EXHIBIT 10.3
MOTOR VEHICLE FUELING STATION
MASTER GROUND LEASE AGREEMENT
Between
WAL-MART STORES, INC., LESSOR
And
▇▇▇▇▇▇ OIL USA, INC., LESSEE
EX. 10.3-1
MOTOR VEHICLE FUELING STATION MASTER GROUND LEASE AGREEMENT
This Agreement (the "Agreement"), dated as of the 12th day of November 1998 is
by and between WAL-MART STORES, INC., a Delaware corporation, with offices at
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lessor") and ▇▇▇▇▇▇ Oil USA,
Inc. ("Lessee")
RECITALS
A. Lessor, directly or through one or more of its wholly-owned
subsidiaries, owns and operates retail stores under the name of "Wal-Mart" and
"Wal-Mart Supercenter" throughout the United States. These stores are located on
parcels of land either owned, leased, or subleased by Lessor or one or more of
its wholly-owned subsidiaries. References to "Lessor" in this Agreement shall
include such of Lessor's wholly-owned subsidiaries, as may be relevant to the
context in which the reference to "Lessor" appears.
B. Lessee is a petroleum products refiner and marketer who is in the
retail gasoline, convenience store and car wash business and desires to
construct a Station on one or more of the Premises or Outlets owned, leased or
subleased by Lessor.
C. Recognizing the mutual benefits to be gained from a cooperative effort
concerning the development of the Premises, Lessor does hereby lease or sublease
to Lessee, and Lessee does hereby lease or sublease from Lessor, the Premises as
provided for in this Agreement, setting forth their respective rights and
obligations with regard to the Premises and the development of the Stations.
Therefore, in consideration of the mutual covenants and agreements contained
herein, Lessor and Lessee hereby agree as follows:
DEFINITIONS
For purposes of this Agreement, the following terms shall be defined as follows:
"Lessee's Work" shall mean all physical improvements and related development of
a Premises as herein provided for, including but not limited to canopies,
buildings, equipment, piping, installation, construction, grading and paving.
"Cost of Lessee's Work" shall mean all reasonable costs incurred in constructing
a Station, including but not limited to payments to third parties for labor and
materials incorporated in Lessee's Work, plus all payments to third parties for
direct development costs in connection with Lessee's Work including but not
limited to permit fees, legal fees, access fees and water and sewer hook-up
fees.
"Premises" shall mean that portion of the land that is part of Lessor's property
(which is owned or leased) and which is leased or subleased to Lessee by Lessor
pursuant to this Agreement. Each Premises shall be identified on a site plan
submitted as part of Exhibit A and more particularly described in Exhibit C
EX. 10.3-2
"Station" shall mean the motor vehicle fueling facility constructed on the
Premises by Lessee, including any car wash and/or convenience store and all
improvements, fixtures and equipment located thereon or used in connection
therewith.
"Store" shall mean the Wal-Mart store and real property or Wal-Mart Supercenter
store and real property on which the Premises is or could be located.
"Outlot" shall mean a parcel of land which is part of the original parcel
acquired in conjunction with the construction of a Store by Lessor, usually
bordering the major or secondary access artery and which may be available for
sale or lease for retail development.
"Delivery Date" shall be the date that all permits necessary to begin
construction of the Station are obtained.
"Rent Accural Date" shall mean the earlier of (i) the date a Station opens to
the public for business, or (ii) 120 days after the Delivery Date.
LIST OF EXHIBITS
Exhibit A - (furnished to Lessee by Lessor) shall contain a list of Stores with
a site plan for each Store reflecting thereon the proposed location, size and
configuration of a portion thereof which is thereby offered by Lessor to Lessee
to lease as a proposed Premises to become subject to this Agreement. Each
Exhibit A shall identify any requirements of Lessor (including without
limitation any permissive or mandatory business formats, operations, activities,
merchandise or services) and any known restrictions with respect to the proposed
Premises (including without limitation zoning matters, easements and
restrictions. Exhibit A may be supplemented by additional Exhibits A from time
to time, and at any time, by Lessor.
Exhibit B - (furnished to Lessor by Lessee) shall contain a list, by Store, of
those proposed Premises offered by Lessor on an Exhibit A, which Lessee accepts
as a Premises subject to this Agreement, and a list by Store of those proposed
Premises which Lessee rejects. Any Premises not listed as accepted on an Exhibit
B in accordance with this Agreement shall be deemed to have been rejected by
Lessee. Lessee shall be deemed to have taken possession of the Premises and this
Agreement shall be in effect as to each accepted Premises as of the date of
Exhibit B.
Exhibit C - (furnished to Lessor by Lessee within ninety (90) days after Lessee
opens to the public for business at the Premises) shall be the Addendum for each
Premises that is subject to the provisions of this Agreement. The Addendum shall
include (i) Lessor's Store number and Store address, and the Premises address,
(ii) a site plan reflecting the location and legal description of the Store and
the Premises and indicating Lessee's equipment used and the location of such
equipment on the Premises and utility easements (if any), (iii) an itemization
of the actual Cost of Lessee's Work, (iv) the Delivery Date, (v) the Rent
Accrual Date, (vi) a certification by Lessee that the Station has been
constructed and equipped and all improvements have been made in accordance with
the plans and specifications as approved by Lessor and (vii) proof of separate
assessment of the Premises for real property tax purposes or verification that
the Premises cannot be separately assessed (as required by Article 10.1). C
Exhibit D - (furnished to Lessor by Lessee) shall be a description of the
standard site plans furnished to Lessor by Lessee at the time of execution of
this Agreement.
EX. 10.3-3
Exhibit E - shall be the schedule of rents.
Exhibit F - shall be those Stations that were open to the public as of September
30, 1998 under the 1996 Agreement (as defined in Article 28.1).
ARTICLE 1.
SITE SELECTION
1.1 [Deleted]
1.2 Final Plans and Specifications
EX. 10.3-4
Prior to commencing construction of any improvement on a Premises,
Lessee (at Lessee's cost) shall provide Lessor with Lessee's final,
specific, detailed plans and specifications for the construction of
the Station on each Premises and shall obtain the approval of Lessor.
Lessor shall approve or disapprove each submission of plans and
specifications within forty-five (45) days, failing which they shall
be deemed to have been approved by Lessor.
ARTICLE 2.
STATION CONSTRUCTION AND MODIFICATIONS
2.1 Station Construction.
a. Lessee shall, in a timely fashion, pursue permits with the
intent to construct or cause to be constructed at each Premises a
Station conforming to the specifications mutually agreed upon by both
Lessor and Lessee, to be opened to the public for business timely and
otherwise in accordance with the provisions of this Agreement. Lessee
will, at Lessee's expense, cause a survey of the Premises to be
conducted, which will become the basis for the site plan in Exhibit C.
Lessee shall bear all costs in association with Lessee's Work.
Lessee shall give Lessor notice (i) of the projected date of
commencement of construction at the Premises at least ten (10) days
prior thereto, and (ii) of the projected date of opening to the public
for business at the Premises at least ten (10) days prior thereto.
Within ninety (90) days after the date Lessee opens to the public for
business at the Premises, Lessee shall furnish to Lessor Exhibit C.
b. Lessee shall, at Lessee's cost, secure all necessary zoning,
permits, licenses and other required regulatory approvals necessary to
begin and complete construction and to open to the public for business
at the Premises in accordance with this Agreement. Lessor shall
cooperate with Lessee in securing such approvals. To the extent
available, Lessor shall supply Lessee with site plans including
elevations and grading, drainage diagrams, storm sewer and utility
line layouts and environmental site evaluations, including soil
studies related to the area of the Premises, with Lessee bearing any
expense of copying or reproduction. Lessee shall furnish a copy of the
building permit to Lessor within one (1) week of its issuance.
c. All construction shall be done in a manner so as not to
materially interfere with Lessor's business and in compliance with
this Agreement. Prior to entering upon the Premises, Lessee shall
provide Lessor with a certificate of insurance as outlined in Article
13. All construction shall be prohibited at a Premises during the
period of November 1st - December 31st of any calendar year unless
otherwise approved in writing by Lessor. At all times construction
equipment and materials shall be contained in an area enclosed by a 6
foot high chain-link fence or OSHA approved safety fencing no less
than 4 feet high and be designated as a construction area on site and
in construction plans. All work done by Lessee shall be performed in a
good and workmanlike manner, in compliance with all applicable
governmental laws, codes, rules and regulations, and free of any
liens for labor and materials and subject to such requirements as
Lessor may impose. Lessee shall indemnify and hold harmless Lessor
against any loss, liability, damage, cost or expense resulting from
Lessee's Work, except for any loss, liability or damage resulting from
gross negligence by Lessor.
2.2 Modifications.
During the term of this Agreement with respect to any Station, Lessee
shall make no other structural alterations or improvements to, and
shall place no other equipment or other facilities on the Premises
EX. 10.3-5
except in accordance with the approved plans and specifications. If
Lessee wishes to make additional material changes to the Station or
Premises, Lessee must request approval from Lessor in writing. Routine
equipment replacement and facility maintenance shall not be considered
a material change. In performing any such alterations or improvements,
Lessee will ensure that such activities do not prevent such Station
from performing its intended functions for any length of time in
excess of the time reasonably necessary to so repair, remodel, modify
or reconfigure any such Station.
ARTICLE 3.
EXCLUSIVE USE AND RESTRICTIVE COVENANTS
3.1 Use.
a. Each Premises is leased to and shall be used by Lessee
solely for the purpose of installing, operating and maintaining
thereon a Station and other uses, if any, identified on Exhibit
A for the purpose of selling and dispensing to the general public
motor fuels, convenience store products and car washes of the type
identified and if and to the extent identified on Exhibit A hereto,
in accordance with the provisions of this Agreement, and for no other
purpose or purposes whatsoever without the specific prior approval of
Lessor in each instance as provided for herein.
b. During the term of this Agreement, Lessor agrees that Lessee
shall have the exclusive right to operate each Station at the Stores
at which a Premises is located and that Lessor shall not construct or
operate a motor vehicle fueling facility, convenience store or car
wash at any Store upon which a Premises is located nor grant to any
other person or entity any right to construct or operate a motor
vehicle fueling facility, convenience store or car wash at any Store
upon which a Premises is located, provided, however, if Lessee
constructs and operates a Station without a car wash, Lessor shall not
be restricted in any way from entering into an agreement with another
party to construct and operate a car wash at a Store upon which a
Premises is located. Lessor agrees, however, that it will not enter
into an agreement with another party to construct and operate a car
wash at a Store upon which a Premises is located without first
offering the right to construct and operate the car wash to Lessee.
