Supply Contract
Exhibit
10.44
This
Supply Contract (the "Contract") made and
entered into between ATLANTIS PETROLEUM, LLC, a Delaware limite liability
company with a
business address of 000 X Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx, XX 00000
(hereinafter called "Seller") and ALL AMERICAN PLAZAS, INC., a Delaware
corporation with a business address of 0000 Xxxx Xxxxxxx Xx., Xxxxxxxxx, XX
00000 (hereinafter called "Purchaser".)
WITNESSETH
In
consideration of the mutual promises herein contained, Seller shall sell and
deliver to Purchaser at the locations listed on Attachment "A" ("Location" or
"Premises"), and Purchaser shall purchase, receive and pay for unbranded or
branded product(s) under the trademarks, service marks, trade names, brand
names, trade dress, logos, color patterns, color schemes, design schemes,
insignia, image standards or other brand identifications designated by Seller of
the kind and in the quantities and under the terms and conditions specifically
set forth in the Commodity Schedule(s), Attachment B, annexed hereto and made a
part hereof. Seller's suppliers of the products to be delivered hereunder are
referred to hereinafter as the "Supplier."
1. Duration.
(a) This
Contract, effective as May 8, 2008 ("Effective Date"), shall continue for a term
of three (3) years (the "Term"), beginning on the 8th day of May, 2008 and
continuing in effect through the 7th day of
May, 2011.
(b) Unless,
after good faith discussions, a renewal or extension of this Contract is agreed
to in writing by the parties at least sixty (60) days in
advance of-the end
of the Term, the Contract shall terminate at the end of the Term.
2. Products. The
following Commodity Schedule(s) (Attachment B), forming a part of this Contract
was/were affixed at or before the signing hereof.
COMMODITY
SCHEDULE (Check all that apply)
___ Motor fuel
x Diesel
___ Kerosene
___ Heating
Oi1
___ Off Road Fuel
By mutual
agreement, this Contract may be amended from time to time by adding other or
additional schedules, substituting revised schedules or by deleting one or more
items or provisions from any Commodity Schedule(s) listed hereinabove.
Additional and revised schedules shall be so marked and initialed by an
authorized representative of Seller and by Purchaser and shall be affixed to and
become a part of this Contract from and after the date appearing on such
additional or revised schedule(s). Deletions shall be made by notice given as
provided herein and shall be effective when accepted.
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3. Ouantity. Seller
shall sell to Purchaser and Purchaser shall purchase from Seller all of
Purchaser's diesel fuel requirements at the Locations on Attachment A; provided,
Purchaser shall have the right to sell one or more of the Locations whereupon
the estimated volumes set forth in Attachment 13 shall be adjusted. The
product(s) covered by this Contract are shown on the applicable Commodity
Schedule. However, during any period of this Contract for which the amount of
any such product(s) that Seller is required to deliver to Purchaser is
prescribed by government rules, regulations or orders, the quantity of such
product(s) covered by this Contract may be curtailed by Seller upon written
notice from Seller to Purchaser.
4. Price/ Method of
Payment.
(a) The price
of the products) covered by this Contract shall be as stated in the applicable
Commodity Schedule(s). Purchaser agrees to pay by electronic funds transfer
("EFT") or any other means requested by Seller in its sole discretion for all
diesel fuels delivered to Purchaser by Seller under the terms of this Contract.
Payment for each load shall be made as set forth in paragraph (b)
below.
(b) All
amounts payable by Purchaser to Seller shall be paid in the two following
methods:
(i) First,
Purchaser shall arrange for all payments (other than cash), e.g., credit card,
"Comdata," "T -Checks" and other electronic forms of payment and deposits for
monies owed to Purchaser for purchases at the Locations, to be paid directly to
Seller's account ("Automatic EFT Payments"). Purchaser and Seller will provide
each other with all information and authorization necessary to arrange for the
automatic payment of these funds to Seller's account; and
(ii) Second,
beginning thirty (30) calendar days from the Effective Date and continuing on an
ongoing basis thereafter during the Term of this Agreement, to the extent the
Automatic EFT Payments on any given day either (i) do not cover at least ninety
percent (90%) of the amounts owed by Purchaser to Seller for deliveries of
product to the Locations during the prior thirty (30) days) ("Deficiency"); or
(ii) exceed the amounts owed by Purchaser to Seller for deliveries of product to
the Locations during the prior thirty (30) days) ("Excess"), upon Seller's or
Purchaser's delivery of written or verbal notice to the other party of such
Deficiency or Excess, Purchaser and Seller shall meet to (A) resolve the
Deficiency or Excess, as the case may be; (B) adjust or recalibrate the method
of payment to remove any Deficiency or Excess in the future; and (C) arrange for
either Purchaser's immediate payment of additional funds to Seller to eliminate
the Deficiency or Seller's reimbursement of funds to Purchaser to eliminate the
Excess. Purchaser and Seller will establish a commercial accounts with financial
institutions that provides EFT services, and payments intended to eliminate such
Deficiencies or Excesses will be made by electronic transfers of funds between
Purchaser's and Seller's accounts. Purchaser shall not use, or permit to be
used, said commercial account for personal, family, or household purposes.
