Exhibit 10.28
PROPERTY LEASE AGREEMENT
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BE IT KNOWN, that, before the undersigned Notary(is) Public in the State of
Texas, and in the presence of the undersigned competent witnesses, personally
came and appeared:
PETRO STOPPING CENTERS, L.P., a limited partnership of the State of
Delaware, whose present mailing address is declared to be ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, herein represented by its duly authorized
Executive Vice-President, ▇▇▇▇▇ ▇. Zine, in accordance with a resolution of
the partners thereof, hereinafter referred to as "Lessor",
who hereby leases and delivers unto:
PETRO TRUCKSTOPS, INC., a corporation of the State of Delaware, whose
present mailing address is declared to be ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, herein represented by its duly authorized President,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., in accordance with a resolution of the board of
directors thereof, hereinafter referred to as "Lessee",
hereby accepting and leasing for itself, its successors and assigns, and
acknowledging due delivery and possession thereof, the Shreveport Facility,
constituting the land and improvements of the Petro Stopping Center in
Shreveport, Louisiana, less and except those parcels of property upon which are
located the truck wash, the truck scales and the truck lube/repair facility,
said Shreveport Facility being located on the following described property, to-
wit:
See property description in Exhibit "A" made a part hereof for all
purposes.
Together with all buildings and structures located on the property
described in Exhibit "A", and all of the contents of said furniture, fixtures,
buildings, sign poles, equipment, personal property and other structures and
improvements, less and except the truck wash, the truck scales and the truck
lube/repair facility, hereinafter referred to as the "Premises".
Provided, however, that Lessee hereby acknowledges the reservation of a
non-exclusive easement in, to, over and across all portions of the Premises for
the use, enjoyment, ingress, egress and access by the customers, invitees,
agents and employees of Lessor and any other tenants of the Premises, including
without limitation those utilizing and providing the services at the truck wash,
truck scales, truck lube/repair facility, the restaurant and the convenience
store situated on or about the Premises.
NOW, THEREFORE, in consideration of the mutual covenants agreements
contained herein and other valuable consideration, and upon the terms and
conditions hereinafter set forth, this lease is made and accepted by Lessor and
Lessee (sometimes hereinafter referred to as the "Parties") for and in
consideration of all of the terms, conditions and stipulations hereinafter set
forth:
1. TERM: The term of this lease (hereinafter referred to as the
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"Agreement") shall be for a period of three (3) years commencing on the 1/st/
day of July, 1999, with an option, at Lessee's discretion, to renew this
Agreement for three (3) additional three (3) year terms at the expiration of the
initial term hereof
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by giving Lessor written notice of its intent to renew this Agreement at least
ninety (90) days before the expiration of the primary term or any renewal term
that has begun to run.
Both Lessor and Lessee further agree that this Agreement may be terminated
at any time by either party hereto by a party giving the other party written
notice of its intent to terminate this agreement at least sixty (60) days before
the date that said party desires to terminate this Agreement.
2. RENTAL: Lessee agrees to pay to Lessor as rental payments during the
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full term hereof the sum of ONE HUNDRED EIGHT THOUSAND THREE HUNDRED THIRTY-
THREE AND 33/100 DOLLARS ($108,333.33) per month, said rental payment being due
on the 1st day of the month subsequent to the execution hereof and on the first
day of every month thereafter. The rental payment for the month of November
shall be prorated.
All rental payments shall be paid to Lessor on a monthly basis, and shall
be due on or before the 1st of the month. Rental payments shall be remitted to
Lessor's address as provided in the notice paragraph 24 hereof.
Any rental payment received after the 5th day of any month during the full
term hereof shall be considered delinquent. If any rental payment is not paid
on or before the 5th day of any month, Lessee shall pay interest on the unpaid
rent at the simple interest rate of twelve percent (12%) per annum.
3. USE OF PREMISES: Lessee will not carry on or permit upon the Premises
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any offensive use nor allow same to be used for any unlawful or immoral purpose.