Upon receipt of written notification by Lessor of the offer, including
the terms and conditions of the offer, Lessee shall have ten (10) days
within which to notify Lessor of Lessee's acceptance of such offer
under the same terms and conditions. If Lessee fails to so notify
Lessor, Lessor may proceed with the proposed agreement with another
party to construct and operate a car wash upon the same terms and
conditions as presented in the offer to Lessee. If the terms and
conditions of the offer substantially change, Lessor is obligated to
provide Lessee with an opportunity to exercise its right as outlined
above.
▇. ▇▇▇▇▇▇ agrees that it will not knowingly sell or lease an
Outlot at a Store for the express purpose of use as a Station (with or
without a convenience store or car wash in conjunction therewith)
without first offering to sell or lease such Outlot to Lessee upon the
same terms and conditions as the offer Lessor wishes to accept. Upon
receipt of written notification by Lessor of the offer, including the
terms and conditions of the offer, Lessee shall have ten (10) days
within which to notify Lessor of Lessee's acceptance of such offer
under the same terms and conditions. If Lessee fails to so notify
Lessor, Lessor may proceed with the proposed sale or lease of such
Outlot upon the same terms and conditions as presented in the offer to
Lessee. If the terms and conditions of the offer substantially change,
Lessor is obligated to provide Lessee with an opportunity to exercise
its right of first refusal as outlined above.
d. Proposed Premises which are offered to but not accepted by
Lessee as a Premises in accordance with this Agreement shall not be
subject thereafter to this Agreement in any respect, including without
limitation this Article 3.
EX. 10.3-6
3.2 Restrictive Covenants.
a. Lessor and Lessee agree that the Stations may sell any
non-fuel products, so long as such products are not offered for sale
in bulk quantities, subject to the following:
i) Lessee may not sell beer in a quantity package
greater than a "12 pack", soft drinks in a
quantity package greater than a "12 pack" and
cigarettes in cartons, but cigarettes may be sold
on an individual package or multi-pack (in
quantities no greater than three) basis.
ii) Lessee agrees not to sell, lease or rent
pornographic materials or drug related
paraphernalia at its Stations.
iii) Lessee agrees not to sell tires or automotive
batteries at its Stations.
iv) Lessee may install ATM banking facilities at the
Station provided such ATMs are approved by Lessor
in writing and are not restricted by other
agreements Lessor may have requiring exclusivity.
Such approval will not be unreasonably withheld by
Lessor.
v) Lessee may install or operate fast food franchise
offerings which do not have on-site seating,
provided such offerings are approved by Lessor in
writing and are not restricted by other agreements
Lessor may have relating to the Premises requiring
exclusivity. Such approval will not be
unreasonably withheld by Lessor.
b. Lessee agrees that it will not, during the term of this
Agreement, enter into any agreements to supply or operate motor
vehicle fueling facilities on parking lot sites (excluding Outlots)
with Lessor's competitors that are in substantially the same business
as the formats currently known as "Wal-Mart" or "Wal-Mart Supercenter
nor on parking lot sites (excluding Outlots) of grocery stores or
supermarkets having 15,000 square feet or more of total building area.
This covenant shall apply only to those states listed under Article
1.1.d. Lessee also agrees if it directly or indirectly supplies or
operates motor vehicle fueling facilities as described above, said
stations will not bear the name of "▇▇▇▇▇▇ USA" or any other name
which is the same as or confusingly similar to any name Lessee may use
at Premises covered by this Agreement
ARTICLE 4.
GRANT AND TERM
4.1 Lease of Premises
a. In consideration of the rents, covenants and agreements
herein reserved and contained on the part of Lessee to be performed,
Lessor does hereby lease and demise unto Lessee, and Lessee does
hereby lease or sublease from Lessor, each of the Premises.
b. It is understood that the Premises may, in some instances,
be owned by a third party and leased by Lessor from such third party,
and in such event consent from the third party lessor may be required
for Lessor to sublease the Premises to Lessee. Lessor shall be
responsible for obtaining such third party consent when necessary, to
the extent such consent can be obtained without the payment of money
or the
EX. 10.3-7
giving of other consideration by Lessor. If Lessor cannot obtain such
third party consent, then the Premises shall be removed from this
Agreement.
c. It is further understood that if Lessor is the lessee of a
Store on which a Premises is located, or if a Store and Premises are
located in a shopping center owned in part by a third party, there may
be certain areas of the shopping center or of such Premises which are
designated for the joint use of some or all the tenants in the
shopping center, and the lease by Lessor to Lessee of such Premises is
made subject to the provisions of any such lease or other agreement,
(including an obligation to pay common area maintenance charges) and
to any such existing third party rights.
d. Lessee shall be responsible for accomplishing, at its
expense, any platting, re-platting or other steps which may be
required by applicable laws, ordinances and regulations in connection
with this Agreement, including but not limited to the cost of any
relocating of landscaping, drainage, curbing, parking spaces or other
improvements which may be necessitated.
e. The lease to Lessee is subject to any existing easements,
rights of way, conditions, covenants and restrictions that may affect
the Premises.
4.2 Term and Options to Renew.
a. The term of this lease shall commence as to each Premises on
the Rent Accrual Date and shall continue for ten (1O) years, unless
sooner terminated pursuant to the provisions of this Agreement. Lessor
and Lessee acknowledge the Stations that were subject to the 1996
Agreement (as defined in Article 28.1) and were open to the public as
of September 30, 1998, are identified on Exhibit F of this Agreement
and the original lease term will be for the time period prescribed on
Exhibit F.
b. Subject to Article 4.2.c. below Lessee shall have two (2)
successive five (5) year options to renew this Agreement as to each
Premises, which options shall automatically be exercised unless
Lessee provides 6 months prior written notice to Lessor of its intent
not to exercise. Options one (1) and two (2) shall be subject to the
same terms and provisions of this Agreement and subject to the rental
payments outlined in Exhibit E (the "Rent Schedule"). At the end of
the options the parties may enter into good faith negotiations for
additional option periods.
c. If the term of Lessor's lease on a Store, to which a
Premises relates, expires prior to the expiration of an original term
or an exercised renewal option, then in that event the original and
option terms with respect to such Premises shall expire upon the
expiration of Lessor's lease, it being understood that Lessor shall
not be obligated to exercise any option or otherwise enter into any
agreement to extend or renew a Store lease in order to provide
sufficient lease term to cover Lessee's original lease term or the
term of any options to renew this Agreement as to the related
Premises.
4.3 Condition of the Premises.
Except as expressly provided in Article 5 below or otherwise agreed in
writing signed by the parties, Lessee accepts each of the Premises in
"as is" condition at the date of the Exhibit B acceptance by Lessee
of the offer to lease such Premises.
4.4 Opening of Stations: Removal of Premises from Agreement.
EX. 10.3-8
a. Not later than one (1) year after the Premises has been
offered, Lessee shall open a Station for business on such Premises in
accordance with the provisions of this Agreement.
b. In the event the Station does not open for business within 120 days
(excluding any days in November and December during which Lessor
precludes Lessee from pursuing construction) from the Delivery Date
then a monthly flat fee will be paid to Lessor by Lessee for the
individual Station and Premises until it opens for business. This
restriction is exclusive of the November and December construction
moratorium as may be applicable. The foregoing payment is an amount
which is agreed upon by the parties as liquidated damages to
compensate Lessor for the damages suffered by it due to Lessee's
failure to open and operate the Station(s) within 120 days after the
Delivery Date(s). The parties agree that Lessor's damages due to such
failure would be impossible to determine with reasonable certainty, by
reason of which the parties have agreed upon the foregoing liquidated
damages as Lessor's sole and exclusive remedy for such failure by
Lessee.
c. Lessee shall have the right to elect to remove from this Agreement
up to an aggregate of thirty percent (30%) of the total number of
Stores that have been or will be offered. Lessee may remove a Store
from this Agreement by giving Lessor written notice of such election.
Thereupon arid thereafter, this Agreement shall terminate as to such
Premises, and Lessor shall have no obligation to replace such Premises
with another Premises.
d. With respect to any Premises (i.) on which a Station has not
been opened by Lessee in accordance with the provisions of this
Agreement within one (1) year after it is offered to Lessee, (ii)
which has not been removed from this Agreement by Lessee in accordance
with Article 4.4.c. above, and (iii) on which Lessee has not commenced
or is not diligently pursuing completion of the construction,
equipping and opening of a Station in accordance with the provisions
of this Agreement, Lessor shall have the right to elect to remove such
Premises from this Agreement by giving Lessee notice of such election.
Thereupon and thereafter, this Agreement shall terminate as to such
Premises, and Lessor shall have no obligation to replace such Premises
with another Premises.
e. Rent, liquidated damages and other obligations of Lessee
under this Agreement shall continue to accrue with respect to a
Premises, unless and until such Premises is removed from this.
Agreement by Lessee in accordance with the provisions of Article
4,4.c. above or by Lessor in accordance with the provisions of Article
4.4.d. above. Removal of a Premises from this Agreement by Lessee or
Lessor shall not terminate any obligations of Lessee which shall have
accrued under this Agreement prior to such removal, including without
limitation Lessee's obligations under Article 14 and Article 18 of
this Agreement. The exclusive use provisions of Article 3.1 shall not
apply to any site, which has been removed as a Premises from this
Agreement by Lessee or Lessor.
▇. ▇▇▇▇▇▇ and Lessee agree that any Store offered under this
Agreement may be removed by Lessor from the Agreement at any time at
Lessor's sole discretion. Such Stores shall not be included in
Lessee's right to remove an aggregate of 30% of Stores offered as
defined in Article 4.4.C.
EX. 10.3-9
g. If Lessee is unable to obtain necessary permitting or zoning
required for construction of a Station, Lessee may remove a Store from
this Agreement, provided, prior to Store being removed from the
Agreement. Lessee shall provide proof to Lessor that all reasonable
legal remedies at the local governmental level (short of initiating
litigation) have been exhausted. Such Stores shall not be considered
part of Lessee's right to remove an aggregate of 30% of Stores offered
as defined in Article 4.4.c.
ARTICLE 5.
