EXHIBIT 10.35
PREMISES LEASE
SOUTHWEST CONVENIENCE STORES, LLC, ("Lessor") and SCS Beverage, Inc.,
("Lessee") agree:
1. The licenses premises for each of the liquor licenses shown on
Exhibit A are located in the State of New Mexico. Lessor is the owner of each of
the liquor licenses premises and is authorized to operate the seventeen (17) New
Mexico Liquor Licenses (the "Licenses") shown on Exhibit A. Lessee under a
Purchase Agreement (herein so called) with Lessor, will be the owner of the
Licenses upon the completion of the transfer of ownership of the Licenses by
the New Mexico Alcohol and Gaming Division ("AGD"). Lessor by this agreement
leases to Lessee the Licenses premises shown on Exhibit A.
2. Licensed Premises. Lessor grants to Lessee, the non-exclusive right
to use the licensed premises shown on Exhibit A as the Licensed Premises of the
Licenses for the conduct of the Licensed Business (as defined below). Lessor
grants to Lessee that degree of direct control over the Licensed Premises as
required by the New Mexico Liquor Control Act to dispense alcoholic beverages at
each of the Licensed Premised for the Licensed Business ("Licensed Business").
3. Term. The term of this Agreement shall begin upon the date on which
the New Mexico Alcohol and Gaming Division shall have approved the issuance to
Lessee of the Licenses for use at the Licensed Premises and the Closing under
the Purchase Agreement shall have occurred and shall end upon termination of
this Agreement by Lessor, which Lessor may do at any time by 10 days written
notice to Lessee.
4. Rent. Lessee will pay Lessor an annual rental of $1.85 million
payable in equal monthly installments of $154,167.00 for the term of the
Agreement. Lessor and Lessee acknowledge that such annual rental is an estimate
based on the estimated volume of sales of alcoholic beverages at the Licensed
Premises under the Licenses. On December 31 of each year,
Lessor and Lessee shall adjust the total rental payments made during such year
to reflect the actual volume of sales of alcoholic beverages at the Licensed
Premises.
5. Use. Lessee may use the Licensed Premises for the sale and service
of alcoholic beverages and related items to the public. Lessee will permit only
employees of Lessee or employees leased by Lessor to Lessee to operate the
Licensed Business. Lessee will maintain appropriate records, separate from the
records of Lessor, of all alcoholic beverage sales and other transactions of the
Licensed Business. Lessee shall pay all fees, state and federal taxes incurred
in operating the Licensed Business.
6. Insurance and Indemnity. Lessor will acquire and maintain in effect
with respect to the Licensed Premises and the Licensed Business, liability
insurance for property damage and personal injury and death (including host
off-premises liquor liability insurance) from the conduct and operation of the
Licensed Business and shall designate Lessee as an additional insured. Lessor
shall indemnify and hold harmless Lessee, its affiliates, officers, directors,
employees, and representatives from and against any and all liabilities which
may arise from or be attributable to the Licensed Premises and/or the Licensed
Business, including any liabilities attributable to the acts or omissions of
Lessee (including negligence of Lessee and host off-premises liquor liability).
7. Fixtures and Personal Property. Lessee may use all fixtures and
personal property on the Licensed Premises appropriate for operation of the
Licensed Business.
8. Binding Effect. This Agreement is binding on, and the benefits inure
to, Lessor, Lessee, their successors, successors-in-interest, assigns and
transferees, is specifically enforceable, may be modified only in writing, and
is governed by the laws of New Mexico.
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Lessee may not assign this Agreement to any third party without first obtaining
the prior written approval of Lessor, which approval may be arbitrarily and
unreasonably withheld.
9. Notices.
A. Notices will be written and hand delivered or mailed by
certified mail, postage prepaid, return receipt requested, (i) to Lessor:
Southwest Convenience Stores, LLC, Attn: General Counsel, 0000 XXX Xxxxxxx,
Xxxxx 000, Xxxxxx, XX 00000 and (ii) to Lessee: SCS Beverage, LLC, X.X. Xxx 000,
Xxxxxx, XX 00000.
B. Notice served by mail is effective on the date on which the
notice is deposited in the mail.
10. Counterpart and Facsimile. This Agreement may be signed in
counterparts. If this Agreement is signed in counterparts, the signature of the
parties will appear on different or separate pages, but the contract language
and signature blocks will be exactly the same on each of the separate pages. A
facsimile transmission of a signature or signatures on this Agreement will be
deemed original signatures. If this Agreement is signed in counterpart and/or
any of the signatures on this Agreement are pursuant to a facsimile
transmission, the counterparts and/or the facsimile transmission(s) will have
the same effect as an original Agreement with original signatures on the same
signature page.
DATED: May 12, 2003.
Lessor: Lessee:
SOUTHWEST CONVENIENCE SCS BEVERAGE, INC.
STORES, LLC.
By /s/ Xxxxxx X. Xxxx By /s/ Xxxx X. Xxxxxx
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Its Chief Financial Officer Its President
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and Vice President
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