Purchaser and Seller will provide each other with all information and
authorization necessary to arrange for such electronic payments.
5. Control. Purchaser is
an independent contractor with the right and obligation to direct and control
the business operation at the Premises, including the establishment of the
prices at which products and merchandise are sold. Purchaser has no authority to
employ anyone as an employee or agent of Seller for any purpose.
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6. Liability. Seller
shall not be liable to Purchaser or Purchaser's agent for any damage to or loss
of property, or for injury to or death of persons or for the violation by
Purchaser or any other person of any governmental statute, law, regulation,
rule, or ordinance, arising from the operation or activities of Purchaser or any
other person pursuant to this Contract. Purchaser shall indemnify, protect,
defend, and save Seller and Supplier harmless from and against any and all
losses, claims, liabilities, environmental cleanup costs, fines, penalties,
suits and actions, judgments and costs, including attorneys' fees and the costs
of litigation, which shall arise from or grow out of any injury to or death of
persons, or damage to or loss of property, or violation by Purchaser or
Purchaser's agent of any governmental statute, law, regulation, rule, or
ordinance, directly or indirectly arising out of, or resulting from, or in any
way connected with (i) Purchaser's performance of this Contract, (ii) operation
of Purchaser or activities of any other person at the Premises, or (iii) the
condition of the Premises or of the adjoining streets, sidewalks or ways, irrespective of whether such
injury, death, damage or loss is sustained by Purchaser or any other person,
firm or corporation which may seek to hold
Seller or Supplier liable. The existence or non-existence of any insurance that
may be required under this Contract will not limit Purchaser's indemnity or
other obligations under this Contract.
7. Credit.
(a) In the
event of insolvency of Purchaser, assignment for benefit of creditors, the
institution of bankruptcy, insolvency, reorganization, receivership, debt
adjustment, or liquidation proceedings, by or against Purchaser, or failure of
Purchaser to perform any of the obligations of payment in accordance with the
terms of payment established by Seller from time to time, Seller shall have the
option without notice or demand upon Purchaser to declare an event of default,
and upon any such default Seller may declare all of Purchaser's indebtedness to
Seller immediately due and payable. Thereafter Seller may proceed to enforce
payment and may exercise any and all rights available to it.
(b) Purchaser
understands and agrees that, in the event of a default or breach of this
Contract for any reason, Seller shall have the right to exercise Seller's lights
under any and all instruments executed by Purchaser to secure its obligations
under this Contract.
8. Failure To
Perform.
(a) Any
delays in or failure of performance of either party hereto shall not constitute
default hereunder or give rise to any claims for damages if and to the extent
that such delay or failure is caused by occurrences including, but not limited
to, acts of God or the public enemy; expropriation or confiscation of facilities; compliance with any order
or request of any governmental authority; acts of war, rebellion or sabotage or
damage resulting there from; embargoes or other import or export
restrictions; fires, floods, explosions, accidents, or breakdowns; riots;
strikes or other concerted acts of workers, whether direct or indirect; or any
other causes whether or not of the same class or kind as those specifically
above named which are not within the control of the party affected and which, by
the exercise of reasonable diligence, said party is unable to prevent or
provide against. A party whose performance is affected by any of the causes set
forth in the preceding sentence shall give prompt written notice thereof to the
other party.
(b) Seller
shall be under no obligation to make deliveries hereunder at any time when in
Seller's sole judgment it has reason to believe that the making
of such delivery would be likely to cause strikes to be called against it or
cause its properties to be picketed.
(c) Seller
shall not be required to make up deliveries omitted on account of any of the
causes set forth in this paragraph.
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(d) Nothing
in this paragraph shall excuse Purchaser from making payment when due for
deliveries made under the Contract.
9. Determination of Quantity
and Ouality. The quantity and quality of product(s) sold hereunder shall
be for all purposes conclusively deemed to be the quantity and quality set forth
in Seller's xxxx of lading or other document of delivery unless, within seventy
two (72) hours of the time of delivery, Purchaser delivers to Seller written
notice of any claimed shortage in quantity or claimed deviation in quality, or
where discovery of any such shortage or deviation could not reasonably have been
discovered by careful inspection at the time of delivery, within three (3) days
after discovery. Time is of the essence in complying with this
provision.