ENVIRONMENTAL
5.1 Inspection
a. Upon acceptance via Exhibit B of a Premises, Lessee may, at
its option, enter upon the Premises and make or cause to be made by a
competent and qualified independent contractor(s) reasonably
acceptable to Lessor, at Lessee's sole expense, such inquiries,
inspections, soil tests, borings and studies (collectively,
"Studies") as may be necessary in order to determine the nature,
levels and extent of any existing contamination of the Premises and
the ground water beneath the Premises; provided, however, that the
description and scope of work for the Studies shall be subject to the
prior consent of Lessor, in its reasonable discretion. Lessee agrees
to conduct each and all such Studies in compliance with all applicable
Jaws, rules and regulations and in a professional, competent and
workmanlike manner and in a manner which will minimize any
interference with the operation of Lessor's business at the Store at
which a Premises is located. Promptly upon (but in any event no later
than ten (10) business days after) receipt thereof by Lessee, Lessee
shall furnish to Lessor a copy of each report or other results of a
Study, (each, a "Report"). Each Report shall reflect that it has been
prepared by the contractor expressly for the benefit of Lessor as well
as Lessee.
b. If a Study or Report indicates the presence of soil or
groundwater contamination at the Premises which equals or exceeds
current applicable Federal, state or local minimum standards, Lessee
shall have the option to not proceed further with work at such
Premises, unless Lessor, at Lessor's sole option and expense, performs
remediation to reduce such contamination to no more than the said
standards. If Lessor does not desire to perform such remediation and
Lessee is unwilling to proceed without such remediation, this
Agreement shall terminate as to such Premises and Lessor shall
reimburse Lessee for the cost of die Studies. Such termination with
respect to such Premises shall not affect the rights and obligations
of the parties with respect to any other Premises or Stations.
c. The levels of contamination established at the conclusion of
the procedures outlined in Article 5.l(a) and 5.1(b) above shall be
the "Environmental Base Lines" for the Premises. To the extent
Lessee fails to exercise its option to conduct such Studies prior to
the earlier of the commencement of construction activities by Lessee
on a Premises or the placement of any equipment on such Premises, it
shall be conclusively presumed that such Premises contains no
contamination.
d. At the conclusion of the Studies, Lessee shall promptly seal
or otherwise permanently close any test borings and or ▇▇▇▇▇, remove
its equipment and otherwise restore the Premises to its former
condition. In the event Lessor and Lessee agree in writing that some
or all of the ▇▇▇▇▇ should be maintained for future sampling, Lessee
may allow the agreed upon ▇▇▇▇▇ to remain providing measures are taken
to cap and lock said ▇▇▇▇▇ so as to minimize potential contamination
but allow for future testing.
5.2 Responsibilities After Termination or Non-renewal.
Immediately after termination or non-renewal of this Agreement as to a
Premises, Lessee shall (at Lessee's sole expense) cause a Study(ies)
to be performed by a competent and qualified independent contractor(s)
reasonably acceptable to Lessor, who shall issue a Report, a copy of
which shall be furnished to Lessor
EX. 10.3-10
without charge promptly upon (but in any event no later than ten (10)
business days after) receipt thereof by Lessee, sufficient to
establish the nature, levels and extent of petroleum based hydrocarbon
contamination at the Premises, if present. Each Report shall reflect
that it has been prepared by the contractor expressly for the benefit
of Lessor as well as Lessee. Lessee shall (at Lessee's sole expense)
perform all remediation and take all steps necessary to reduce any
contamination to the Environmental Base Lines resulting from Lessee's
operation of the Station, including without limitation the acts of
third party invitees of Lessee, and shall otherwise be responsible
for, indemnify and hold harmless Lessor against any existing
petroleum based hydrocarbon contamination in excess of such
Environmental Base Lines to the extent required by any applicable
present or future Federal, State or Local laws or regulations. Lessee
shall not be responsible to the extent that any such contamination has
no connection with Lessee's operation of the Station and is caused by
a third party which is not an invitee of Lessee. Lessor shall provide
Lessee reasonable access to the Premises for the purpose of performing
Lessee's obligations hereuuder.
ARTICLE 6.
OPERATING CONDITIONS
[Deleted]
ARTICLE 7.
RENT
7.1 Rent.
EX. 10.3-11
For each Station, there shall be no rent or other charge due or
payable by Lessee with respect to any period prior to the Rent Accrual
Date. From and after the Rent Accrual Date, Lessee agrees to pay rent
and/or liquidated damages ("Rent") to Lessor for each Station under
this Agreement in accordance with Article 4.4 and Exhibit E hereto
(the "Rent Schedule").
7.2 [Deleted]
7.3 Documentation.
Upon request, Lessee agrees to furnish to Lessor from time to time,
such information and backup documentation as may be requested by
Lessor relating to the determination of Rent.
7.4 Payments.
Payments of Rent shall be made via wire transfer, or other method, as
directed by Lessor and shall be made for each calendar month not
later than the fifth (5th) day of the calendar month following the
month for which the rent is calculated. Lessee shall consolidate
payments of Rent for all Premises, in a single wire transfer, but
Lessee shall simultaneously with each wire transfer send to Lessor
supporting documentation electronically for the Rent attributed to
each Premises, which shall be identified by the Lessor's number
assigned to the Store or other designation agreed upon by Lessor and
Lessee, at which the Premises is located. In the event that an
electronic submission cannot take place, Lessee agrees to send the
supporting documentation to the address indicated in Article 7.2 above
or such other address of which Lessee may subsequently be notified in
writing by Lessor. If for any reason Lessor does not receive the rent
by the due date, Lessor shall promptly notify Lessee, If Lessee does
not cure within five (5) business days from the date of receipt of the
notice to cure from Lessor, payments not made by the sixth (6th) day
shall bear interest at a rate equal to Prime Rate (as published by
the Wall Street Journal) plus four percent (4%) from the sixth (6th)
day of the month.
7.5 Alternate Fuels.
EX. 10.3-12
Lessor and Lessee agree that prior to the introduction or installation
of automotive fuels other than gasoline or diesel at any Station, both
parties will agree to a form of measurement upon which the rent is
calculated in this Agreement. The rent will then also apply to the new
fuel type.
ARTICLE 8.
COMPLIANCE WITH LAW; INGRESS AND EGRESS
8.1 Compliance with Laws and Regulations.
Lessee shall, at all times, maintain and conduct its business, insofar
as the same relates to Lessee's use and occupancy of the Premises, in
a lawful manner, and in compliance with all governmental laws, rules,
regulations and orders applicable to the business of Lessee conducted
at the Station, including those with respect to storage, handling,
discharge and transport of any material or product deemed hazardous to
the extent of Lessee's responsibility.
8.2 Ingress and Egress.
a. Lessor shall at all times allow Lessee, Lessee's agents,
suppliers and employees and its customers the right of ingress and
egress to the Premises sufficient to conduct and encourage Lessee's
business. Lessee and Lessor shall agree on a reasonable route and
delivery access for Lessee's commercial delivery vehicles so as to
minimize interference with Lessor's Store business.
b. Lessee agrees to not block or disrupt the flow of traffic on
Lessor's parking lots and agrees to use its best efforts to make fuel
deliveries to the Stations between the hours of 10:00 p.m. and
8:00 a.m.
ARTICLE 9.
MAINTENANCE, REPAIRS AND CLEANLINESS
9.1 By Lessee.
Lessee shall be responsible, at its cost and expense, for all repairs,
maintenance and replacements for the Stations and Premises, including
but not limited to, the mechanical and electrical equipment and
systems which comprise the Stations, and all other fixtures,
appliances and facilities furnished or installed on the Premises by
Lessee. The maintenance and repair work at the Premises shall be
performed by Lessee or its contractors timely, in a good and
workmanlike manner and in compliance with all applicable governmental
laws, codes, rules and regulations, free of any liens for labor and
materials, and subject to such reasonable requirements as Lessor and
Lessee may agree from time to time. The Premises shall be kept in
clean condition and appearance, and shall be properly operating during
the hours that they are open.
ARTICLE 1O.
TAXES
10.1 Lessee's Responsibilities.
a. Lessee shall make every effort to cause the Premises,
including all of Lessee's improvements, to be separately assessed for
real property tax purposes within 120 days from Delivery Date. If the
Premises cannot be separately assessed, Lessee shall provide
verification from the appropriate taxing jurisdiction. Such separate
assessment of a Premises or verification that it cannot be separately
assessed shall be included as part of Exhibit C. Lessee shall be
responsible for the timely payment of all general and special real
property taxes and assessments and all other government charges
levied, assessed or imposed with
EX. 10.3-13
respect to the Premises and all improvements constructed thereon and
all assessments for local improvements, if any, attributable to the
Premises. Lessee shall also pay all personal property taxes assessed
on its products, trade fixtures and equipment at the Stations or in,
under or upon the Premises and also pay general license or franchise
taxes and other charges, if any, which may be imposed in connection
with the conduct of Lessee's business. If, after Lessee's efforts to
do so, the Premises cannot be separately assessed for real property
tax purposes, Lessee shall pay that amount by which such real property
taxes have increased by reason of Lessee's improvements to the
Premises. Lessee shall have the right to contest, in its and/or
Lessor's name, an assessment for and/or levy for any taxes which
Lessee is obligated to pay under this article. In the event any such
taxes, or charges which are the obligation of Lessee herein are
assessed and paid by Lessor, Lessee shall reimburse Lessor therefor
upon Lessor's demand and presentation to Lessee of receipted bills but
Lessor shall not be entitled to reimbursement by reason of Lessor's
delinquent payment for any penalties or interest; or if the bills for
any such taxes or charges are received by Lessor prior to the date
penalty and/or interest begins to accrue and Lessor fails to forward
such bills in a timely manner to Lessee, Lessee shall proceed to pay
such bills but any penalties or interest shall be charged to Lessor as
a result of Lessor's failure to forward such bills in a timely manner.
In addition to the above, Lessee shall furnish to Lessor proof of
payment of real property taxes for each Premises.
ARTICLE 11.
UTILITIES AND MAINTENANCE FEES
11.1 Utility Charges.
a. Lessee shall pay for all utility services, including natural
gas, electricity, domestic water, sewer and all other utility services
furnished to Lessee for use in the Premises. All such utility services
shall be separately metered and charged to Lessee directly by the
utility companies.
b. Lessee, within 120 days from the Delivery Date, shall
certify to Lessor that all utility servicing the Premises are
separately metered. Certification that the Stations utilities are
separately metered shall become a part of Exhibit C.
11.2 Easement.
To the extent it has the right or ability to do so, Lessor agrees to
grant to Lessee a non-exclusive utility easement to serve each of the
Premises. To the extent Lessor lacks the power to grant such an
easement, Lessor will use reasonable efforts (but not requiring the
expenditure of funds) to obtain such an easement from those having the
power to grant the same. Lessee agrees to bear the cost of bringing
utilities to the Premises, including any cost of obtaining an easement
from others than Lessor to the extent required under this Agreement.
ARTICLE 12.
FIXTURES, SIGNS AND ALTERATIONS
12.1 Signs.
EX. 10.3-14
a. Lessee shall obtain all permits and erect all signs at the
Stations in compliance with all applicable governmental laws, codes,
rules and regulations, as well as all applicable leases, covenants,
restrictions, agreements or other instruments affecting the property.
