation.
9.3 All notices and other communications under this Agreement are to be in
writing and are deemed given when delivered personally by hand against
receipt, or by facsimile transmission, or by registered mail (return
receipt requested), postage prepaid, to the parties at the following
addresses (or to such other address as a party may have specified by
notice to the other party according to this provision):
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Notice to Mobil: Notice to Petro:
Mobil Oil Corporation Petro Stopping Centers, L.P.
0000 Xxxxxxx Xxxx 0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000 Xx Xxxx, XX 00000
ATTN: Manager, Distillate Business ATTN: Xxxxx Xxxxxxxx, Xx.
or Sr. V.P. Marketing Operations
With a copy to: With a copy to:
Petro Holdings GP Corp. Xxxxxxx X. Xxxxxxx, Esq.
c/o Chartwell Investments Kemp, Smith, Xxxxxx & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx 0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xx Xxxx, XX 00000-0000
9.4 This Agreement constitutes the entire understanding and agreement
between the parties with respect to the subject matter hereof, and
supersedes any and all such inconsistent prior agreements and
understandings, whether written or oral, between the parties.
9.5 If any provision of this Agreement is finally determined by a court of
competent authority to be invalid or unenforceable, such invalidity or
unenforceability does not affect the other provisions of this
Agreement.
9.6 Except as may otherwise be provided, the failure by a party to enforce
any of its rights under this Agreement is not deemed to be a waiver of
such rights, unless such waiver is an express written waiver which has
been signed by an authorized representative of the waiving party.
Waiver of any one breach is not deemed to be a waiver of any other
breach of the same or any other provisions of this Agreement.
9.7 This Agreement may only be modified or amended in writing signed by
authorized representatives of both parties.
[The next page is the signature page]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement the day and year first above written.
MOBIL OIL CORPORATION
/s/ X. X. Xxxxxx By:/s/ Xxxx X. Xxxxxxx
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Witness Title: Attorney-in-fact, Manager, Distillate
Business
PETRO STOPPING CENTERS, L.P.
/s/ Xxxxxx Xxxxxx BY: /s/ Xxxxx X. Zine
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Witness
Title: Executive Vice President and
Chief Financial Officer
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