10. Quality, Specification or
Name of Product. Seller shall have the right at its sole discretion at
any time during the life of this Contract, upon prior written notice to
Purchaser, to (a) change or alter the quality, grade, or specifications of any
product(s) covered by this Contract or (b) discontinue or reduce the
availability of any such product(s) if such change, discontinuation or reduction
is effected by Supplier. In the event of any discontinuation or reduction of
product deliveries, for the duration of such reduction or discontinuance
Purchaser shall be relieved of its
obligation to purchase all of its product requirements as set forth in
Attachment B and Purchaser shall be permitted to purchase its product
requirements from third party suppliers to the extent Seller is unable to
furnish Purchaser all of its product requirements. Seller shall give Purchaser
written notice of discontinuance or reduction of the manufacture of any
product(s) covered by this Contract. The Contract shall terminate as to such
product(s) when such notice is effective.
11. Assignment. Purchaser's
interest in this Contract shall not be transferred or assigned by Purchaser in
whole or in part, directly or indirectly, without the prior written consent
of
Seller, which consent shall not
be unreasonably withheld. As a condition for Seller's consent to the
transfer or assignment of Purchaser's interests under this Contract Purchaser
must provide documentation as to the credit worthiness of the potential
assignee. Assignee will provide Seller with requested security deposit, Seller
shall also have the right to charge an
assignment fee of Seven Thousand Five Hundred Dollars ($7,500.00).
Nothing contained in the foregoing sentence shall limit Seller's right to impose
other conditions or requirements for its consent under this paragraph. Seller
may assign this Contract in whole or in part upon ten (10) days' prior written
notice to Purchaser. If Purchaser assigns this contract, in whole or in part,
without prior approval from Seller, Seller may terminate or end its further
obligations to deliver product but the Contract itself is not terminated and
all
of Seller remedies and
rights will stay in
force.
12. Environmental
Compliance
(a) Purchaser
shall operate the Locations in such a way as to protect Public Health and
Safety.
(b) Purchaser
shall become informed about and comply with all local, state and federal laws,
statutes, regulations and ordinances related to environmental protection or
compliance relevant to Purchaser's operations at the Premises, whether
currently in effect or which may come into effect in the future.
(c)
Purchaser
shall comply with all
applicable local state and federal underground storage tank ("UST")
compliance requirements, whether currently in effect or which may come into
effect in the future, including, but not limited to: (i required inspections of
any release detection equipment for
UST and product lines; (ii) required inspections of any automatic tank
gauging equipment; and (iii) maintenance and required inspections of any vapor
recovery equipment. Purchaser will provide Seller with a
completed ATTACHMENT C, a CERTIFICATION OF COMPLIANCE for Underground Storage
Tanks.
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13. Notices. All written notices required or permitted to be given by this Contract shall be. deemed to be duly given if delivered personally or sent by certified or overnight mail to Seller or to Purchaser, as the case may be, at the address set forth above or to such other address as may be furnished by either party to the other in writing in accordance with the provisions of this paragraph. The date of mailing shall be deemed the date of giving such notice„ except for notice of change of address, which must be received to be effective.
14. Termination.
(a) If
Purchaser defaults on any portion of this Contract Seller may elect to terminate
its obligations to provide product to Purchaser without terminating its rights
or remedies under this Contract, including any liquidated damages under Section
2 of Attachment B. Seller may terminate the obligations but not its rights under
this Contract; (i) if Purchaser makes any material false or misleading statement
or representation which induces Seller to enter into this Contract, or which is
relevant to the relationship between the parties hereto; (ii) if Purchaser
becomes insolvent or commits an act of bankruptcy or takes advantage of any law
for the benefit of debtors or Purchaser's creditors, or if a receiver is
appointed for Purchaser; (iii) if possession of the business Location(s) of the
Purchaser is interrupted by act of any government or agency thereof; (iv) if
Purchaser fails to pay in a timely manner any sums when due hereunder; (v) if
Purchaser defaults in any of its obligations under this Contract; (vi) under the
circumstances described in causes for termination by Seller elsewhere in this
Contract; or (vii) if Purchaser engages in fraud or criminal misconduct relevant
to the operation of the business of the Purchaser.
(b) Purchaser
may terminate this Contract if it sells all of the Locations to one or more
third parties unrelated, directly or indirectly, to Purchaser; provided,
Purchaser will not enter into an agreement (written or verbal) to sell any of
the Locations without fast entering into good faith discussions with Seller for
the sale of the Location(s) by Purchaser to Seller. Purchaser and Seller
acknowledge Seller is not acquiring a "right of first refusal" under this
paragraph (b) but is acquiring the right to have Purchaser and Seller negotiate
in good faith for the purchase and sale of one or more of the Locations before
Purchaser agrees to sell such Location(s) to a third party.
(c) Termination;
of this Contract by either party for any reason shall not relieve the parties of
any obligation theretofore accrued under this Contract.