All signs shall be subject to approval by Lessor as to location,
content, appearance and all other aspects and shall be maintained by
Lessee in a neat and clean condition. No other signs will be placed on
or above the Premises or elsewhere on the Store property without the
prior written consent of Lessor. In no event shall hand-written signs
be permitted at or on the Premises.
b. Lessee shall make diligent efforts where appropriate to
establish and maintain signage identifying Lessee's business on what
is commonly known as "services at next exit" Interstate signage.
12.2 Alterations.
Lessee may, from time to time during the Lease Term, make any
structural alterations or changes to the Stations, which are in
accordance with Lessee's Work, or as may otherwise be approved by
Lessor and may make any nonstructural alterations that Lessee may
desire. All such alterations or changes shall be made by Lessee or its
contractor in a good and workmanlike manner, in compliance with all
applicable governmental laws, codes, rules and regulations, free of
any liens for labor and materials and subject to such reasonable
requirements as Lessor and Lessee may agree to or as may be required
by any agreement to Lessor affecting the Premises. All alterations or
changes Lessee may make in the Premises shall be Lessee's
responsibility to maintain and repair in the manner set forth in this
Agreement.
ARTICLE 13.
LIABILITY INSURANCE
13.1 Liability Insurance.
Lessee agrees to obtain and keep in force and effect at all times,
with insurers reasonably acceptable to Lessor, commercial general
liability insurance with respect to the Stations and Premises, with
minimum limits of liability of five million dollars ($5,000,000)
combined coverage per occurrence; environmental liability insurance
with minimum limits of liability of five million dollars ($5,000,000)
per Station; employer's liability insurance with minimum limits of
five million dollars ($5,000,000); and statutory worker's compensation
insurance as required by applicable law with a waiver of subrogation
where permitted by law. Each such insurance will name Lessor, its
subsidiaries and affiliates as additional insureds and will contain a
provision that it is cancelable only upon not less than (30) days'
notice in writing to Lessor. Upon request, Lessee agrees to provide
Lessor copies of the declaration page(s) of the policy(ies)
reflecting all of the foregoing. Lessee may self-insure any or all of
the above coverages except environmental liability, so long as Lessee
maintains a net worth of or more. Prior to entering any Premises,
Lessee will provide Lessor evidence of insurance coverage. Lessee may
self-insure as to environmental liability so long as Lessee
maintains a net worth of or more.
ARTICLE 14.
INDEMNIFICATION
14.1 Indemnification of Lessor.
Lessee shall indemnify Lessor, its directors, officers, agents,
employees and owners to the extent of their interest in the Premises,
and save them harmless from and against any and all claims, actions,
damages, liability, and expense, including, without limitation,
reasonable attorneys' fees in connection with loss of
EX. 10.3-15
life, personal injury, or damage to property arising from or out of
any occurrence in, upon, or at the Premises, or the occupancy or use
by Lessee of die Premises or any part thereof, or occasioned wholly or
in part by any act or omission of Lessee, its agents, employees or
contractors, except to the extent caused by the act or omission of
Lessor, its agents, employees or contractors.
14.2 Indemnification of Lessee.
Lessor shall indemnify Lessee, its directors, officers, agents and
employees and save them harmless from and against any and all claims,
actions, damages, liability and expense, including, without
limitation, reasonable attorney's fees in connection with loss of
life, personal injury or damage to property arising from or out of any
occurrence in, upon or at the Stations or the Stores to the extent
caused by any act or omission of Lessor, its agents, employees or
contractors.
ARTICLE 15.
ADVERTISING
15.1 Restriction on References to Other Party.
Neither Lessor nor Lessee shall refer to the other party in
advertising nor use the other party's logos, trademarks, trade dress,
or service marks without the prior written consent of the other party;
provided, however, each party may, without obtaining the consent of
the other party, include the addresses of or otherwise identify the
Stores and/or the Stations in a directory, map or other listing or
depiction of the Stations and/or the Stores. Each of Lessor and Lessee
acknowledges that the other party's logos, trademarks, trade dress,
and service marks are the sole property of the other party, and this
Agreement gives neither party any rights with respect to the logos,
trademarks, trade dress or service marks of the other party. Lessee
shall conspicuously identify itself as owner/operator with respect to
each Station at each Premises and in connection with any advertising.
15.2 Right to Advertise on Premises,
a. Lessor shall have the exclusive right to utilize all
spanners for advertising on the Premises and on Lessee's Equipment
(including electronic display at point of sale). The spanners shall
not carry the trademark, mention or promote any item which is in
competition with Lessee's business or product lines of refining and
marketing petroleum products such as motor fuels and gasoline. All
electronic messages shall be approved by Lessee and shall conform to
Lessee's standards.
b. Lessee shall have the exclusive right to utilize all pump
toppers for advertising on the Premises. The pump toppers shall not
carry the trademark, mention or promote any retail competitor which is
in competition with Lessor or items which are in competition with
Lessor's business or product lines.
c. In order to assist Lessor in promoting its Tire & Lube
Express and Store automotive sales businesses, Lessee shall make
available point of sale and promotional space as, when and where
requested by Lessor for items such as tire and automotive displays, so
long as these activities do not interfere with sales at the Stations.
Lessee shall also allow Lessor to conduct tire and lube promotions by
Lessor's sales associates at the Station so long as these activities
do not interfere with Station sales.
EX. 10.3-16
ARTICLE 16.
EMERGENCY NOTIFICATION
16.1 Emergency Notification.
Lessee and Lessor shall each keep the other party informed at all
times of the name(s) and/or telephone number(s) with respect to each
of the Premises, for the other party to contact, at any time of day or
night, to report activities or circumstances existing at any of the
Stores or Premises for Lessor's or Lessee's prompt attention.
Notwithstanding the foregoing and that a party may from time to time
make such reports to the other party, neither party shall have any
obligation whatever to observe, monitor, report on, control, respond
to or otherwise deal in any manner with any activities or
circumstances whatever at a Store (in the case of Lessee) or at a
Premises (in the case of Lessor). Except as provided in Article 9.1
above, Lessee shall be solely responsible for the Premises, for
Lessee's property and for all activities of Lessee at the Premises.
Lessor shall be solely responsible for its Store, for its property and
for all activities of Lessor at its Store.
ARTICLE 17.
DAMAGE BY FIRE OR OTHER CASUALTY
17.1 Notice.
Lessee shall give immediate written notice to Lessor of any damage
caused to a Premises or Station by fire or other casualty.
17.2 Damage.
Subject to provisions of 17.3 below, if during the Lease Term a
Premises or Station shall be damaged by fire or other casualty, Lessee
shall promptly proceed to commence repair of such damage and restore
the Premises and Station to substantially its condition at the time of
such damage. Subject to zoning laws and building codes then in
existence, Lessee shall complete such repairs subject to any-delay,
which may result from any cause beyond Lessee's reasonable control.
This Agreement shall continue in full force and effect during any such
period of repair and restoration.
17.3 Substantial Damage In Last 3 Years of Term.
In the case during the last three (3) years of the Lease Term the
Premises or Station shall be substantially damaged or destroyed by
fire or other casualty. Lessee shall have the right, to be exercised
by written notice to such effect given by Lessee to Lessor within
forty-five (45) days after the occurrence of such event, to terminate
this Agreement as to such Premises. If Lessee fails to timely give
such notice of its election to terminate, this Agreement shall, except
as hereinafter provided, remain in full force and effect, and Lessee
shall proceed to commence repair or rebuilding of the Premises and
Station to substantially its condition at the time of such damage or
destruction subject to zoning laws and building codes then in
existence, but Lessee shall not be responsible for any delay which may
result from any cause beyond Lessee's reasonable control. For purposes
of this article, substantial damage shall be defined as damage for
which the repair cost is greater than 50% of the cost to rebuild the
Station and Premises.
17.4 Operation During Reconstruction.
EX. 10.3-17
During any period of reconstruction or repair of the Premises. Lessee
shall continue the operation of the Station to the extent practicable.
ARTICLE 18.
LESSOR'S OPTION TO ACQUIRE LESSEE'S WORK;
OBLIGATIONS OF LESSEE UPON TERMINATION
18.1 Lessor's Option to Acquire Station Equipment Upon Termination.
Except in the case of termination due to expiration of the term
(original or renewal) which is dealt with in Article 18.2 below, upon
termination of this Agreement as to a Premises in accordance with the
provisions of this Agreement, Lessor shall have the right, at its
option, to acquire all (but not less than all) of Lessee's Work with
respect to such Premises, exclusive of any signs, docals or other
materials which contain Lessee's Brand identification. Within ten (10)
days of the giving to Lessee of a notice of earlier termination by
Lessor, or simultaneously with the giving by Lessee of a notice of
earlier termination by it, Lessee shall give a notice to Lessor, which
shall disclose the unamortlized portion of the Cost of Lessee's Work
at each Premises, using a ten (10) year straight line basis beginning
on the Rent Accrual Date (the "Unamortized Station Costs"). Lessor
shall have the right to audit Lessee's determination of Unamortized
Station Costs. Lessor shall have the right to acquire Lessee's Work
free and clear of any liens or encumbrances whatever, by giving Lessee
notice of its election to do so not later than ten (10) business days
prior to the termination of this Agreement with respect thereto. Any
addition to or replacement of above or below ground equipment or
facilities, as provided for herein, will be added to the Cost of
Lessee's Work. Upon termination. Lessee shall deliver to Lessor a ▇▇▇▇
of sale containing warranties of title and against liens and
encumbrances covering all items of Lessee's Work with respect to which
Lessor shall have exercised its option to acquire, in exchange for
payment by Lessor of the Unamortized Station Costs.
18.2 Expiration of Term.
In the case of termination as to a Premises due to expiration of the
term (original or renewal), Lessor shall have the right, at its
option, to acquire all (but not less than all) of Lessee's Work with
respect to such Premises. Not less than sixty (60) days prior to
expiration of the term, Lessee shall give a notice to Lessor which
shall disclose the pre-tax net income of Lessee for the Premises for
the thirty-six (36) months ending ninety (90) days prior to such
termination. In determining such net income, Lessee shall charge or
credit to the Premises all related revenues and expenses in accordance
with generally accepted accounting principles on a consistent basis
throughout the term. Lessor shall have the right to audit Lessee's
financial statements relating to the Premises for any or all of the
years during which the Premises have been subject to the Agreement.
Lessor shall have the right to acquire the Lessee Equipment, free and
clear of any liens or encumbrances whatever, by giving Lessee notice
of its election to do so not later than ten (10) business days prior
to the termination of this Agreement with respect thereto. Upon
termination, Lessee shall deliver to Lessor a ▇▇▇▇ of sale containing
warranties of title and against liens and encumbrances covering all
items of Lessee's Work with respect to which Lessor shall have
exercised its option to acquire, in exchange for payment by Lessor of
an amount equal to the higher of such 36-months' net income, as
adjusted pursuant to any audit by Lessor, or the Unamortized Station
Costs.