Lessee shall use and occupy the Premises only for the purpose of operating a
qualified truck stop facility as defined in LSA-R.S. 27:301 et seq. and the
Louisiana Administrative Code, Title 42:Part XI:Section 2401 et seq., as
presently existing, and in any subsequent amendments thereto, and for such uses
as are related thereto but for no other purpose whatsoever.
4. LAW, ORDINANCES AND REGULATIONS: Lessee hereby agrees to comply with
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any and all laws of the State of Louisiana and all lawful federal, state and
local ordinances and regulations pertaining to the operation of the business on
the Premises, and shall obtain all necessary licenses or permits to do business
on the Premises which may be required by any municipal or parish ordinances,
state laws or regulations, governmental authority, or otherwise, and shall pay
all fees in connection therewith as well as fees imposed by reason of inspection
of the Premises or the equipment situated therein.
5. WARRANTY OF PEACEABLE POSSESSION: Lessor covenants and agrees with
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Lessee that Lessor has the right to lease the Premises, that, except as
indicated in the mortgage and conveyance records of the Parish of Caddo, the
same is free and clear of any and all liens, claims and encumbrances, and that
Lessor shall defend the same against all such claims whatsoever. Lessor further
covenants and agrees that Lessee, by paying all rental payments and by observing
and fulfilling the covenants and obligations of this
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Agreement, shall lawfully and peaceably, hold, occupy and enjoy the Premises
during the initial term hereof and any term thereafter, without any hindrance or
molestation by Lessor, or by any person(s) whomsoever purporting to claim a
right or interest in the Premises. Lessor does not warrant Lessee against
disturbances by any person(s) not claiming any rights or interest in the
Premises.
6. ASSUMPTION OF LIABILITY: As additional consideration by the Lessee for
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its undertaking herein, and pursuant to the authority of LSA-R.S. 9:3221, as now
existing and as hereafter amended, Lessor fully avails itself of the liability
shifting and limiting provisions thereof, and Lessee, in conformance therewith,
hereby assumes all responsibility for the condition and use of the Premises and
for any buildings or structures now located thereon or hereafter constructed
thereon, and Lessee agrees to hold harmless, indemnify and defend Lessor from
any claims, actions or causes of action which may arise from injuries caused to
persons or property by any defect in the Premises or any building or structure
now located thereon or hereafter constructed thereon, during the term of this
Agreement, or while Lessee occupies the Premises, or which may arise after the
termination of this Agreement from the fault of the Lessee, Lessee's employees,
agents or invitees, to the full extent and in the manner prescribed by law.
7. HOLD HARMLESS: Except as provided in paragraph 8 hereof, Lessee shall
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indemnify, defend and hold harmless Lessor and Lessor's agents from and against
any and all claims, liabilities, losses, damages and actions, including costs
and expenses of defending against same, resulting or alleged to result from any
breach, violation or nonperformance of any covenant or condition hereof,
excepting therefrom any such claims or expenses resulting from the failure of
Lessor to fulfill any of its obligations hereunder.
Except as provided in paragraph 8 hereof, Lessee shall indemnify, defend
and hold harmless Lessor and Lessor's agents from and against the payment of any
and all losses, damages, legal costs and charges, inclusive of attorney's fees,
paid by Lessor and lawfully and reasonably incurred or expended in or about the
prosecution or defense of any suit or other proceeding in the discharging of the
leased premises, or any part thereof, from any lien, judgment or encumbrance
created, or permitted to be created, by Lessee upon or against the Premises, or
any building or structure located thereon, or against Lessee's leasehold
interest in the Premises, and also any costs and charges, inclusive of
attorney's fees, incurred or expended on account of proceedings instituted by
Lessor to obtain possession of the Premises covered by this Agreement after the
termination of this Agreement by forfeiture or otherwise.
Lessee shall indemnify, defend and hold harmless Lessor and Lessor's agents
from and against any and all fines, suits, claims, demands, liabilities, losses,
damages and actions, including costs and expenses of defending against same,
resulting or alleged to result from Lessee's use or occupancy of the Premises
during
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the term hereof and any term thereafter, excepting therefrom any such claims,
losses or expenses resulting from or caused by the negligence of Lessor or
Lessor's agents.