15. Accord. The parties
to this Contract have discussed the provisions herein and find them fair and
mutually satisfactory and further agree that in all respects the provisions are
reasonable and of material significance to the relationship of the parties
hereunder, and that any breach of a provision by either party hereto or a
failure to carry out said provisions in good faith shall conclusively be deemed
to be substantial.
I6. Nature of Agreement. In
consideration of the granting and execution of this Contract, it is understood
and agreed that there shall be no contractual obligation to extend or renew the
period or terms of this Contract in any way, and the parties agree that this
Contract shall not be considered or deemed to be any form of "joint venture" or
"partnership" at the Premises of Purchaser or elsewhere.
17. Express Warranties. Seller
(a) warrants it will convey good title to the product(s) supplied hereunder free
of all liens; and (b) will provide the same warrant of merchantability for the
product(s) as received by Seller from its Supplier. THE FOREGOING WARRANTIES ARE
EXCLUSIVE AND ARE
IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR
IMPLIED. THE WARRANTY OF MERCHANTABILITY, IN OTHER RESPECTS
THAN EXPRESSLY SET FORTH HEREIN, IS EXPRESSLY EXCLUDED AND
DISCLAIMED.
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18. Entire Agreement;
Modifications. This Contract cancels and supersedes all prior written and
unwritten agreements, attachments, schedules, appendices, amendments, promises,
and understandings between the parties pertaining to the matters covered under
this Contract, except any indebtedness owed to Seller by Purchaser, and is a
final, complete and exclusive statement of the agreement between Seller and
Purchaser. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES
AFFECTING IT. No amendment, deletion, modification, or alteration to this
Contract shall have any effect unless and until made in writing and signed by an
authorized representative of Seller and by Purchaser. EXECUTION OF THIS CONTRACT
BY PURCHASER IS AN ACKNOWLEDGEMENT THAT NO REPRESENTATION NOT SET FORTH IN
WRITING HEREIN HAS BEEN MADE OR RELIED UPON BY PURCHASER.
19. Damages. NO CLAIM
SHALL BE MADE UNDER THIS CONTRACT FOR SPECIAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES, EXCEPT AS PROVIDED OTHERWISE BY LAW.
20. Seller's Equitable
Remedies/Attorneys' Fees.
(a) It is
hereby agreed to and understood by the parties to this Contract that Seller
shall be entitled to recover from Purchaser all reasonable attorneys' fees and
other legal costs incurred by Seller to secure or protect its rights under this
Contract or to enforce the terms thereof, whether at law or in equity. Seller
shall also be entitled to reimbursement by Purchaser for all attorney's fees and
litigation expenses incurred to enforce any termination of this
Contract.
(b) Seller's
termination of this Contract shall not prejudice Seller's right to seek monetary
damages or equitable relief against Purchaser. All powers and remedies available
at law and in equity, including the right to terminate this Contract under the
PMPA, shall be cumulative and not exclusive of any other powers and remedies
available by virtue of this Contract, and no delay or omission of Seller in
exercising any right or power accruing upon any breach of, or default under any
provision of this Contract shall impair any other or subsequent breach or impair
any rights or remedies consequent thereto.
21. Purchases from Other
Suppliers. Purchaser understands and agrees that it is obligated to
purchase all its diesel fuel requirements for the Locations from Seller. In the
event that Purchaser purchases any diesel fuel products from a supplier other
than Seller for any reason other than as permitted under Section 10 above,
Purchaser shall pay Seller an amount equal to $0.025 (2 1/2 Cents) for each
gallon of diesel fuel purchased from such other supplier; provided, in the
event, for any period lasting forty five (45) days or longer, the price paid for
product(s) by Purchaser under Attachment B is more than $0.03 (three cents)
higher than Sunoco's posted rack price for unbranded diesel in the same
geographic market ("Sunoco Price"), Purchaser
shall be permitted to purchase product(s) from a third party supplier for the
period that Seller's
lowest price under
Attachment B remains more than
$0.03 (three cents) above the Sunoco Price following the end of said
forty five (45) day period.
Executed
this 6 day of May 2008.
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| SELLER: | PURCHASER: |
| ATLANTIS PETROLEUM, LLC |
ALL
AMERICAN PLAZAS, INC.
|
|
000
X
XXXXXXXXXXXX XXXX, XXXXX 000
|
0000 XXXX XXXXXXX XX |
| XXXXX, XX 00000 | MYERSTOWN, PA 170 |
| By: /s/ Xxxxxx X. Xxxxx, | By: /s/ Xxxxxxx Xxxxx |
|
Title: XXXXXX X.
XXXXX, CFO
|
Title: CEO, Able Energy, Inc. |
| Witness: _________________________ | Witness: _______________________ |
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