18.3 Equipment Removal.
Except where Lessor has exercised its option to acquire the Lessee's
Equipment as provided in Article 18.1 and 18.2 above or as herein
after provided, not later than sixty (60) days after the date of
termination
EX. 10.3-18
of this Agreement as to a Premises. Lessee shall remove therefrom all
of Lessee's Work and shall repair any damage and restore all of such
Premises to its former condition. If Lessee fails to remove any of
Lessee's Work, Lessor may, at its option, treat the same or any part
thereof as abandoned by Lessee, whereupon the same or such part
thereof shall be and become the property of Lessor and may be used or
disposed of by Lessor as it may see fit, without any obligation to
account therefor to Lessee. The acquisition by Lessor of any of
Lessee's Work shall not be deemed to be a waiver of any rights of
Lessor against Lessee under the Agreement, or otherwise, and shall not
be a basis for a claim of assumption of risk or contributory
negligence by Lessor, which defenses Lessee expressly waives. If the
Premises are leased by Lessor. Lessee shall remove Lessee's Work,
repair any damage and restore the Premises in accordance with the
foregoing not later than the date of termination of Lessor's lease. If
the termination of this Agreement is pursuant to Article 22.1 below,
Lessee shall remove the Equipment, repair any damage to Lessee's Work
and restore the Premises in accordance with the foregoing no later
than the later of (i) sixty (60) days after notice of termination or
(ii) the date of termination. No rent shall be payable while Lessee is
removing its equipment, repairing damage and restoring the Premises,
except in the event of termination pursuant to Article 22.1 below.
ARTICLE 19.
EMINENT DOMAIN
19.1 Partial or Total Condemnation.
If the whole or any part of the Premises shall be taken by any public
authority under the power of eminent domain, then and in such event
this Agreement shall terminate as to such Premises, unless Lessor and
Lessee shall mutually agree in writing, that the property taken is not
significant enough to substantially affect the business, in which case
this Agreement shall not terminate. In any event, Lessee shall have
the right to claim from the condemning authority such compensation as
may be separately awarded or recoverable by Lessee in Lessee's own
right for the Station, trade fixtures, moving expenses and lost
profits of Lessee. All other condemnation rights shall belong to
Lessor.
ARTICLE 20.
ASSIGNMENT AND SUBLETTING; SUBCONTRACTING
20.1 By Lessee.
Except (i) in the event of the reorganization or consolidation of
Lessee, or (ii) in connection with a deed of trust, mortgage or other
pledge to a secured lender of Lessee, Lessee shall not assign this
Agreement or any part thereof, or franchise to, subcontract with or
otherwise permit any third party to occupy or operate the Premises,
the Station or any portion thereof or conduct any activity thereon,
without obtaining the prior written consent of Lessor, which consent
shall not be unreasonably withheld. Assignment shall not release the
assignor from its obligations, past or future, under this Agreement,
unless such release is in writing and signed by the releasing party.
Provided, however, that the exception in (i) above shall not be
construed so as to diminish or impede Lessor's right to purchase as
provided in Article 25 below.
20.2 By Lessor.
EX. 10.3-19
Lessor, its successors or assignees shall have the right at any time
to assign this Lease. Assignment shall not release the assignor from
its obligations, past or future, under this Agreement, unless such
release is in writing and signed by the releasing party.
ARTICLE 21.
RELOCATED STORES
21.1 Relocated Stores.
a. Lessee acknowledges Lessor's right to close or relocate any
Store at any time, however, Lessor agrees that, to the best of its
knowledge at that time, no Store will be included on any Exhibit A
that is then scheduled to close within five (5) years of the date of
such Exhibit A.
b. If Lessor elects to relocate a Store at which a Station is
then located during the original term of this Agreement, and if in
connection with such relocation Lessor determines (in Lessor's sole
discretion) that the relocated store is appropriate for a Station,
then Lessor will issue to Lessee an Exhibit A for a proposed Premises
at the relocated store.
c. If Lessor relocates or closes (without relocating) a Store
at which a Station is then operating, Lessor may at any time
thereafter notify Lessee of Lessor's request that Lessee close the
Station, in which event Lessee shall, within sixty (60) days after
such notice, cease business at such Station, remove therefrom Lessee's
Work in accordance with Article 18.3 and surrender the Premises to
Lessor, whereupon this Agreement shall terminate as to such Premises.
If Lessor makes such a request within the first five (5) years of the
term of this Agreement as to a Premises and Lessor has not offered to
Lessee a proposed Premises at a relocated store, then in such event
Lessor shall pay to Lessee the Unamoritized Station Costs in
connection with such Premises.
d. If Lessee is offered the right to relocate a Station along
with the relocation of a Store but elects not to relocate the station,
Lessee may remain at the closed Store location unless requested by
Lessor to close the Station, in which event Lessee shall, within sixty
(60) days after such notice, cease business at such Station, remove
therefrom Lessee's Work in accordance with Article 18.3 and surrender
the Premises to Lessor, whereupon this Agreement shall terminate as to
such Premises.
ARTICLE 22.
RIGHT OF TERMINATION
22.1 Lessee's Default.
a. Any one or more of the following events shall be an "Event
of Default" under this Agreement:
i. Lessee shall vacate or abandon a Premises;
ii.. This agreement shall be transferred to any other
person or party except in the manner herein provided;
iii. This Agreement or a Premises or any part thereof
shall be taken upon execution or by other process of law
directed against Lessee, or shall be taken upon or subject
to any attachment at the instance of any judgment creditor
against Lessee, and said taking or attachment shall not be
discharged or disposed of within fifteen (15) days after the
levy thereof;
EX. 10.3-20
iv. Lessee shall file a petition in bankruptcy or
insolvency or for reorganization or arrangement under the
bankruptcy laws of the United States or under any insolvency
act of any state, or shall voluntarily take advantage of any
such law or act by answer or otherwise, or shall be
dissolved or shall make an assignment for the benefit of
creditors;
v. Involuntary proceedings under any such bankruptcy
law or insolvency act or for the dissolution of Lessee shall
be instituted against lessee, or a receiver or trustee shall
be appointed of all or substantially all of the property of
Lessee, and such proceeding shall not be dismissed or such
receivership or trusteeship vacated within sixty (60) days
after such institution or appointment;
vi. Lessee shall generally fail to pay its debts as
they become due;
vii. Lessee shall fail in any material way to perform
any of the other agreements, terms, covenants, or conditions
hereof on Lessee's part to be performed, including
maintenance of insurance as required by Article 13, and such
non-performance shall continue for a period of thirty (30)
days after written notice thereof is given by Lessor to
Lessee, or if such performance cannot be reasonably had
within such thirty (30) day period. Lessee shall not in
good faith have commenced such performance within such
thirty (30) day period and shall not diligently proceed
therewith to completion
b. Upon the occurrence of an Event of Default, Lessor shall
have the right to either(i.) give Lessee written notice of intention
to terminate this Agreement, either in its entirety as to all Premises
or only as to such Premises to which the Event of Default pertains, on
the date of such notice or on any later date specified therein, and on
the date specified in such notice Lessee's right to possession of the
Premises shall cease and this Agreement shall be terminated, or (ii)
exercise "self-help" and correct all or part of such failure, in which
event Lessee shall, immediately upon demand, reimburse Lessor one
hundred ten percent (110%) of the out-of-pocket cost to Lessor of
performing such self-help. The remedies of Lessor described in this
Article 22 shall be in addition to any other remedies of Lessor
available under applicable law or equity in the event of the
occurrence of an Event of Default by Lessee.
22.2 Performance Failure.
a. If Lessee shall fail to pay the rent or any other monetary
sums required to be paid hereunder on or before the date such sums are
due and shall fail to cure the same within five (5) business days
after receipt of written notice from Lessor of such failure to pay
interest shall accrue pursuant to Article 7.4; provided, however, if
such failure to pay exceeds ten (10) days twice within any twelve (12)
consecutive months period, thereafter, Lessee shall be required to pay
a 15% penalty on any delinquent amounts in addition to any interest
accrued pursuant to Article 7.4.
b. If Lessee shall fail to pay the rent or any other monetary
sums required to be paid hereunder within ninety (90) days after
receipt of written notice from Lessor of such failure to pay, Lessor
may terminate this agreement.
c. Except in the event of Force Majeure (as defined in Article
23.2), commencing on the Rent Accrual Date Lessee shall keep the
Station open for business for at least ninety percent (90%) of the
hours
EX. 10.3-21
of operation required by Article 6.1 in each calendar month, and if it
fails to do so, Lessor may, at its sole option, require Lessee to pay
an amount equal to (1) the highest rent paid for any month since the
opening of the Station, or (2) the average monthly rent for all
stations that have been open for at least six months, whichever is
greater.
ARTICLE 23.
MISCELLANEOUS PROVISIONS
23.1 Covenant of Quiet Enjoyment.
Lessee, subject to the terms and provisions of this Agreement
concerning payment of the rent and observing, keeping and performing
all of the terms and provisions of this Agreement on its part to be
observed, kept and performed, shall lawfully, peaceably and quietly
have, occupy and enjoy the demised Premises during the Lease Term
without hindrance or ejection by Lessor or any persons claiming under
Lessor.
23.2 Force Majeure.
Any delay in or failure of performance by either party under this
Agreement, except in respect to the obligation to make payment, shall
not constitute default if and to the extent such delay or failure is
occasioned by any cause reasonably beyond the control of the party
affected ("Force Majeure"). Force Majeure occurrences include but are
not limited to: acts of God or the public enemy, sabotage, war,
mobilization, revolution, civil commotion, riots, strikes, lockouts,
fires, accidents or breakdowns of equipment, floods, hurricanes or
other actions of the elements, restrictions or restraints imposed by
law, rule or regulation or other action or failure to act of
governmental authorities, including failure to issue necessary permits
or licenses. In any such event, the party claiming Force Majeure shall
notify the other party in writing and, if possible, of the extent and
duration thereof and shall exercise due diligence to prevent,
eliminate or overcome such cause where it is possible to do so and
shall resume performance at the earliest possible date.
Notwithstanding the foregoing, the party which has received a notice
of Force Majeure hereunder shall have the right to delay or suspend
its performance hereunder during the period of Force Majeure.
23.3 Provisions Binding.
Except as herein otherwise expressly provided, the terms hereof shall
be binding upon and shall inure to the benefit of the successors and
assigns, respectively, of Lessor and Lessee. Each term and each
provision of this Agreement to be performed by Lessee shall be
construed to be both a covenant and a condition and shall run with the
land to the fullest extent permitted by law.