8. UNDERGROUND STORAGE TANKS: Lessee does not assume responsibility for
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the condition of any underground storage tanks or other equipment, pipes,
appurtenant structures or devices used for the storage and dispensation of any
gasoline or petroleum products and Lessor shall indemnify Lessee and hold Lessee
harmless from and against all fines, suits, claims, demands, liabilities, and
actions, including costs and expenses of defending against such claims,
resulting or alleged to result from any breach, violations, or non-performance,
any federal, state, or local rules, laws, or ordinances, including but not
limited to, the State of Louisiana, Department of Environmental Quality, or any
federal authority or agency regulating the storage and dispensation of any
gasoline or petroleum products.
9. MAINTENANCE: Lessee, at its sole cost and expense, shall maintain and
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keep in good repair all portions of the Premises, including without limitation
the roof, foundation and the concrete walkways and parking surface areas
thereof.
In addition, Lessee, at its sole cost and expense, shall maintain all
portions of the interior of the Premises, including without limitation,
plumbing, electrical, piping, fixtures, equipment, painting or decorating of any
kind, and shall be responsible for all glass frames that may be broken or
damaged. Lessee shall also be responsible for the repair, maintenance and
replacement of the heating and air conditioning system in said Premises. Lessee
further agrees to replace the whole or any portion of the sewerage and sanitary
fixtures should the need arise, at its sole cost and expense. Upon expiration
or termination of this Agreement, Lessee shall redeliver possession of the
Premises in as good condition as at the commencement of the term of this
Agreement, reasonable wear and tear only excepted.
Lessee shall not construct or install any signs on the Premises without the
prior written consent of Lessor. Any such signs placed on the Premises by
Lessee shall be and remain the property and responsibility of Lessee, and Lessee
shall cause to be removed from said Premises any and all signs so placed at the
termination of this Agreement so that the Premises will be in the same condition
as before said signs were placed thereon. All signs shall be approved by Lessor
prior to placement on the Premises.
Lessee shall be responsible for keeping the paved parking area of the
Premises clean and free of debris. Lessee shall also be responsible for the
painting and maintenance of any parking stripes that may be placed on said
parking surface, and for the upkeep of the grass on the Premises. Lessee shall
keep the entire Premises free for debris.
10. TAXES AND ASSESSMENTS: Lessee shall, within five (5) days after
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receipt of an invoice from Lessor, reimburse Lessor for all taxes and
assessments applicable to the Premises that are paid by Lessor,
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including without limitation, any ad valorem taxes assessed against the property
underlying the Premises. In case of any default hereof on the part of Lessee in
reimbursing Lessor for taxes, assessments or other amounts herein provided to be
paid, the amount due shall bear interest at the rate of twelve percent (12%) per
annum from the date of the invoice until paid by Lessee. In no event shall such
rate of interest to be charged to Lessee be higher than the maximum rate
permitted by law.
11. ASSIGNMENT, SUBLETTING AND ALTERATION: This Agreement is personal to
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the Lessee, and the Lessee may not assign, sublease or otherwise delegate rights
or obligations hereunder without first obtaining the written consent of the
Lessor.
12. UTILITIES: During the terms of this Lease, Lessee shall pay all
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charges accruing for water, gas, electricity, sewerage and garbage pick-up with
respect to the Premises. Upon its failure to do so, Lessor may, at its option,
pay such charges and, in that event, such charges shall be added to the rental
payable and shall be collectible as rent.