23.4 Notice of Default.
In the event of any alleged default on the part of Lessor hereunder,
Lessee shallgive written notice to Lessor in the manner herein set
forth and Lessor shall have a period of thirty (30) days in which to
cure any such default or, if such default cannot be reasonably cured
within such thirty (30) day period, in which to in good faith commence
such cure and thereafter diligently proceed therewith to completion.
In no event shall Lessor be responsible for any indirect or
consequential damages incurred by Lessee including but not limited to
lost profits or interruption of business as a result of any alleged
default by Lessor hereunder.
23.5 Short Form Lease.
EX. 10.3-22
At the request of either party, the parties will execute an
appropriate short form of this Agreement for purposes of recording
with respect to the Premises.
23.6 Rules and Regulations.
Lessee shall comply with all reasonable rules and regulations which
may be adopted from time to time by Lessor, and Lessee, Lessee's
employees and agents, or any others permitted by Lessee to occupy or
enter the Premises, shall at all times abide by said rules and
regulations. Lessor may amend, modify, delete, or add new and
additional rules and regulations upon notice to Lessee from Lessor
thereof. In the event of any material breach of any rules and
regulations so established, or any amendments, modifications, or
additions thereto, Lessor shall have all remedies in this Agreement
provided for in the event of default by Lessee.
23.7 Independent Tenant Status.
a. It is expressly understood and agreed that the relationship
created hereunder is that of a tenant and no other. Neither party
shall have any control or right to exercise any control whatsoever
over the employees of the other party in their performance of this
Agreement, and neither party shall have the right nor shall it attempt
to exercise the right to establish the rate of pay, benefits, hours of
work or other terms or conditions of employment of the employees of
the other party. Neither party shall select, supervise, direct or in
any other way control or seek to control the employees of the other
party. Each party agrees to and warrants that it will comply with all
applicable federal, state, local and other laws and regulations
relating to wages, the payment of wages, the withholding of sums from
wages for taxes and otherwise, and that it will promptly remit to the
appropriate recipients all moneys withheld from the pay of employees
and all moneys due from it as an employer related in any way to the
employment of its employees. Each party further agrees to and warrants
that it will comply with all applicable federal, state, local and
other laws and regulations relating in any way to employment,
including but not limited to those relating to discrimination,
veteran's rights, the hiring of the disabled and worker's
compensation.
b. Each party agrees to defend, indemnify and hold harmless the
other party, its directors, officers, employees and agents, from and
against any and ail damages which may be suffered, incurred or
asserted in connection with, arising out of or in any way related to
any claims asserted against the other party, its directors, officers,
employees or agents, by or on behalf of any employee of the party or
of any supplier of goods or services to the party, under the workers'
compensation act or similar law applicable to the work performed
pursuant to this Agreement.
c. Notwithstanding the foregoing, each party recognizes that
its agents and employees at the Store and Premises frequently will
deal with persons who arc or may be customers of the other party.
23.8 Governing Law; Jurisdiction; Venue.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Arkansas (without regard to Arkansas' law
respecting conflicts of laws), except to the limited extent, if any,
that the laws of the state in which a Premises is located must govern
the creation and effect of interests such as the interest of Lessee in
such Premises. The parties mutually consent and submit to the
jurisdiction of the federal or state courts for ▇▇▇▇▇▇ County,
Arkansas, and agree that any action, suit or proceeding concerning
this Agreement shall be brought only in such courts. The parties
mutually acknowledge and agree that they will not raise, in connection
with any such suit, action or proceeding brought in any federal
EX. 10.3-23
or state court for ▇▇▇▇▇▇ County, Arkansas, any defense or objection
based upon lack of personal jurisdiction, improper venue, inconvenient
form or the like. Notwithstanding the foregoing, if subject matter
jurisdiction for any action exists only in the court(s) where a
Premises is located, then the parties agree that such action may be
maintained in such court(s).
23.9 Notices, Consents, Approvals.
Any notice, consent or approval required, permitted or given in
connection with this Agreement shall be in writing and shall be deemed
given on the day delivered in person or by courier, or on the third
business day after mailed, postage prepaid, by certified mail, return
receipt requested, if delivered to or addressed as follow:
If to Lessor: Wal-Mart Stores, Inc.
Attn: Vice-President, Wal-Mart Realty
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to: Wal-Mart Stores, Inc.
Attn: Wal-Mart Realty - Special Projects
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Lessee: ▇▇▇▇▇▇ Oil USA: INC.
Attn: Vice President, Marketing
▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ Oil USA, INC.
Attn: Retail Marketing Manager
▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Or to such other person or address of which notice hereafter may be given.
23.10 No Waiver.
No delay or omission to exercise any right or power accuring upon any
default, omission or failure of performance under this Agreement shall
impair any such right or power or shall be construed to be a waiver
thereof, but any such right or power may be exercised from time to
time and as often as may be deemed expedient. In the event any
provision contained in this Agreement should be breached by one party
and thereafter duly waived by the other party, such waiver must be in
writing signed by the waiving party, shall be limited to the
particular breach so waived and shall not be deemed to waive any other
breach under this Agreement nor the same breach on any other occasion.
23.11 Severability.
The invalidity or unenforceability of any one or more provisions of
this Agreement shall not affect the validity or enforceability of the
remaining portions of this Agreement or any part hereof.
EX. 10.3-24
23.12 Headings.
The headings appearing in this Agreement are not intended in any
manner to define, limit or describe the scope of any such Article or
article and are inserted solely as a matter of convenience.
23.13 Entire Agreement.
This Agreement and all Exhibits hereto constitute the entire agreement
between the parties and no subsequent change shall be binding unless
reduced to writing and signed by the parties hereto.
ARTICLE 24.
CONFIDENTIALITY
24.1 Confidentiality.
Each party recognizes that it may come into possession of information
relating to the business of the other party which is not generally
known in the industry, which reasonably or logically may be considered
to be confidential or proprietary and which might reasonably be
expected to do harm to the other party if divulged ("Confidential
Information"). Each party agrees, during the term of this Agreement
and for a period of two (2) years after termination of this Agreement
in its entirety, not to disclose any Confidential Information in whole
or in part, to any third persons whatever, nor even to any of its own
employees except those having a "need to know" and otherwise to
protect the confidentiality of such Confidential Information
reasonably and with the same degree of care as it protects its own
Confidential Information. Confidential Information of a party shall no
longer be subject to the foregoing restrictions if it is or becomes
available to the public through no fault of the other party, its
directors, officers, employees, agents, attorneys, accountants or
representatives, or if it is otherwise known to the other party as
shown by written records of the other party at the time of disclosure
of the Confidential Information.
ARTICLE 25
RIGHT TO PURCHASE STATION(S)
25.1 Lessor's Right of First Refusal to Purchase Station.
Lessee may not sell or offer for sale all or any portion of a Station
without first offering in writing to sell all or such portion of such
Station to Lessor upon the same terms and conditions. Lessor may
accept such offer by giving notice of such acceptance to Lessee within
thirty (30) days after the giving by Lessee to Lessor of notice of
such offer. If Lessor does not so accept such offer, Lessee may offer
or sell such Station or portion thereof upon such terms and
conditions. If Lessee does not close such a sale to a third party
within six (6) months after expiration of Lessee's 30-day period of
acceptance, Lessee may not thereafter sell or offer to sell all or any
portion of such Station without first offering the same to Lessor in
accordance with the provisions of this Article.
25.2 Lessor's Right to Purchase in the Event of Acquisition.
In the event that Lessee or Lessee's parent company, ▇▇▇▇▇▇ Oil
Corporation, shall be acquired or be a party to any merger or
consolidation which results in a material change with respect to the
management direction of the Stations. Lessor shall have the option to
purchase Lessee's Stations at fair market value.
EX. 10.3-25
ARTICLE 26
CROSS PROMOTION GIFT CARD
[Deleted]
EX. 10.3-26
Use of the Gift Card for the purchase of gasoline at Lessee's Stations
is subject to immediate termination at any time at the sole discretion
of Lessor without notice to Lessee and without consent of Lessee.
ARTICLE 27.
PRESS RELEASES
27.1 Press Release.
No press releases or other public announcements shall be made by
either party at any time regarding the subject of this Agreement,
except as are mutually agreed upon by the parties.
ARTICLE 28
TERMINATION AGREEMENT
28.1. Termination of July 31, 1996 Agreement.
a. Lessor and Lessee entered into a "Convenience Store, Car
Wash and Motor Vehicle Fueling Station Master Ground Lease Agreement"
dated as of July 31, 1996 and amended July 2, 1998 (the "1996
Agreement"). Lessor and Lessee agree that the Stations subject to the
1996 Agreement will from this date forward be included as part of this
Agreement. Stations open to the public as of September 30, 1998, that
were subject to the 1996 Agreement are identified in Exhibit F of this
Agreement and shall have a lease term as stated in Article 4.2. of
this Agreement.
▇. ▇▇▇▇▇▇ and Lessee hereby mutually rescind and terminate the
1996 Agreement and agree that the 1996 Agreement shall hereafter be of
no further force or effect. Notwithstanding the foregoing, Lessor and
Lessee agree and acknowledge that any and all rights, obligations and
liabilities of whatever kind or nature, which vested, arose or accrued
under the 1996 Agreement prior to the date of this Agreement, shall
and do survive this rescission and termination of the 1996 Agreement.
Executed as of the day and year first above written.
▇▇▇▇▇▇ OIL USA, INC.
By: /s/
------------------------------
Title: Vice President, Marketing
------------------------------
Date. November 5, 1998
------------------------------
WAL-MART STORES, INC.
By: /s/
------------------------------
Title: Executive Vice President WSI
------------------------------
EX. 10.3-27
Date: November 12, 1998
EX. 10.3-28
EXHIBIT A
LISTING OF STORES
SITE PLANS and DESCRIPTION OF LOCATIONS
EX. 10.3-29
EXHIBIT B
STORES ACCEPTED / REMOVED BY LESSEE
EX. 10.3-30
EX. 10.3-31
EXHIBIT C
ADDENDUM
EX. 10.3-32
EXHIBIT D
STANDARD SITE PLANS
EX. 10.3-33
EXHIBIT E
RENT SCHEDULE "A"
EX. 10.3-34
EXHIBIT E
(Page a of two pages)
RENT SCHEDULE "B"
EX. 10.3-35
EXHIBIT E
(Page b of two pages)
RENT SCHEDULE "B"
EX. 10.3-36
EXHIBIT F
STATIONS FROM JULY 31,1996 AGREEMENT
[Deleted]
EX. 10.3-37
FIRST AMENDMENT
To
MOTOR VEHICLE FUELING STATION MASTER GROUND LEASE
AGREEMENT
THIS FIRST AMENDMENT is made this 16th day of Sept. 1999 by and between
WAL-MART STORES, INC., a. Delaware corporation, with offices at ▇▇▇ ▇.▇. ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lessor") and ▇▇▇▇▇▇ OIL USA, INC., a
Delaware corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Lessee").