13. DEFAULT; FAILURE TO REMIT RENTAL PAYMENTS; OTHER BREACHES: In the
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case of default in payment of the rent in accordance with the terms hereof or
the non-performance of any of the covenants herein, Lessor may enforce the
performance of this Agreement in any mode provided by law and, in addition
thereto, Lessor may, at its option, declare all of the remaining unpaid
installments of rent immediately due and payable, or terminate this Agreement,
if the non-payment of rent or such default shall continue for a period of
fifteen (15) days after Lessor notifies Lessee of such default and of its
intention to declare all remaining installments of rent due and payable, or to
declare the Agreement forfeited, such notice to be sent by Lessor to Lessee by
certified mail as provided in paragraph 24 hereof, and thereupon (unless Lessee
shall have paid said rent and completely removed or cured said default) all of
said remaining installments of rent shall be due or, at Lessor's option, this
Agreement shall cease and come to an end as if that were the day originally
fixed herein for the right, and without further notice or demand, to re-enter
and remove all persons and Lessee's property therefrom without being deemed
guilty or liable of or for any manner of trespass, and without prejudice to any
remedies for arrears of rent or breach of covenant, and Lessor or Lessor's agent
or attorney may resume possession of the Premises and let the same for the
remainder of the term at the best rent said agent or attorney may obtain, for
the account of Lessee, who shall make good any deficiency, and Lessor shall have
a lien as security for the rent aforesaid upon all goods, wares, chattels,
instruments, fixtures, furniture, appliances, tools and other personal property
which are/may be on the Premises.
In the event of a default of any condition or obligation of this Agreement
on the part of any of the Parties hereto which results in any legal proceeding,
the non-prevailing party shall pay to the prevailing party
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of the litigation all reasonable costs and expenses of the legal proceeding and
any appeal therefrom, including attorney's fees.
14. LIABILITY INSURANCE: Lessee accepts the Premises and all equipment
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and other personal property, fixtures and improvements thereon in their present
AS IS, WHERE IS CONDITION, WITH ALL FAULTS, and hereby assumes responsibility
for the condition of the Premises and equipment, and all property of every kind
which may be on said Premises during the term hereof and same shall be at the
sole risk of Lessee or those claiming under it, and Lessor shall not be liable
to Lessee or any other persons whomsoever for any injury, loss or damage to any
person or property in or upon said Premises, or upon the parking lot, sidewalks
and drives contiguous thereto. Lessee hereby covenants and agrees to assume all
liability for or on account of any injury, loss or damage above described and to
save Lessor harmless therefrom. Lessee obligates and binds itself at all times
during the term of this Agreement to carry public liability and property damage
insurance (owner's, landlord's and tenant's policy) issued by companies
authorized to do business in the state wherein the Premises are situated, with a
rating acceptable to Lessor, and with such coverages and deductibles as may be
acceptable to Lessor, for the protection of Lessor and Lessee, all at Lessee's
sole cost and expense. Lessor shall be named as an additional insured and loss
payee as applicable on all such policies and shall be furnished with copies of
such policies and a certificate certifying that said policies are in full force
and effect at all times during the term of this Agreement.
15. LIENS ON PREMISES: Lessee shall not mortgage, pledge or otherwise
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encumber the Premises, nor permit the Premises to become encumbered by a
mechanic's lien or materialman's lien, and if such mechanic's lien or
materialman's lien be filed against the Premises, Lessee shall discharge same
within ten (10) days after the date of such filing. Notice is hereby given that
Lessor shall not be liable for any labor or material furnished Lessee upon
credit or furnished to anyone else to be employed in or on the Premises and that
no mechanic's or materialman's lien shall attach to or affect the interest of
Lessor in the Premises.
16. FUEL FACILITY EMPLOYEES: As further consideration from the Lessor to
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the Lessee, Lessor agrees to lease all employees of the fuel facility to Lessee.
17. WORKER'S COMPENSATION INSURANCE: In consideration of the lease of the
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employees as provided in paragraph 16 hereof, Lessee agrees to provide, at its
sole cost and expense, worker's compensation insurance on each and every
employee of the fuel facility located on the Premises of the qualified truck
stop facility and employed by Lessee during the full term of this Agreement, and
during any extension(s) hereof. Throughout the term of this lease, Lessee shall
provide Lessor with a certificate of insurance verifying worker's compensation
coverage as required hereinabove.
Page 6
18. CANCELLATION: In the event that Lessee should lose its right to place
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video draw poker devices on any portion of the qualified truck stop facility
operated thereby, or in the event that the original video draw poker truck stop
license application of Lessee shall be finally denied, the Lessee may, at
Lessee's sole option and discretion, cancel this Agreement without any further
liability other than its obligations hereunder to leave all improvements and
alterations made to the Premises.