WTTNESSETH:
WHEREAS, Lessor said Lessee have entered into a Motor Vehicle Fueling
Station Master Ground Lease Agreement dated the 12th day of November 1998,
("Lease Agreement").
WHEREAS, Lessor and Lessee are now desirous of making certain amendments,
changes and alterations to said Lease Agreement to reflect accurately their
intents and wishes.
NOW, THEREFORE, that for One Dollar ($1.00) and other good and valuable
considerations, the sufficiency of which is hereby acknowledged, Lessor and
Lessee agree the Lease Agreement shall be amended as follows:
1. Article 9 - Maintenance, Repairs and Cleanliness of the Lease
Agreement is amended by adding the following:
"9.2 Remodel - Lessee agrees to remodel their facility at the same
time Wal-Mart remodels their store, unless it is agreed by both Lessor
and Lessee that a. remodel is not necessary at the time and/or
Lessee's facility is less than three (3) years old.
Remodel is defined, but is not confined, as:
1. Repainting of all exterior and interior walls and canopies.
2. Remodeling restrooms to ensure compliance with Federal ADA
guide lines.
3. Replacement of all exterior doors and/or repairs to existing
doors and frames.
4. Replace floor tile as needed.
5. Replace ceiling tile as needed.
6. Replace and/or repair canopy and interior lighting as needed.
7. Restriping of parking lot.
8. Replacement of Disabled Parking signs.
9. Renewal or rejuvenation of landscape area."
EX. 10.3-38
2. Exhibit E - Rent Schedule "A" and Rent Schedule "B" of the Lease is
amended by adding the following:
"Minimum Monthly Rent
III Outlot
Monthly rent on an Outlot is set by the Lessor's Realty Committee
on a site by site basis prior to offering to Lessee. Lessee's
acceptance of sites (Exhibit B ) signifies their acceptance of the
minimum monthly rent due on the outlot."
3. Article 7 --Rent of the Lease Agreement is amended by deleting the
first sentence of Section 7.4 and replacing with the following:
"7.4 Payments - Payments of Rent shall be made via wire transfer, or
other method, as directed by Lessor and shall be made for each
calendar month not later than the fifteenth (15) day of the calendar
month following the month for which the rent is calculated."
Except as hereby modified and amended, all other terms, convenants, and
conditions of said Lease dated November 12, 1998 shall continue and remain
without change.
IN WITNESS WHEREOF, the respective parties hereto have caused this
instrument to be executed as of the date herein written above.
WAL-MART STORES, INC ▇▇▇▇▇▇ OIL USA, INC.
By: /s/ By: /s/
--------------------- ---------------------
Its: Director/Wal-Mart Realty/ Its: Senior Vice President
Special Projects Marketing
--------------------- ---------------------
Attest: /s/ Attest: /s/
--------------------- ---------------------
Date: September 16, 1999 Date: September 3, 1999
EX. 10.3-39
SECOND AMENDMENT
to
MOTOR VEHICLE FUELING STATION MASTER GROUND LEASE AGREEMENT
This Amendment (the "Amendment"), dated as of the 15th day of August 2001, and
effective on June 1, 2001, is by and between ▇▇▇▇▇▇ Oil USA, Inc., a Delaware
corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇▇▇") and Wal-Mart Stores, Inc., a Delaware corporation, with offices at
▇▇▇ ▇. ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Wal-Mart").
RECITALS
▇. ▇▇▇▇▇▇ is a petroleum products refiner and marketer who owns retail
gasoline stations located on leased parcels of land either owned or
leased by Wal-Mart or one of its wholly- owned subsidiaries, pursuant
to a Motor Vehicle Fueling Station Master Ground Lease Agreement dated
November 12, 1998 ("Master Ground Lease").
B. Wal-Mart, directly or through one of its wholly-owned subsidiaries,
owns and operates retail stores under the name "Wal-Mart" and
"Wal-Mart Supercenter" throughout the United States. These stores are
located on parcels of land either owned, leased or subleased by
Wal-Mart or one of its wholly-owned subsidiaries. References to
"Wal-Mart" in this Amendment shall include such of Wal-Mart's
wholly-owned subsidiaries, as may be relevant to the context in which
the reference appears.
C. Recognizing the mutual benefits of a cooperative effort to continue
developing the Premises and adjacent areas, ▇▇▇▇▇▇ and Wal-Mart agree
that for the consideration herein described, as well as other good and
valuable consideration, the receipt of which is hereby acknowledged,
the parties agree to the following terms concerning the installation
and operation of ATM's on or adjacent to the Premises.
Therefore, in consideration of the mutual covenants and agreements contained
herein, ▇▇▇▇▇▇ and Wal-Mart hereby agree to amend the Master Ground Lease by
adding the following;
DEFINITIONS
For purposes of this Amendment, the following terms shall be defined as follows:
"ATM Property" shall mean such areas leased or subleased by ▇▇▇▇▇▇ which are
designated for the location of an ATM. Such area will include the ATM as well as
the entire concrete pad area surrounding the ATM.
All other capitalized terms shall have the same meaning as set forth in the
Master Ground Lease.
EX. 10.3-40
ARTICLE 1.
SITE SELECTION
1.1 Site Selection.
Wal-Mart will notify ▇▇▇▇▇▇ in writing of each proposed ATM location
that is either on or within a fifty foot radius of the Premises. Only when the
proposed ATM. location is on the Premises shall such notification be in the form
of final, specific and detailed plans and specifications for the construction
and/ or installation of the ATM. Within thirty (30) days of being notified of a
proposed location on the Premises, ▇▇▇▇▇▇ will accept the location provided that
in ▇▇▇▇▇▇'▇ reasonable judgment such location does not interfere with the
Station's traffic flow or other Station operations. If ▇▇▇▇▇▇ does not accept
the location on the Premises, the parties may enter into reasonable discussions
in order to reach agreement on the location of the ATM on the Premises. If after
reasonable discussions, Wal-Mart and ▇▇▇▇▇▇ can not agree on the location of the
ATM on the Premises, then neither party will have the right to place an ATM on
the Premises. Alternatively, Wal-Mart may choose a new location on its property,
that is not part of the Premises, for the placement of the ATM.
ARTICLE 2.
ATM CONSTRUCTION, INSTALLATION AND MODIFICATION
2.1 ATM Construction and/ or Installation
a. Wal-Mart, agrees that each ATM shall be properly permitted
by the ATM provider and that construction and/or installation
shall be pursued in a diligent manner so as not to unreasonably
disrupt ▇▇▇▇▇▇'▇ business,
b. If Wal-Mart is unable to negotiate the payment of all ATM
construction and installation costs by the ATM Provider, ▇▇▇▇▇▇
agrees to share equally with Wal-Mart in the construction and/ or
installation cost of each ATM to be placed at an existing
Station, up to a maximum amount of $2,500.00 per site ($1,250.00
net to ▇▇▇▇▇▇), the balance of which is expected to be paid for
by the ATM Provider.
▇. ▇▇▇▇▇▇ will not pay any costs associated with the
construction and/ or installation of an ATM at a new Station, as
it is expected that-the ATM Provider will pay such costs.
However, ▇▇▇▇▇▇ shall, during the construction of any new
Station, perform all necessary site work for the ATM Property,
including but not limited to, installing a line of conduit
capable of supporting electrical service and other necessary
cables, to the ATM. Property at the location shown on the final
construction plans for the ATM, which is formally agreed to by
both parties upon receipt of the construction start letter by
▇▇▇▇▇▇. Wal-Mart shall use commercially reasonable efforts to
cause the ATM provider to pay for these costs. If Wal-Mart-is
unable to negotiate the payment of all ATM construction and
installation costs by the ATM Provider, ▇▇▇▇▇▇ agrees to share
equally with Wal-Mart in the
EX. 10.3-41
construction and/or installation cost of each ATM to be placed at
an existing Station, up to a maximum amount of $2,500.00 per site
($l,250.00 net to ▇▇▇▇▇▇), the balance of which is expected to be
paid for by the ATM Provider.
d. The ATM provider shall ensure payment of any and all
utilities used upon the ATM Property from and after the date
construction and/or installation of the ATM is completed. ▇▇▇▇▇▇
agrees that to the extent it is necessary for any utility
connections to be located at the Station building, that such
connections may be placed, at ▇▇▇▇▇▇'▇ reasonable discretion, in
locations which do not interfere with ▇▇▇▇▇▇'▇ operations
therein. The ATM provider shall be solely responsible for the
cost of installing such connections, but ▇▇▇▇▇▇ agrees not to
charge the ATM provider or Wal-Mart any fees for the location of
such connections.
e. Wal-Mart shall indemnify and hold ▇▇▇▇▇▇ harmless against
any loss, liability claim, damage, cost or expense arising out of
or resulting from the construction, installation, or operation of
the ATM's, or any activity that occurs on any ATM Property,
except for any loss resulting from the negligence or intentional
act of ▇▇▇▇▇▇ its employees, agents, or contractors.
f. At no time during the term or any extension of the Master
Ground Lease for each Premises shall ▇▇▇▇▇▇ allow any lien to be
attached to the ATM Property. In the event ▇▇▇▇▇▇ allows a lien
to be imposed on the ATM Property it shall be considered an Event
of Default for the purposes of this Amendment.
2.2 Modifications
If Wal-Mart, its agent, licensee, tenant or subtenant, wishes to make
any material modifications to any ATM located on the Premises, Wal-Mart shall
notify ▇▇▇▇▇▇ in writing of such material modifications, and obtain ▇▇▇▇▇▇'▇
approval of such material modifications, such approval shall not be
unreasonably withheld or delayed. Routine equipment replacement, repair and
maintenance shall not be considered a material modification. ▇▇▇▇▇▇ shall not
be responsible for any costs or expense of such material modifications or any
other modifications.
ARTICLE 3.
WAIVER OF RIGHTS
3.1 Waiver of Rights
▇▇▇▇▇▇ hereby waives its rights pursuant to Article 3.2(a)(iv) of the
Master Ground Lease to request Wal-Mart's approval to install ATM's on the
Premises and such provision is hereby deleted. Wal-Mart shall have all such
rights pursuant to the terms of this Amendment to construct and install ATM's on
the Premises or assign such rights to an ATM provider.
EX. 10.3-42
ARTICLE 4.
RENT REDUCTION, PROFIT SHARING AND MONTHLY REPORTS
4.1 Rent Reduction
[Deleted]
4.2 Profit Sharing
[Deleted]
4.3 Monthly Reports
Not later than the fifteenth (15) day after Wal-Mart receives a.
monthly income report from the ATM provider, Wal-Mart agrees to furnish ▇▇▇▇▇▇ a
monthly report reflecting all income derived from the ATMs as referenced in
Article 3. ▇▇▇▇▇▇ shall have the right to audit or cause to be audited such
report at ▇▇▇▇▇▇'▇ expense within one (1) year after the end of the month which
is the subject of the audit. If possible, all reports are to be sent to ▇▇▇▇▇▇
electronically. In the event that an electronic report cannot be generated,
Wal-Mart agrees to send the reports to;
▇▇▇▇▇▇ Oil USA, Inc.
Attn: Senior Vice President, Marketing
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EX. 10.3-43
4.4 Documentation
Upon request, Wal-Mart agrees to furnish to ▇▇▇▇▇▇, from time to
time, such information and backup documentation as may be reasonably
requested by ▇▇▇▇▇▇ relating to the determination of Profit Sharing
payments. ▇▇▇▇▇▇ shall reimburse Wal-Mart any cost associated with the
production of such information and backup documentation.
ARTICLE 5.
INGRESS AND EGRESS
5.1 Ingress and Egress
▇▇▇▇▇▇ and Wal-Mart shall at all times allow the other party,
it's agents, suppliers and employees and its customers the right of
ingress and egress to the ATM sufficient to conduct and encourage
business. When the ATM is located on or within a fifty-foot radius of
the Premises, Wal-Mart and ▇▇▇▇▇▇ shall use best efforts to route all
traffic in a manner so as to minimize interference with ▇▇▇▇▇▇ and
Wal-Mart's business.
ARTICLE 6.
MAINTENANCE, REPAIRS, AND CLEANLINESS
6.1 By Wal-Mart
a. Wal-Mart, its agent, licensee, tenant or subtenant, shall be
responsible, at its cost and expense, for all repairs,
maintenance and replacements for the ATM and the ATM Property,
including but not limited to, the mechanical and electrical
equipment and systems which comprise the ATM, and all other
fixtures, appliances and facilities furnished or installed on the
ATM Property by Wal-Mart, its agent, licensee, tenant or
subtenant.
b. The ATM Property shall be kept in clean condition and
appearance by Wal-Mart, its agent, licensee, tenant or
subtenant, and shall be properly operating twenty-four (24) hours
per day. (Subject to reasonable time for maintenance and
repairs.)
ARTICLE 7.
LIABILITY INSURANCE
7.1 Liability Insurance
Wal-Mart agrees to obtain or cause the ATM provider to obtain and keep
in force and effect at all times commercial general liability insurance with
respect to the ATM and ATM
EX. 10.3-44
Property, with minimum limits of liability of two million dollars ($2,000,000)
combined coverage per occurrence. Such insurance will name ▇▇▇▇▇▇, its
subsidiaries and affiliates, as additional insureds and will contain a provision
that it is cancelable only upon not less than (30) days' notice in writing to
▇▇▇▇▇▇. Upon request, Wal-Mart or the ATM provider agrees to provide ▇▇▇▇▇▇
copies of the declaration page(s) of the policy(ies) reflecting all of the
foregoing. Wal-Mart or the ATM provider may self-insure the above coverage so
long as Wal-Mart or the ATM provider maintains a net worth of or more. If
requested, Wal-Mart will provide or cause the ATM provider to provide evidence
of such insurance to ▇▇▇▇▇▇ within thirty (30) days after said request.
ARTICLE 8.
MISCELLANEOUS
8.1 Non-Fuel Rent
▇▇▇▇▇▇ and Wal-Mart agree that any and all payments made by Wal-Mart
to ▇▇▇▇▇▇ pursuant to this agreement shall not be considered "non-fuel sales and
revenues" as referenced in Exhibit E of the Master Ground Lease. Therefore,
▇▇▇▇▇▇ does not owe Non-Fuel Rent of 3% on such ATM revenues.
ARTICLE 9.
INDEMNIFICATION
9.1 Indemnification of ▇▇▇▇▇▇.
Wal-Mart shall indemnify ▇▇▇▇▇▇, its directors, officers, agents,
employees and owners to the extent of their interest in the Premises, and save
them harmless from and against any and all losses, claims, actions, damages,
liability, and expense, including, without limitation, reasonable attorneys'
fees in connection with loss of life, personal injury, or damage to property
arising from or out of any occurrence in, upon, or at the ATM Property, or the
occupancy or use by Wal-Mart of the ATM Property or any part thereof, or
occasioned wholly or in part by any act or omission of Wal-Mart, its agents,
employees or contractors, except to the extent caused by the negligence of
▇▇▇▇▇▇, its agents, employees or contractors.
ARTICLE 10.
ASSIGNMENT
10.1 By Wal-Mart
Wal-Mart may assign its rights or obligations under this Agreement to
an affiliate or subsidiary without notice to ▇▇▇▇▇▇. Any other assignment by
Wal-Mart requires that thirty (30)
EX. 10.3-45
days written notice be provided to ▇▇▇▇▇▇. Wal-Mart agrees to remain liable for
the obligations in Sections 4.1 and 4.2 regardless of any subsequent assignment.
ARTICLE 11.
DEFAULT
11.1 Default
If either party under this Amendment defaults or fails to perform its
obligations herein, the non-defaulting party may give written notice to the
defaulting party, and if such default is not cured within thirty (30) days of
such written notice, either party may pursue all remedies available to it under
applicable law or equity.
ARTICLE 12.
TAXES
12.1 Taxes
Both parties agree that Wal-Mart, its agent, licensee, tenant or
subtenant shall make every effort to cause the ATM Property to be separately
assessed for real property tax purposes. Wal-Mart, its agent, licensee, tenant
or subtenant shall be responsible for the timely payment of all general and
special real property taxes and assessments and all other government charges
levied, assessed or imposed with respect to the ATM Property and all
improvements constructed thereon and all assessments for local improvements, if
any, attributable to the ATM Property. If the ATM Property cannot be separately
assessed for real property tax purposes, Wal-Mart, its agent, licensee, tenant
or subtenant shall pay that amount by which such real property taxes have
increased by reason of improvements to the ATM Property. Wal-Mart, its agent,
licensee, tenant or subtenant shall have the right to contest an assessment for
and/or levy for any taxes which Wal-Mart, its agent, licensee, tenant or
subtenant is obligated to pay under this article.
ARTICLE 13.
MUTUAL WAIVER OF SUBROGATION
13.1 Mutual Waiver Of Subrogation
Wal-Mart and ▇▇▇▇▇▇ each hereby releases the other and its respective
employees, agents and every person claiming by, through or under either of them,
from any and all liability or responsibility (to them or anyone claiming by,
through or under them by way of subrogation or otherwise) for any loss or damage
to any property (real or personal) caused by fire or any other insured peril
covered by any insurance policies for the benefit of either party, even if such
loss or damage shall have been caused by the fault or negligence of the other
party, its employees or agents, or such other tenant or any employee or agent
thereof.
EX. 10.3-46
Executed as of the date and year first above written.
▇▇▇▇▇▇ OIL USA, INC. WAL-MART STORES, INC.
By: /s/ By: /s/
------------------ ------------------
Title: SENIOR VICE-PRESIDENT, MARKETING Title: Director, Wal-Mart Realty
EX. 10.3-47
THIRD AMENDMENT TO MOTOR VEHICLE FUELING STATING
MASTER GROUND LEASE AGREEMENT
THIS THIRD AMENDMENT TO MOTOR VEHICLE FUELING STATION MASTER GROUND
LEASE AGREEMENT is made this the 1st day of August, 2002, by and between
WAL-MART STORES, INC., a Delaware corporation of ▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with offices at ▇▇▇▇ ▇.▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (Attn: Realty Management, No. 44-9384) (hereinafter referred
to as "Lessor"), and ▇▇▇▇▇▇ OIL USA, INC., a Delaware corporation, with offices
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as
"Lessee").
WITNESSETH:
WHEREAS, the Lessor and Lessee have entered into a Motor Vehicle
Fueling Station Master Ground Lease Agreement dated the 12th day of November,
1998, (hereinafter referred to as the "Master Ground Lease"), affecting certain
Stations on one or more of the Premises or Outlets owned, leased or subleased
by Lessor, as amended by that First Amendment to Motor Vehicle Fueling Station
Master Ground Lease Agreement dated September 16, 1999, and that Second
Amendment to Motor Vehicle Fueling Station Master Ground Lease Agreement dated
August 15, 2001.
WHEREAS, Lessor and Lessee are now desirous of making certain
amendments, changes and alterations to said Master Ground Lease to accurately
reflect their intents and wishes.
NOW, THEREFORE, in consideration for One Dollar ($1.00) and other good
and valuable considerations, including but not limited to the mutual covenants
and agreements contained herein, the sufficiency of which is hereby
acknowledged, with all capitalized terms having the same meaning as set forth in
the Master Ground Lease and any amendments thereto, Lessor and Lessee hereby
agree to amend Exhibit E of the Master Ground Lease as follows:
EXHIBIT E
(Page a of two pages)
RENT SCHEDULE "B"
[Deleted]
EX. 10.3-48
EXHIBIT E
(Page b of two pages)
RENT SCHEDULE "B"
IN WITNESS WHEREOF, the respective parties hereto have caused this
amendment to be executed as of the date and year herein written above.
WAL-MART STORES, INC,
a Delaware corporation.
By: /s/
---------------------------
Title: Vice President Wal-Mart Realty
▇▇▇▇▇▇ OIL USA, INC,
a Delaware corporation.
By: /s/
---------------------------
Title: Sr. Vice President, Marketing
EX. ▇▇.▇-▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
I, as Notary Public in and for the County of Benton, State of Arkansas,
certify that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ personally known to me to be the Vice President of
▇ ▇ Realty of WAL-MART STORES, INC., a Delaware corporation, came before me this
day and acknowledged that he, by authority duly given and as the act of the
corporation, signed the foregoing instrument in my presence.
Witness my hand and official stamp or seal, on this the 11 day of
February, 2003.
/s/
------------------------
Notary Public
My Commission Expires: [SEAL]
STATE OF ARKANSAS
COUNTY OF UNION
I, as Notary Public in and for the County of Union, State of Arkansas,
certify that ▇▇▇▇▇▇▇ ▇▇▇▇▇ personally known to me to be the Sr. V. Pres. Mkt. of
▇▇▇▇▇▇ OIL USA, INC., a Delaware corporation, personally appeared before me this
day and acknowledged that he, by authority duly given and as the act of the
corporation, signed the foregoing instrument in my presence.
Witness my hand and official stamp or seal, on this the 27th day of
January, 2003.
/s/
------------------------
Notary Public
My Commission Expires: [SEAL]
7-6-09
EX. 10.3-50