19. INSPECTION OF PREMISES: Lessee shall, at any time during the term of
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the Agreement, permit inspection by Lessor or prospective tenants of the
Premises. Lessee shall permit signs or other notices, indicating that the
Premises are to be let or are for sale, to be posted or remain on the Premises.
20. FIRE AND EXTENDED COVERAGE INSURANCE; WAIVER OF SUBROGATION: Lessee
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shall keep the Premises insured against fire and explosion with extended
coverage for at least 80% of its full replacement value, such coverage to be for
the benefit of Lessor and any mortgagee of the Premises, and Lessee shall insure
all property owned by it against fire and explosion which is located on or in
the Premises with extended coverage for such amount and with such deductible
amounts as may be required by Lessor, issued by companies authorized to do
business in the state wherein the Premises are situated, with a rating
acceptable to Lessor, all at Lessee's sole cost and expense. Lessor shall be
named as an additional insured and loss payee as applicable on all such policies
and shall be furnished with copies of such policies and a certificate certifying
that said policies are in full force and effect at all times during the term of
this Agreement.
Neither Lessor nor Lessee shall be under obligation to pay any amount to
the other, their heirs, successors or assigns, or to the insurance company
issuing the policy of insurance, even though the loss or damage is caused by the
negligence of the other, their agents, or employees, if such loss or damage
would be the kind covered by a fire, explosion, and extended coverage insurance
policy. Lessor and Lessee each agree to notify their present or future insurer
or insurers that they have waived subrogation against the other during the
entire term of this Agreement and to furnish satisfactory evidence showing that
notice of such waiver has been given. Lessor and Lessee hereby agree to
indemnify and hold the other harmless from any loss sustained because of the
other's failure to carry out the obligations provided in this Agreement relating
to the waiver of subrogation.
21. MODIFICATIONS AND IMPROVEMENTS; PRIOR APPROVAL: Lessee does hereby
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agree that Lessee shall not make any additions, alterations or improvements to
the Premises without the prior written consent of the Lessor. If the Lessor
permits, in writing, additions, alterations or improvements by the Lessee to the
Premises, Lessee agrees that it shall: 1) make such additions, alterations or
improvements in a workmanlike manner and in all respects in accordance with
applicable law; and 2) provide protection against
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liens against the Premises by providing a lien waiver for any and all such
construction costs necessary for the completion of the additions, alterations or
improvements.
All additions, alterations or improvements made by the Lessee with or
without the consent of the Lessor, no matter how attached to the Premises
(except movable trade fixtures), shall become the property of the Lessor, and
Lessee hereby waives all rights to any compensation for such. Notwithstanding
the preceding sentence, however, Lessor and Lessee may agree in writing that
Lessee may retain possession of certain additions, alterations or improvements
made by the Lessee subsequent to the termination or expiration of this
Agreement, provided that said agreement is provided for in writing and said
document is executed by both the Lessor and the Lessee prior to the construction
of any such additions, alterations or improvements to the Premises.
Notwithstanding the aforementioned, Lessor further hereby agrees that
Lessee may take any and all affirmative action as may be necessary to remedy any
non-compliance with the aforementioned gaming laws by making additional
improvements or alterations to the Premises.
22. INTEREST AND ATTORNEY'S FEES: All past due installments of rent or
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other payments due by Lessee to Lessor shall bear interest at the rate of twelve
percent (12%) per annum from date due until paid. In the event Lessee fails to
pay the rent in accordance with the terms of this Agreement or fails to perform
or carry out any of its obligations and covenants hereunder, and if it should
become necessary for Lessor to employ an attorney at law to enforce any of the
terms or conditions of this Agreement or the collection of said rent, then an
additional sum of twenty-five percent (25%) of said amount due shall be paid as
attorney's fees. If no money is due, then reasonable attorney's fees, which in
any event shall not be less than $1000.00, shall be paid by Lessee.
23. AUTHORITY TO TRANSACT BUSINESS: Lessee has all requisite partnership
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or corporate power and authority, if required, to execute, deliver and perform
its obligations under this Agreement. The execution of this Agreement by Lessee
has been duly and validly authorized by all necessary partnership or corporate
action on the part of Lessee, and this Agreement is the valid and binding
obligation of Lessee, enforceable against Lessee in accordance with the terms
hereof.
24. NOTICES: All rental payments hereunder shall be made to Lessor by
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ordinary mail and all notices required to be given to Lessor hereunder shall be
sent by certified mail addressed to Lessor as follows: Petro Stopping Centers,
L.P., Attn: General Counsel, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, or such
address as Lessor may direct from time to time by written notice forwarded to
Lessee by certified mail.
All notices required to be given by Lessor to Lessee shall be sent by
certified mail addressed to Lessee as follows: Petro Truckstops, Inc., Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or such address as Lessee may direct from time to time by
written notice forwarded to Lessor by certified mail.
25. MODIFICATIONS: No change or modification hereof shall be valid or
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binding unless the same is in writing and signed by the party intended to be
bound. No waiver of any provisions of this Agreement shall be valid unless the
same is in writing and signed by the party against whom such waiver is sought to
be enforced; moreover, no valid waiver of any provisions of this Agreement at
any time shall be deemed a waiver of any other provision of this Agreement at
such time, nor shall it be deemed a valid waiver of such.
26. CLAIMS AND DEFENSES: The existence of any claims or causes of action
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against the Lessor by the Lessee shall not constitute a defense to the
enforcement of this Agreement.
27. BINDING EFFECT: This Agreement shall be binding upon and inure to the
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benefit of the Parties hereto, their respective heirs, successors,
representatives, executors, purchasers, administrators and permitted assigns,
subject to the restrictions herein set forth.
28. HEADINGS: It is understood by the Parties hereto that the headings in
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this Agreement are for convenience only and shall not be used to interpret or
construe the provisions hereof.
29. SEVERABILITY: If any provision of this Agreement is held invalid such
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invalidity shall not affect other provisions and to this end, the provisions of
this Agreement are hereby declared severable.
30. CONSTRUCTION OF THIS AGREEMENT: The parties hereto have participated
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jointly in the negotiation and drafting of this Agreement. In the event any
ambiguity or questions of intent or interpretation arise, this Agreement shall
be construed as if jointly drafted by the parties and no presumption or burden
of proof shall arise favoring any of the parties by virtue of authorship of any
of the provisions of this Agreement.
31. NON-DISCLOSURE: Both Lessor and Lessee hereby covenant and agree that
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they will not, directly or indirectly, reveal, divulge, disclose or otherwise
communicate to any person or other entity whatsoever in any manner, excepting
those affiliates, officers, directors, employees, agents and representatives of
either the Lessor or the Lessee who have a reasonable need for access thereto,
any information of any kind, nature or description, relating to or concerning
the obligations, terms and conditions of this Agreement, and except as may
otherwise reasonably be required by either the Lessor or the Lessee in
negotiations for the sale of the business of either party hereto. The parties
agree, however, that notwithstanding the aforementioned non-disclosure, any
party hereto may record an extract of this Agreement in the mortgage and
conveyance records and include all information therein as required by law,
including but not limited to, the term of the Agreement, a description of the
property affected, and the restriction on the transfer of the property.
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THUS DONE AND PASSED on the 12th day of November, 1998, at the City of El
Paso, State of Texas, the undersigned party having affixed its signature in the
presence of me, Notary, and the undersigned competent witnesses, after due
reading of the whole.
WITNESSES: LESSOR:
PETRO STOPPING CENTERS, L.P.
____________________________ By:_______________________________________
▇▇▇▇▇ ▇. Zine, Executive Vice-President
____________________________
________________________________________
Notary Public
THUS DONE AND PASSED on the 12th day of November, 1998, at the City of El
Paso, State of Texas, the undersigned party having affixed its signature in the
presence of me, Notary, and the undersigned competent witnesses, after due
reading of the whole.
WITNESSES: LESSEE:
PETRO TRUCKSTOPS, INC.
___________________________ By:_________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., President
___________________________
__________________________________________
Notary Public
Page 10
EXHIBIT "A"
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PROPERTY DESCRIPTION:
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LESSOR leases to LESSEE, the following described property, to wit:
