Free Notice (Other) - District Court of California - California

Case 5:07-cv-04808-JF

Document 38-3

Filed 06/06/2008

Page 1 of 64

EXHIBIT C

TO SECOND AMENDED COMPLAINT

I 16

Case 5:07-cv-04808-JF

Document 38-3

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Page 2 of 64

BP West Coast PrOducts LLC ~

i

.GUarantee Agreement Individual

Facnnty¡,~ The undersigned NaZim Faauirvn and (spóus~, If marred), intending to .00
legally bound hereby and in considerätion of. BP West Coast Products LLC, organized In Delaware (hereinafter
called "BPWCP") advancing credit to STTN Enterorlses. Inc. (hereinafter

called "Debtor"), and also In Debtor for petroleum products and other merchandise, or (b) to extend credit, advance mon~y, or defer time for payment
consideration pf BPWCP, at its sole discretion, (a) agreeing to any additional crdit at any time hereafter to

of any money due or to become due under contrct or obligation ansiiig from any le.ase or löan, or (c) to extend credit in any other manner to, or at the request or for the account of Debtor, either with or without secunty (all such

liabilty and obligation of Debtor to BPWCP now or hereafter existing being hereinaftr referred to as
"Obligations"), do hereby jointly

and sevèrally gi.arantee and agree to pay to BPWCP, upon demand, all of the Obligations together with interest thereon, .snd any and all expensé$, Including bUt not liiTed tö, reasonable attomeys' fees which may be incurred by ~PWCP in collectng ¡:ll or any of the Obligations .anclor enforcing any

rights hereunder; it being furter understood and agreed that the liabilty hereunder of the undersigned shall be
unlimited as to the amount of Obligations covered

by this Guaranty.

The undersigned waive any right to require BPWCP to (a) proceed against Debtor or any other part; (b) pro~ed
against or exaust any security held from Debtor; or (c) pursue any other remey Ii, BPWCP's power wIatsoever.
The undersigned waive any defense based on or ansing Qut of any defense of Debtor other the indebtedess, Including without limitation un any defense based on or arising

than paymnt In full of
out of UUe disability of Debtor, or the

enforceabilty of the indebtedness or any part UUereof fro any cause, or the cèsation from any caUse of the liabilty of Debtor other UUan paymnt In full of the Indebtenes. BPWCP may. at its electon, foreclose on any security held by BPWCP by one or more judicial or nonjudicial sales whether or not every aspect of aoysucl sale is commercially reasonable, or exercise any other right or remedy BPWCP may have against Debtor, or any security, without affectng or impairing in any way the liabilty of the. undersigned excet to the extent the indebtedness has been paid. The undersigned waive any defense arising out or any such electon by BPWCP,

even though such elecon operates to impair or extnguish any right of reimburSement or Subrogation or otler right

or remey of the undersigned against Debtor or any serity. Until all indebtednes of Debtor to',BP.VlCP shall have been paid in full, even though such indebtedness'is in excess of the undersigned's liabilty'hereunder, .tle :,.
undersigned shall have no right of subrogation and waive any right to enforce any reedy which BPWCP now llas '. .
or may hereafter have against Debtor, and waive any benefit of, or any right to partcipate in any securit

hereafter held by BPWCP, . ;:" .:
manner and with the sameèffec as if each of them had signed separat Guaranty shall not be rèvoked or impaired a~ to any areor more of such partes by the death. or by

'nW. or.

If this Guaranty is exected by two or more partes, they shall be severlly lI.able h~reunder~ and'the Word'
"Unc;ersigned" wherever used herein shall be constred to refer to each of such partes separated, all in the same.

instrments; and in any such case this
of any of thè others.

Execledat .thiS_U_daYOf~ .20~.

the revoction or release of any liabilites hereunder of anyone or more of such other partes.

, I

Witness
Residence of Guarantor (street, city, state, zip code)

~~",t'"";Guarantor - SpOuse

Witness
ReSidence of Guarantor (street, city, state, zip code)

. Subscribed and swom to before me this

.2ó;- day of

( hÁ-r¿ -

,.200 l,

'RequlÆd In all states

i 17

/.

Case 5:07-cv-04808-JF

Document 38-3

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Page 3 of 64

BP West Coast 'Products LLC ~

bU3rantee Agreement

\

Individual
The undersigned

legally bound harebyand in considertion of BP West Coast Products LLC, o(ganized in Delaware (hereinafter

Saved Faàuirvan and (spouse, If marred), intending to be

Facility: 82461

called "BPWCP'~) advancing credit to STTN Enterprises, Inc. (hereinafter CëlIed ~Debtor"), and also in consideration ofBPWCP, at itS sale discretion, (a) agreeing to any additional credit.itany time hereafter to Deb~or for petroleum products and other merchandise, or (b) to extend crecjit, advanceironey, or defer time for payment
of äny money due or to become due under contrCt PI" obligation arising credit In any other manner to, or at the request or for

from. any lèaseor roan, ór(c) to extend

the Debtòr, éitheri,lth or Without security (all liabilty and obligation of Debtor to BPWCP now acunt of or hereafter existing ~Ihg hereinafter referred tosuch as

"Obiigations"), do hereby joIntly and severally guarante and agree tô p¡:y to BPWCP, upon demand, all of the

Obligations together with interest thereon, and any and all expenses, including but noi limited to, reasonable
attorneys' fees which may be incurrd by BPWCP in collecting all or any of the. Ubllgations and/or enforcing any
rights hereunder; it being furter understoo

unlimited as to the amount of Obligations covered by this Guaranty.
The undersigned waive any right to require BPWCP to

and agred that the liabilty herender of the. undersigned shall be

against or exhaust any secrity held from Debtor; or (c) pursue any other reme in BPWCP's power whatsoever.
The undersigned waive any defense base on or arising out of any defense

(a) prod against Debtor or any other part; (b) proceed

of Debtor other than of Debtor, full of the indebtedness, including without limitation any defense based on or arising out of the dissbilty payment inor the
un enforceabilty of the indebtedness or any part thereof fr any cause, or the

liabilty of Debtor other than payment In full of Uie indebtedness. BPWCP ma, ceaton from any causeon any at its election, foreclose of the security held by BPWCP by one or more Judicial or nonjudicial sales whether or not every aspect of any such sale is commercally reasonable, or exercise any other right or reme BPWCP may have against Debtor. or any

securi, without affecting or impairing in any way the liability of the underigned exCept to the extent the
indebteness has ben paid. The undersigned waive any defense ariing out of any such electon by BPWCP.
even UUough such electon operates to impair

or remey of the undersigned against Debtor or any security. Until all indebtedness of Debtor to BPWCP shall have been paid in full, even though sudd indebtednes is in excess of U'e undersigned's liabilty hereunder, the

or extinguish any right of reimbursement or subrogation or other right

undersigned shall have no right of subrogation and waiv any right to enforc any ren which BPWCP now has
or may hereafter have against Debtor, and waive any beneft of, or any right to partcipate in any secunty now or hereafter held by BPWCP.

If this Guaranty is executed by lwo or more partes. they shalf be severally liable ttereunder, and the word
"undeigned" wherever used herein shall be constred to refer to each of such partes separated, all in UUe same
manner and with the same effec as if each of them had sigried separate instments; and Guaranty shall not be revoked or impaired. as to anyone or more of such. pares or by the revocation

in any such case this by other partes. or release of any liabilties hereunder of anyone or more of suchthe death of any of the others

Executed at

, UUis -2 - day of -4JI;

II i

Witness
Residence of Guarantor (street, city, state, Zip code)

"3/~~

,20~.
;-

Guarantor - Sayed F aquiryn

Witness

Guarantor - Spouse

Residence of Guarantor (stret, city; state, zip co)
*'. Subscribed and swöm to before me thl$

¿pM day

of

¿;; ,-. . n-'

~~~ ........y,.

. NotaiyPüi:lic

"Required in an slate

~~. ..=~~..

, 2oâ¿,

1 18

Case 5:07-cv-04808-JF

Document 38-3

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Page 4 of 64

EXHIBIT D TO SECOND AMENDED COMPLAINT

119

Case 5:07-cv-04808-JF

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Page 5 of 64

,.
Customer ,\çct!tQ993690

bp

Facility #82592 Category: Rebrund

CONTRACT DEALER GASOLINE AGREEMENT

T?is Contract Deall: G~soline 6,gcement (ths "~eemcnt") is made ~d enrered into as of the
Products LLC, a Delaware limíted liability company, ("HPWCP"), and

ot () / ~ . - --CC ,('EffectIve Date")by and between BP West Coast
STrN Enterorise.~. Inc. a California Con)oratioii ("Buyer").
(st,iewhethc a sole proprietorship, p::mhíp; .:Orpofoiíon or limiled liabilty company ¡LLCj; if~.rtnorhip; ¡he n.me of 311 p.rtL~ and Staic 0( organization; if corprarion, tho State of ,ncorpor:iion; if aii U£. the Siate of org.niZ3tíoni

day

BPWCP maintain a place of busness at 4 Ccnremointe Drive. in the City of La Palma. in the State of Californa. Buyets principal place of business is locatcd at 63 t San Feline Road in the City of Hollster, in the State of CA \Vith
(he ZrP code 95035. This Agreement constitutes ~ "fumcruse" as defined in tbe PerroleumMarketing Practices Act, 15

u.s.e. §§ 2801-2806 ("P!'IPA").

Recitals
A. BPWCP markets motor fuels comprising gasolines and gasoline containing materials bearing (he
ARCOCI trademark and o(ller identitYing symbols (herein collectively, "Gasolinc").
B. Buyer O"-"f or leases from a thd party real property aDd imrovements which Buye.r would like to

operate as a retail facility selling Gasoline to eOO users. The proper and improvements arc located at 631 S,irr Fe!ipe

Road. in the City or Town ofHoUister in the State of CA wirl the ZI code 95035 (The "Premises").
NOW, THEREFORE, the partes hereto agree as foUows:

i. Term. This Agreement shall be binding upon rle paries and effective on the dat.: first set fort above.
Subject to earlier ternalÌon under Paragraph 17.1 below, the "Commencement Date" of this Agreement shall begin at

10:00 a.m. on the and the term shall end at 10:00 a.m. on the. If no Commencement Date is set fort at the tie this Agreement is executed, the Commencement Date sh:ll be establislled by BPWCP by notice to Buyer as the date the
Premises are ready to receive Gasoline delivery, wruch notice shaU also set fort the expiration date which shall be at

lO:OOa.m. on the tirs day afterÙle (XXl 12'" or 0 120ih or () 240'" full calendar iinth following the Correncement
Date. If no tie is checked, Ùle box for 120th sh:J1 be deemed checked. In addition, BPWCP may, at its discretion,

extend the term of this Agreement for a period of up to i 80 days by givig written notice to Huyer before the end of the

tetI

1.2 Construction or Raze and Rebuild. IJ this Agreement is for Prcmises tht require new constction oJ

an ARCO branded gasoline tåcility or therag and rebuilding of an AReO branded retail facility, Buyer win promptly

undertke such new constrction or rebuilding and complete .such constrction or rebuildig and be ready to receive. Gasolie delivery withiii 24 months, in tlle c::e of New Constrction. or 12 months, in the case of a Razing and
Rebuilding, of rle Effective Dllte of this Agreement 1£ trus Agreement is tor Premses that require remodeling or retrofit, Buyer will promptly underte such work and complete such -remodelig or rerrotit and be ready to teceive Gasoline
delivery \..ithn nie months of rle Effective Dare.

Orders. Buyer wil ordi: and make a\railable for retail sale an grades of Gasoline which BPWCP offers to Buyer
(hereinafter collectively, "Product'), in amounts sutTcjent to satisfy all foreseeable retail cutomer demand for
Product at the Prcinises and wil at all imes IIave a..'ailable for sale

Page 1 of 18
ARCO 40.WR-1(412006) CDGA

BP 03039

120

Case 5:07-cv-04808-JF

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only to allocation of PPoduct by BPWCP in a manner determned in BPWCP'ö sole discretion in Buyets geogr:phic ilea. BPWep wiH us~ its best dfor.ts to tjU Buyets orders; however. BPWCP may liiscontinue Pm duct at any time upon fifteen (15).cal¡¡dar days' prior written nolÌce to Buyer. At salt of auy gmdi: of BPWep's ..ole discretion. SPWe? reserves the right to provide AReO branded mOlOr fuels solely through au automatic Gasoline ordering and delivery system and to not accept individual orders placed by Buyer.

Buyer agrees to accepr and pay for such Product as BPWCP delivers to the lrt=ses. Buyer shall provide
accurate and timely inom1ation as reasonably requested by BPWep in conriectioii with the aUtomatic
gasoline inventory and delivery system.

3. No Wholes:ling. Buyer will sell Product only to end users for their personal use in
volumes not exceeding the capaciry of each customds motor vehicle fuel tank, any auxiliary fuel tan
directly linked to the cus\omets motOr vehicle engine. aiid an approved, properly labeled emergency

cont:iner capable of holding ten gallons or h:ss. The Premises shall be open for busine..s scven (7) calendar days a week for a minimum of t\velvc (12) con.ccutive hours each day.

4. Deliverv. BPWep ..viII deliver Product imo Buyers storage t::ciliries descrbed below.
Title to ::nd risk of 1055 of Product will pass to Buyer upou delivery into Buyer's srorage facilities. BPWCP alone will select the method ::nd mode of shipment and delivery. BPWCP expressly reserves the right to supply Product to orner retail outlers whether owned ::nti operaTed directly by BPWep or by independent
OVv"!crs ::iid ()pcr:mrs, regardless of how near or l::r such other retail outletS may be locate1: rel::t1ve to the

Premises.
5. Prices. For Product deli'/ered herew1der, Buyer wil p::y the price specified by BPWep

in effi:ci at the time and pJace of delivery for purchasers in Buyer's class of trde. Price shall be subject to

change at any time, at the eJection ofBPWCP, -without notice. Should BPWCP elect to provide notice of price changes, it may do so by telephone, or at BPWCP's sole ekction, tàcsimilc or eli:ctroiiic transmision. Buyer must have the capability to receive notices of price changes and invoices at the Premises by facsimle to enable Buyer to compete more effectively with or electronic tr.insmisiol1. At BPWep's sole discretion,.
Buyers competitors, HPWCP may from time to time grant Buyer a "tempora voluntary allowance"(TV A) applicable to PTOduct 10 be sold by Buyer under this Agr=ent from metered dispenser. on the Premies. If BPWep detemmes mat Buyer has accepted TVAs on Produci which is not sold to motorists :It retail lhough the metered dispensers on the Premises, BPWCP may tennnate thi Agreement, and the amoW1t of

any such TV.' shaU be due by Buyer to BPWep on demand and BPWCP may offset such amount against payable by BPWep to Buyer. BPWCP may condition ;be payment of allowances on Buyees any sums

observa.nce of maximum retail sellng prices determned by BPWCP or max.irum gross profit magi
detered by BPWCP or a reduction in Buyer's retail sellng price conunen.ur::re with the amoW1t of the allowance.

6. Payment. Unless BPWep extends credit to Buyer as provided below, Buyer wil pay for
Product prior to its deliver¡ in U.S. dollars. BPWep shall require a product advance payment

approximtely equal to the cUfTmt cost of an average delivery of Product. BPWep may ÌDcrease or decreae ihe amount l)f the advance payment at any tie to reflect curent prices and Buyer will pay any
additiorul amowii necessar if the advance payment is increased. Payment wil be made by electrnic fuds transfer intiated by SPWC?, wire traaisfer, cashiees chd:k or business check, whichever BPWCP directs,
delivered by Buyer at the time and place as designated by BPWCP. Buyer's financial institution through which payment by electronic funds traiisfcr initiled by BPWCP is made must be a memer of NAerLA-

(The National Automated Clearing House Assocition). Payment wil be deemed made when,check. aU and ony
when, its receipt has been verified by BPWCP. If this Agreement requires or permts payment by

checks shall be made payable 10 "BPWCP" ¡)r "BP West Coast Products LLC," and to no other person, fir

or i;nrity. If thi Agrcemcnl requires or permits payment by wire trltfer, all such payments sllallbe made to" BPWCP, do Citibank NA. For Credit to BP West Coast Products ;;4051-4874 ABA 021000089. New Yark. New York 10043," aud 1O no other ban or account uumber tmless 50 advised Ì1i wrting by the Credit Manager, BPWep. If this Agreement requires or permits payment by automated clearing: house ("EFT"),
all such payments shall be

made to "BPWCP". cía Citibank Delaware, For Credit TO BP Wen Coasr

Products - ACH 1/3815-2114, New Castle, Delaware 19ï20," .and to no oùier bank or aCCOIUtt number

ARCO 40-WR1 (4/2006ì

20r i8

BP 03040

GDGA

12 I

Case 5:07-cv-04808-JF

Document 38-3

Filed 06/06/2008

Page 7 of 64

unlt:ss so advied in writing by the Credit Mana¡;er, BPWCP. rr dú Agreement requires or permits

payment by electronic funds tr..nster ("EFT"), all such payments shall be made in strict accord with
procedures established ::nd promulg::ied by BPWCP - Buyer agrees to indemnifj BPWCP for any loss or expense caused by Buyer's !àilure 10 comply ',y.ith thi Paragraph. Upon demand. Buyer will rejmbur:c
BPWCP the amount of any temporary vO\lUitary altowance erroneously applied to Product other than

Product sold iuder th Agreement from metered disensers on me Premises. In addition to any other
remedies available to it, BPWep may otTset against any future iemporary voluntary allowance or againt other amounts owed to Buyer the amount of any reimbursement to wrnch BPWep is entirled if Buyer fails to make any payment or reimburement when due. Buyer acknowiedges and agrees that BPWep's receipt of paylIient due hereunder after rhe issuance of a notice of termnation or iionrenewal does not constirute a
waiver ofBPWCP's icrniiiiation or iionrenewal rights.

.. Credit. BPWep may in its sole discretion crom ti~ to tie extend credit to Buyer in
whatever amoiinl~ anå on whatever term BPWCP alone sekcts. ItBP\VCP exiends Buyer credit, BPWCP may wimdraw it at any rie without notice and for any r~;¡son. In BPWep's sole judgment. BPWep =y do any or aJl of the following: (i) require that Buyer pay for Product by cashier's check. or bank wire

transfer prior to delivery, (ii) require tJ!t Buyer post an irevocable letter of credit issued by a bank
satisfactory to BPWCP, (iii) require Buyer present evidence of linancial solvency, and (iv) declare Buyer in
default of this Agrement if Buyer fails to pay any indebtedness when due, provide

evidence of linancial

solvency upon request or comply with any other term of thi Agreement. Buyer agrees that regardless of whether and for how long BPWCP ha extended it credit, BPWCP may cease extending credit at any time
and instead require that payment be made in the

manner set fordi in uús Paragraph or in Paragraph 6 above.

8. Non-confornnties. Buyer ",ill notiy BPWe? in writing of the exact natue of any

nonconfonnity in the type, quantity or price of any Product delivered to Buyer within thirty (30) calendar which
days aftet delivery. Buyer bereby waives any claim against BPWCP based on any iionconÎormty of

Buyer does not so notify BPWep.

9. Record Keepinl!. For each delivery of Product, Buyer shall al all times keep a detailed record of the date and tie of delivery, and the grde and amount of Product ddivered expressed in ierm
of gallons. To asist BPWCP in detenrùiig the necessity of any tempor.. volunta allowance descn"bed

in Paragrph 5 above, Buyer wilI (i) sell all Product through metered dispensers w!úch shall indicate the
grde and amount of gasoline purchased, (ii) allow BPWep to inpect Buyer's Product dispensers,

recorders and meters, and books and records relating to delivery aDd Product inventory, and (iii) allow
BPWep 10 ascertai the volume ofProductin Buyer's storage facilities.
10.

EQuiiiment.

10.1 Storal!c aDd Dispensers. Buyer v,.n mainiain storage tanks or other appropriate facilities on me Premises into wIDch Product can be delivered. Buyer \vil ensure that the storage facilities

are compatible with BPWep's delivery equipment and Product fommuiations; ihat its storage facilties .,;.11
accommodate such miniúm quaniities per single delivery as BPWCP may seiect and that the Premises are configured in such a \vay that Product can be delivere to the Premises consistent with all applicable fire

laws and regulations and other governental requments. Furer, Buyer win ensure that all dispensing dcv;ces and Stomge tåcilities al all times be properly permtted and completely comply with ail applicable

govemmenro requIrennènts and any specifications which BPWCP may issue from tie to time. Buyer further agrees thai Buyers molor fuel dispening deyices shall be equipped at all ties with Product fiters with ten (10) IDiI;ron fitering capacity. Withoul resncring any right or remedy of BPWCP, or imposing
any duty or liability upon BPWCP, upon BPWCP's request, Buyer will promptly furnish BPWCP "áth
wrtten evidence that Buyer's dispensing devices and stOrage facilities comply v.ith all goverrntal
requiremenns and provide copies of represematives to

underground storage tank permits and speciffc::ons. and allow BPWCP

inspect the dispensing devices and storage faciliiíes to confi such compliance. BPWCP

may suspend deliveries in the event that Buyer does not provide written evidence iJt the dispensing
devices aud srorage facilities comply \vith aI! governmental regulations.
BP 0304 i
3 of 18

ARCO 40 WR-1 (4/2006)
CDGA

122

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10.2 PIC EQuipment. Uiùess rhe Premies are located

in the state or Oregon, Buyer

is required by SPWCP to purchae or lease the PayQuick ¡sland Cashier ("prC Equipment") and insial! it at die Premises. The pic Equipment shall be of ¡he rype. number and configuration specitied by SPWCP.

(a) Buyer agrees to use the pic Equipment anly in co!Uie.ctioii with the operation of BPWCP authorized businesses. Buyer agrees o.ot to tamper \virh alter, change. dislodge,
dispiace, remove or otherwise interfere with the operational integrity of

the pic Equipmel1t.Buyer agrees

to mainrain PrC Equipment in a clean anåtuIly operational condition at all ries for the convenience of
Buyer's cusiomers.

íb) Buyer will be responsible for all maintenance and repir of the PIC Equipment. Buyer wil contract for maintenance services through BPWCP approved service providers and understands that BPWCP wil not provide any irimenance and repair serviccs.
(c) BPWCP wil provide tr.aiiúng to Buyer and ùp to 5 employees designated by
Buyer to attend trainig. Traing is irndatoty for Buyer or Buyer's designated manager. There is no
tuition tàr such training, but all expenses in connection wirll such tr::ining must be borne by Buyer. If

Buyer

fails to attend tTaining when originally scheduled, there may be a fee of SlOOO to attend training.
(d) Buyer's pic Equipment wil

have one or more cash acceptors, except if, in

the sole opinion of BPWCP, .Buyer's Premises are appropriate exclusively for debit only p¡e Equipment. Cnless the Premises have no cash acceptors, Buyer agrees to comract wirh an BPWCP approvi.'' licensed

and bonded armored security servce to do the following: make cash pick ups ou a regular basis, bUt not less frequently than once per week, maintain poss~sion of all keys to the outer door and the vaulr of ¡he PIC Equipment, handle an removal of cash cassettes from the pie Equipment and reinstall all empty cassettes
or in their
into the pic Equipment. Receipt paper wil be changed only by armored securiiy personnel

presence.

(e) Buyer is required to instal! and operte the BP\VCP approved Video Surveilance Equipment. the di:tails of which wil be provided to Buyer and which may be changed from tie to time by BPWCP. In addition, .Buyer must instal!, keep operational and use one or more video surveilance cameras dedicated to recording the customer aC!Ívity at i:ach Ptc.
(f) Buyer is responsible for maintaing a supply of receipt papi:r at the premises
to be used in the PiC Equipment.

(g) BPWCP grants to Buyer a non exclusive right and license to use PiC the
PayQuick Island Cashier service marks, trademarks and trde dress In conjunction with the operation of

Equipment at the Premises in a form prescribed by BPWCP.

including written manuals,
(11) All informtion regarding the pie Equipment,

specifcations, data and instrctions provided to Buyer are conñdenúal and proprii:tary infommationof
BPWCP and shall reman the exclusive property of

BPWep and shall nor be duplicated, in whole or in part

by Buyer and sh:ll not be used other than as set fort herein and shall be maintamed in coiitidence .ind .Dot disclosed ¡o anyone without the prior wrinen consem oCBPWCP.

(i) Upon 180 days prior written !lotice, Buyer may be required to upgrde the
PiC Equipment or purchase and install more technologiC3!IY advanced cash, debit or other payment
equipment in accordance wiU1 BPWep's sytem wide

equipment requirements at that time.

ij) Buyer will install BPWCP approved Point of Sale equipment which is
necessary to operate the PiC or other required payment equipment. Buyer will ensure that its Point of Sale cqllipment and motor tuel dispensers are compatible \Vith the pie Equipment. In addition, VSA T sateUite
equipment is required for telecommunic.¡¡ions purposes tòr. which tbw: is a fee for connecrion,

repositioning and mainttnaiic~.

"or 18

BP 03042

ARCO 40 WR-1 (4/2006)
CDGA

123

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1 I. Le~k Prevention ~iid Detection. Buyer acknowledges and ::gre::s tht with respect to
JIlY Product stor::g~ facilities locaæd on tle Premies, incJuding ivitlout limirorion underground storag~

tank ::od related equipment, Buyer is solely re$ponsible for taking, and wil rake the ¡allowing leak and water contamition prevention Jad deteçtion measures:
1 i. i Stick Readin~s. Using a properly calibrated wooden ttnk measuring device
and water finding paste, Buyer will gauge Product storage tank for inventory l05S or water gain on a dai1y

basis.
i 1. ReiolJcilations, Utilizing daily stick readings to the nearest one eighth (I/S)

inch and dispenser'meter readings. Buyer wiJ take and reconcile ope:g and dosing irventory levels by

grade, induding deliveries.

11. Record Retention. Buyer wiU keep daily reconciliation records available ou the Premises for at le3st five (5) years.

11 A Monitorin!!. Buyer ."ill ascertain and perform any :md all other monitoring
procedures required by applicable laws, regulations or goverreotal authorities.

1 1.5 SecondarY Containment. Buyer will ascertin and perform any and all
construction or retrofitting necessary to satisiy or comply with tbe seconda containent standards for
underground storage tanks required by applicable laws, regulations or governenttl authorities. Buyer wil

~nsure that all delivcni.s of ARCa Product are made into double walled tanks.
lL.6 Notification. Buyer will inuiedí::teiy investigate and report to BPWCP and aU
appropriate governental authorities (i) :my detectable loss or suspected loss tht exceeds Regulatory

variation limits of any Product, (ii) the activat10n or alarm of any lea detectOr or other contiuous monitoring system, (iii) the discovery of any broken weights and measures seals or other seals in aiiy
Product dispenser, (iv) the discovery of any visible leak in any PToduct dispenser, Product piping or

submerged pumps, (0;) any change in the condition of rhe land or surface adjacent to fill boxes or
disensers, (vi) water in excess of oue inch (1 U) in any storage container, or (vü) :my spils or overflls that

are not imediately and properly contained ami cleaned up. In the event of the OCC1JIenCe of any of (i)

through (vii) above, Buyer shall imediatdy irvestigate in accordance \virh regulatory leak dett,-ction
requirmenrs. rf a le:: is confrmed an Product mut be removed ttom the storage ta immediately and
the tan secured. In addition, Buyer will keep fil caps tight, keep fill

boxes free of di. ice and snow, and

imediately remove any water in excess of one irch(l U) in any Product storage tank Buyer ",ill not pemnt any .Product to enter any public or private water syste.II storm drain or sewage disposal system.
11. Trainin1!. BP may offer trinig on environmental compliance. Such training

wil not exceed four (4) hours and \\ill be offered on an annua basis or a lesser frequency if specited by BP. The trinIng ,villbe tuition (ree, but any expenses in connection with such traing shall be bomeby the
Franchisee,
12.

Gasoline Re!!u!ations.

11.1 Com¡Jliance. BPWCP win ensure that upon delivery to Buyer by BPWCP, aU

gasoline. wil meet die specificarions for lead and phosphorus set forth in the regulations promugated by
the United Stares Envionmental Protection Agency (uEPAU). Buyer will enure that

no gasoline purchaed

from BPWCP is tampered with or contamated in a way tht could cause the gasolire not to meet the
EP A's spccifi.c;Üons or any other specitications required by law. Buyer \vill immediately ce::e dispensIng
any gasoline that is deterIned not to meet such specifications

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12.2 Disclosures and Warnings. Buyer

acknowledges ¡hat it has been fully

informed of and is ::ware of the n:tue and exisience of risks posed by transportng, storing, using, handling
and being ei-posed lo Product. Buyer wil iiiorm its employees, agents, conrrctors and customers of such
risks. Buyer wil displõiy, publish and disinbute any safeiy warnings or disclosurcs as may be requested or

required by BPWCP or any govemincntl authoriiy ITom time to time.

IJ.

Tans.
13.1 Payment by Buver. Buyer wiJl pay promptly whcn due and hold BPWCP

haress from all tacs. ex:cise fees and other $imil::r charges (including interest. penalties and additions to

la'() which BPWCE ìs rroiv or in the fmure required to payor collect under arry federa~ state or loc:l

governmental requiement based on the maiiiactue, production, sale, rrnsfer, rrnspon.ation, deliver,
storage, handling, consmption or use of Product iider this Agreement. or on any paymnts made: W1der

ths Agreement (exceptig any income tax imposed on BPWCP based on income received. from Buyer and
any interest or penalties thereon). BPWCP rna-y, at its sole option, add any such tax. excise fee or simlar

charge to the amount to be charged for Product. Buyer wiU also pay promptly when due and hold BPWep
harnlcss !Tom all fees and sales. use. rentaL gross receipts, inventory. excise, incoI1e and other t:xes

(including interest penalties and ::ditions to ¡ax but not including any income tax imposed on BPWCP based on income received nom Buyer and any interest or penalties thereon) imposed by any federal, state or ¡oca.1 govcrnental authority upon Buyer or BPWCP in connection with the operation of Buyer's business.

13.2 Inapplicabiltv or ReseUer Exemption. With respect to Product purchased
hereWlder, Buyer hereby waives any exerupnon and agrees not to assen any right of exemption from
payment to BPWCP of taxes regularly collected by

BPWCP upon delivery of Product to purchaers with

Buyer's clas of trde by virte of any reseller or whol.esah:.distnòutor exempiÍou to which Buyer may

presently or herealier be entitled under any provision offederal, state or local law regulation or order.

13.3 Tax Information. Buyer will provide BPWCP with Buyets motor fuel seller
number and use tax registr..ion rrumber. Furher, Buyer. will .provide BPWCP Vvith any infommnon requested by BPWep relatig to tax credits claimed by Buyer for motor fu~~ sales, use and other taes paid by Buyer in coiiection with the Product for the purpose of resollring any theatened or pending tax dispute
with any governental authority or for the purpose of confiring Buyer's compliance with

the teff of this

Agre.:ent.
14.

Tr::demarks and Trade Dress.

14.1 Compliance. Within one hundred fity (ISO) calendar days aftcr the
eomim:ncement Date if this is the first agreement between Buyer and BPWep for the supply of BPWep for the supply of

Product at

the Premises and upon the Couunencement Date if this is not the first agreement between Buyer and
Product at the Premises, tmess BPWcp. consents othcr...ise in wrting, Buyer wil have fully complied with alI trademarks anti tr..de dress requirements set fonh in Exhbit A. Thereafter,
thoughout the tenn of ths Agreement, Buyer shall fully comply with an trademarks and trde dress

requirements as they may be changed from tIme to time. Notwthstanding the foregoing, Buyer must have the AReO LD. sign LD. pole, price pod~, and decal specifications for pumps and dispensers as described
in Exhibit A (as it may be changed from time to time) in place as soon as Buyer is sellng ARea branded Product but not laler ùinn the fift delivery of Product hereunder and iiot before Buyer is sellng AReO

braded Product under the ARCa imdeni:s described below. Buyer hereby agrees tht BPWCP may and
acknowledges tht in all likelihood BPWCP wil change such requirements from tie to tie. Buyer wil

conform .its trademarks and trade dress to all such changed requirements within ninety (90) calendar days
after receiving written notice !Tom BPWCP of any change. In .its sole discretion. BPWC1' may loan to Buyer various items of trade dress such as sign, il1umiiiated sign poles, sign faces '.vth a rrumerals let and pum identitication signs. Buyer hereby agrees that any trde dress which BPWCP provides to BLiyer hereunder shall reirin The propert of BPWep regardless of whether it .is aíTxed to th Premises. Buyer shall ensure thai no such loant:d trade dress is removed from the Premises by persons other tlian BPWCP or

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its represematives ~ithcr during or after the term of ¡his Agreernenr without 8PWCP's prior ""TIlten consent.

Buyer shall be::r the cost of maimaing, repair and replacing stich loaned trade dress.
14.2 Licenses. During the ter of this Agreement, in connection with the resale of
Product, Buyer may display the trademarks, trade names, advertising, signs, devices, ôymois. slogans,

designs and other trade indicia adopred, used or authorized for use by BPWCP irr connection with Product
(collectively. "Marks"), provided that (i) Buyer operates ihe Premises seveil (7)

calendar days a week: for a

mÌlUIum of twelve (12) cOl1securíve hour each day, (ii)the Marks are only displayed or used in the

manner specitied by BPWep. and liii) all trdemak righrs resultig from such display or usge shall inure to BPWCP's benefit. BPWe? reserves ¡he right to substitue another trdemark for AReO i)r withdrw or modify any of the Marks or Ù1eir manner of display without prior notice to Buyer. Upon receivng notice of

any withdrawal or modification of die Marks or substitution of another trdemak, Buver will fulv
implement any moditiGatioil or termnation or substirucion within ¡he time specified in the n~tice and siicii

other trademark shall be deemed substituted for the "ARCO" trdemark in all referenc~ to Gasoline and
Product in Ù1is Agrement. If Buyer fails to compiy fully with any notice. of

withdrawal or moditication. in

addition to any other remedies av:i1ablc to BPWCP for breach of ths Agreement, BPWep may demand
that Buyer immediately remove all Marks from the Premises at Buyer's sale expense. lfBuyer fails to do

so. BPWep or BPWCP's contrctor may enter the Premises and remove all Marks, and Buyer will reimburse BPWCP for such removaL.

1;1.3 Shared ~:xpenses. BPWCP wi11 reimburse Buyer a ponion of the cost of acquiring, transporting and intallng certin signs and other trde dress required hereunder and set forth in Exhibit. B, as specified below. The amount of such reimbursement shall be die lesser of (i) one half of
Buyer's acruaJ veriiiable cost, or (ii) the maximum ::mouni indicated on Exhbit B. The reimbursement shall

apply on a one-ttme oiúy basis to the Premies durg its entire frchise relationsliip with BPWep
regardless of

whether this is the tirst or a subsequent agreement be!\veen Buyer and BPINCP for the supply of Product at the Prenúses. Buyer shall be solely responsible for the cost of maintaining, repairng and

replacing all trade dress. Request for the foregoing reimursement shaH be in writig and accompanied by all original invoices (of which Buyer shall keep copies). Upon receiving such a request, BPWCP shall inspect Buyets faciliiy to conf that the trade dress is of the proper tye and properly installed and verify
Buyer's actual cost. If BPWel' confi tht the trade dress meets BPWCP's requirements and verifies

Buyets submilted cost as aecurate,then BPWep shal either reimbure Buyer the amount described above or pay the entire cost of such trade dress directly to the thrd part vendor. whichever BPWep alone with five (5) calendar days after chooses. If BPWCP elects to pay the third par vendor directly, then made, Buyer wil remit to BPWCP the receiving notice from BPWCP that such payment will be or has been

difference between the amount of the invoice and die amount of BPWCP's reibursement as calculated
above. Furer, BPWCP may arrange diectly with a third party vendor to satisfy the requirements of this

Paragrph 14.3 ard coHect from Buyer in adv.ce upon five days' norice, an amount equal to the tota ma."Cur reimbursements to wbbch Buyer is entided under ths Paragrph and Exhibit B, to cover Buyer's
share of the cost ofcrade dress expenses. Shoul the amunt of tls advance payment exceed one half of

the actual cost of satisfying the trade dress requirements herein BPWCP wil refund the excess amount to
Buyer. If the amount of the advance payment is less than

the actual cost of sarisfying the trde dress

requirements herein then Buyer shan pay BPWep the amount of the deficiency upon demand. (n addition

to aU other remedies available to it, BPWCP may offset against aiiy amounts owed to Buyer, the amunt of Buyer may be obliged to any remittance t)wmg to BPWCP hereunder. Notwithiading this P::agrph 14.3,
pay BPWCP for any reimburements received and direct vendor payments made by BP'NCP hereunder
upon the termination or nonrenC'Nal of this Agreement as specifed in Paragraph 17.3.

l4A Restrictions. Buyer wil not adulterate, mislabeL. mibrand or conialnnate
PtOåuct add any ingredients to Product without BPWep's prior n"TÌtten consent; use any Mark except in

~oiiecrioll with genuine ..\ReO Product; claim any right, title or interesr in or to the Marks; directly or
indirectly deny or assail or :\sist others in. denying or assailiiig the sole and exclusive ownership ofBPWCP
in and to the Marks; r~gister, adopt as irs own property, or use or asist others in registering, adoptig, or

using any trdemarks. trade names. advertsing, signs, devices, symbo Is, slogans, designs, or other trde indicia cooifl.singly similar to the Marks; or commit other trademrk violations or acrs that could disparage
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the

Marl- or adversely affect the value of (he maks or BPWCP's goodwil and Qwnership riehts hereto.

/\ny iight~ to any

Marks obtained by Buyer conirry to (he foregoing shall be held in a-t i'¿r BPWCP and, upon request. Buyer wiil assign siich rights Iree of charge to BPWCP.

i4.5 Standards. The Prem~ musi be clean, well maintajiied, and graftti free. with smictiircs, driveways and pavement in good repair. BPWCP will perform periodic inspecrions for which rcpe¡¡ted tai1ure ()r poor performnce is g.rounds for termtion or nonrenewal of th Agreement.
i 5.

Compliance amI Indemnifcation.

I? ¡ .ComDlianee With Laws and Re!!iil::tions. Buyer shall comply wïth any and all applicable federal. state and Io.al laws and regulations, includin those pert::ining to human health. safety or the environment. and shàll funlicr comply with any and all pemmts or license pertining to the Premises.
Any references in this P::ragraph 15.1 (0 laws or regulations shall include all such laws aaid regulations
perr::iiiing to Producl or the air, or surface or subsurface water, surface or subsurÜice soiL

and the handling,

storage and disposal of haz:rdous substances, materials or wastes, or solid wastes (whether or not detined
as hazardous by such laws or regubtions), and vapor recovery and \'apor recovery equipment Buyer shall

comply with any and all openitig, reportng and record keeping laws and regulatioos, as well as all
operating, reportmg and record keeping procedures designed to ensure that no unauthoried release of any

Product occurs. and that iii the event any Product is released, an applicable reportng, record keeping and
cle:mip requirements arc fully complied with.
15.2 Indemnifcation. Buyer ",in indemnify and hold haimleo$ BPWCP. its

affùiates, subsidiaries, shareholders. directors. nmcers, einloyees and other represcnmtives (and
shareholders, clectors, offcers, employees and other represeiitatives of such affliates and subsidiaries) Paries") from and aga.inst all claim, causes of action. liabilities, suiTS. demands, (collectívely, "Inemnified.
legal proceedings, governmental actíons, losses and expenses, including without limitatioa reasonable

expert and attorneys fees aad costS L collectively, "Indemnfied Expenses"), arising out of (i) any breach by

Buyer (or any of its officers, employees or representatives) of any provision of this Agreeinnt (ii) the
storage, leakge or other release of Product on, or from the Premies. liii) any cleaup, remediation or

response activity conducted or ordered under applicable law, (iv) Buyees use. or occuptlncy of the Premises, BPWCP-owned equipment or any other the business or use, custody or operation of
(v) Buyer's operation of equipment on

the Premies, t::tceptig any loss or damage arising soleiy fTom BPWCP's negligence or tã.ilur to perform its obligations hereunder, or (vi) any intentional or imintentional violarion by Buyer of

any governnt requirement applicable to the PreITses or Buyer's storage or sale of Producl or the
disclosure or waring of risks associated with Product at the Premises. This indenmification obligation

shan survive the ternnarion or Domenewal of this Agreement
15.3 Liabiltv for C11::r!!es or Fines. In the event tht BPWCP becomes liable for

payment of any charges or fiacs ars.ing out of Buyer's noncompliance wim ::ny governmental laws or re¡,'ulations or Buyets falur to secure any necessa licenses or pemúis or renewals thereof. now or

hereafter necessary, in connecrion with the possession and use of the equipment and other property or the conduct of business on the Premises or Buyer's failure to pay any taxes. imposts or charges imposedey any governtal authoriry, BPWCP shall have the right to charge Buyer the amount of any such charge or fine
paid by BPWCP.

15.4 RCDortine:. Buyer shall report to BPWCP with 24 hours each incideiice of major
personal injury or ciiinial actvity. All other incidences of personaJinur or criminal acriviryshall be

reported as soon as pracricable, but in no event later than 72 bours. Buyer wil display display signagc
regmding BPWCP's crie deterrnce and reward otTer in the manner specified by BPCWP. BPWCP in its sole discretion in which case, Buyer will reserves the right to cllige or withdmw any reward offer notice. remove or replace the signage immediately upon
16. Insuriim:e. Buyer shall obuuin and maintain throughoUt the term of this Agreemenr each
of the following fornis of

insurance irom a tii¡anc.ially sowid and reputable insurance carrier: (i) workers'

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compensation insurance including occuparicmal disea:; insnce in accordance with the laws of me St::te: in
which the Premises are 10c:1ted, and employers' liability insurace in an amount of --t least $ 100.000 disease

each employee and S i 00;000 each accidem; a¡¡ò ( ii ) gar:ge liabiliry insuran~e or general liabilirý

insurance, including contracrnl liability, insurng Buyer's indemnity obligation set fonh above, and
products-completed operations coverage, in amountS of at leasf :) l,OOO,OOO combined ;,ingle limit each
occurence applicable to

personal injury, includÜÜg bodily ííjury, sickness, disease or death and loss of or

damage to propert (with liquor law liabiliry coverage if Buyer wiI sell or dispense ::lcoholic beverages),

on which BPWCP is iiamed as an addiconal insured. Buyer. wil fuish BPWCP with cenificate of
insurance evidencing the foregoing coverage and providig that no policy ofinsurace may be cancelled or

materially moditied withoUt at least th (30) calendar days' prior written notice to B PWCP. Buyer hereby

understands and agrees tlt coverage provided BPWCP by Buyer's inurance under thi Agreement is primary inurance' and shall not be considered contrbutOry inurance with any inur~nce policies of
BPWCP.
L7.

Ternùnation and Nnnrenewal.

17.1 TrÌ!meTin!! Events for Termination or Nonrenew::l. In addition (0 any other
ground BPWCP may have iinder Ù1e PMPA, and subject only to any necessary restrctions under applicable

law, BPWCP may terminate or nonrenew this Agreemem upon any of the following trggerig events:
(a) Buyer's failure to exert good faith efforts to caIT out the provisions of

this Agreement following written notice to Buyer from BPWCP of such failme and fifteen calendar days to
cure such failure.
(h) Uninwful, tiauòulent or deceptive acts or practices or criminal

miSCOtiduct by Buyer Tdevant to the operation of the Premises.

(c)
insolvency of

Declaration of bantcy by Buyer or judicial dctermation of

Buyer.
(d) Subject to Paragraph 18.3 hereof: the death or the prolonged severe

physica.l or mental disability or disblement of Buyer (if Buyer is an individual), Buyets majoriry
shareholder (if Buyer is a corpor-ition) or any of Buyets general parmers (iÎBuy~r is a partership) for at least thee (3) month which renders Buyer unable to provide for the contirrucd proper operation of the Premises.
(e)

The loss ofBuyets right to possess the Premises.

(f) The condemnation or other t:lOg, in whole or in part of the PrelTses

pursuant to the power of emient domain.
(g)

The desirction of all or a substanti par of the Premises.

(h)

Buyees failure to timely pay BP\VCP all sums to which BPWCP is

legally entitled.
(i)

Buyer's tàilure to operaie the Premises tor seven (ï) consecutive

calendar days, or any lesser period which constitutes an unasonable period of time.
(j) The wil1ful adulteraiion, commgling, mislabeling or misbranding of
Proåuct or other violations by Buyer of the

MarJc.

(k) Buyets knowing failure to compiy\vith federal, srate or local laws or
cegulatioll relevant to the use or I)peration of the Premies.

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(1) The couvicúon of ~ny fdouy involving mor:1 tuiiude or indictment
for any i:rimimi! misconduct relevanr to the operarion of the Premises ot" Buyer (if

Buyer is an individual),

Buyer's majoriiy shareholder (if Buyer is J corporation), Buyer's majority owning member (if Buyer is an
LLC) or any of Buyer's general parters (uBiiyer is a panership).

(m) The detemiinaôon by BPWCP, made in good faith and in the norml course of business; to witliiirw from the niarke:ting of molar fuel though reiail oudets iii thi: relevant
geographic market area in which the Premises are located.
(n) Tne occurrence of any other event relevant to the relationship between

the paries which makes temual10n or nonrenewal reasonable, including without lirt:uion those set forth
in Paragraph 1i.2 below.
(0) TIie breach by Buyer of any material provision of this Agreement,

which Buyer bereby agrees includes (without limution) ( i ) Buyees failure. to order and make available for sale quantities of ~:Jch grade of Product which ar~ sufficient to satisfy foreseeable customer dem:ind, (ii)
Buyers failure to keep a deuiled record of each delivery of Product to Buyer or make those records

available to BPWCP as provided in Paragraph 9, ( iíi) Buyer's f::ilure to t:ke any of the leak prevention and

detection measures outlined in Paragrph 1 I, (iv) any attempt by Buyer to asign any interest il this
Agreemenn without BPWCP's prior wrttn consent, and (v) failure to complere constrction or rebuilding witlùn the rimm as set fort in Paragrph i .2.
(p) If Buyer is a part with BPWCP to a Loan Agreement or a Loan

Agreement and Secuuiy A.greement aud Related Promissory Note, and Buyer rails to cure my default under

the foregoing Loan Agreement, Loan Agreement and Security Agreement and Promissory Note as requested, BPWCP may temiiate th Agreement.
17,2 Tn!!!!erÍlI! Events for NonrenewaI. In addition to any oiler ground BPWCP

may have under tlie PMPA, and subject only to any necessary restrcnons under applicable law, BPWCP
m:y Qonrenew this Agreement upon any of the following trggerg events:

(a) Buyer's failure to agree to changes or additions to its franchise

relationship with BPWCP, wbich BPWCP requests based on BPWCP's detemrnarions made in good faith
and the normal course of business and without the purpose of preveUting ù1e reUt:wal of the franchise relationship.

concerning Buyccs oppration of the PreJ1es, of which Buyer wa apprised and, to the extent they

(b) BPWCP's receipt of numerou.~ bona fide curomer complaints Jelated

to the condition of the heinses or conduct of Buyer or Buyer's employees, which Buyer tàiled to cure

promptly.
(c) Failure of Buyer to operaie che Premses in a clean safe and heaithi

manner on at least two previous occasions.
(d) A good faith detennination by SPWCP m:de in itS nomm! course of

business that renewal of ¡hettanchie relationship is likely to be uneconomical to BPWCP despite any
reasonable chages or additions to the a.greements bemecn the pares, which may be acceptable to Buyer.

17.3 Effect oeTermination or NonrenewaL After re':eiving notice oftermnation or nonrenewa! ::nd until the effective date of the termnation or nonrenewal, Buyer wil continue to operaie the Premises in accordance with this Agreement
(a) From and after the effecrive date of iemlination or nonrenewal, Buyer

wiB inunediately discominue all use of trde dress and Marks associated with BPWCP, including without

limitation use of such (Tade mess and Marks on dispensers, pumps, containers, storage equipment,
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buildings, canopIt:s, pump islands, pole sigii, advertising, sbiìonery and invoices. From and after the eeTective daie of termination or nonrencwal, Buyer mil not adopt or use any trademaks trade dress or symbols in the operntion of ¡he PrelIses rhat .are ~onfirgly simlar to BPWCP's, including wirhoùt
limít:nion. any tour lettcr namc or mark stang with ( i ) the letter "A" or ( ii) any vowel and .having the
letter "R" as a second letter, and Buyer will

not use or employ:l a symol, mark or design any geometric
and

design that is red orany colored horizontal striping tht is predolInately red

blue. Further, Buyer wil

remove fn)m all rradc direciories and telephone book ¡¡stings all reference to the Marks. Upon the effective
date of the termnation or nonrenewal, Buyer wil promptly rerurn to BPWCP or destroy, whichever

BPWCP directS, all signs, advertising, grphics and other materials in Buyer's possession bearng any
Marks or used in any trade dress. In addition, Buyer hereby agrees that BPWCP may enter rhe Premises to remove ar cover up any trade dress or advertisemenlS bearng any Marks. If Buyer termtes or docs not
rent:'.\! this Agreemenr or if BPWCP tennnates or does not renew tms Agreement for:: reason set fort.

in

Paragraph 17.1 or 17.2 above. d1en Buyer shall pay for the removal or covering up of all trde dress and

iraderrrks as required hereunder. For a reasonable period following the dfecrive date of Buyets

temmination or nonrenewal and at no charge, ßPWCP may keep any BPWCP property stil located on ¡he Premises iii place whiJe negotiting fOt ilS sale or removal.
(b) If this is the tirs agreement between Buyer and BPWCP for rhe supply

of Product at ihe Premises, Buyer wil repay BP\VCP aU reimbursements and direct payments made by BPWCP under P:iragraph 14.3 upon (i) the murul termnation of this Agreement prior to or at the end of
the lÏrst r.velve months. (iiJ the tennnarion of this Agreement by BPWCP or Buyer during rhe first twelve months or (iii) the norrenewal ()f this Agr.:ement by BPWCP or Buyer at the end of the fut twelve months the PMP.-\). (if this is a trial franchise as defined under Secrioii 2303 of
(c) If this Ls t!1e first agreement /Jtweea Buyer and BPWCP tor the supply

of ?roduct at the Premises with a term of more than one year and Buyer has been :: parr to an agrement .
regarding

Product for less than thirt-six month, then after the the Prerrses "'oith BPWCP for the supply of first twelve month Buyer v.ill pay BPWCP, on a J2 rata basis as descrbed below, the amount of all
of this Agreement or tennnai:ion or nonrenewal by Buyer or by BPWCP for a reason set fort

reimbursements and direct paymnts made by BPWCP under Paragraph 14.3 upon the mutU"11 termation
in Paragrph
i 7.1 or 17.2 above. The Q! rata amount which Buyer is obligated to pay shall be calculated by multiplying

the total of the reimbursements and direct paymems made by BPWCP under Paragraph 14.3 ties (a) tWo-

thirds durig the thteenth through twenty-four month of ths Agrement or (b) one-thd durng the
twenry-tlfth through thi-sixth month of

th Agreement

is.

Assi~nmeiit. lle:ht of First Refusal and Successors In Interest.
is.l AssI!!nment. Buyer wil1 not sell, (or alow Buyer's foreclosing lender to

complete a sale). assign give or otherwise trnsfer, any interest in th Agreement. its franchie relationship
..ith BPWCP, or its ownership, leasehold or suleaehold interest in the rea ¡rropert or imrovements on

that constitute the Premises, to any invidual or entity other than BPWCP, without first complying\\'Ìth Paragraph 18.2 below and obt::g BPWCP's prior wrtten consem to such transfer, which consent shall
not be unreasonably delayed or wiùùe!d. Furer, if Buyer is a corporation or partership or LLC, neither

Buyer nor any shareholder, member or parter of Buyer win sell, assign give or otherwise trnsfer, or
mortgage, pledge :I securty or otherwe encumber any shares of stock, parership interest or orher ownership interest in Buyer to any individua or entirywirhout BP\VCP's prior wrttcn consent. Ta el1c
tht BPWCP ha adequate tie to evaluate any assig!mem or transfer request. Buyer will allow BPWCP at Ie-..st sixty (60) çalendar days to evaluate any assig=ent or transfer request. A request for consent made

less than 45 days bdore the expiration date of thi Agreemet wiI be considered a rcque.st for consent to the rene\v;; agreement, provided that one has been offered to Buyer. Buyer ac1aow!edgcz and àgrees that
any transfer. encuinbrancé. attempted rransfer or attempted encumbr.mce wmch does not satify these prerequisites shaJl be void and withoUt eí1"ecr. Buyer fuer acknowledges and agrees that BPWCP may

impose a trnnsfer fee upon any transfer or encumbrance of Buyer's ¡merest in ilS fr.nchise relationship with BPWCP. The ice is cl1rrendy .) i ,000, buu BPWCP reserves the right to raise the fce to a maximum of
S4,OOO.

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a 40 WR-1 (4/2006)

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BP 03049

130

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Document 38-3

Filed 06/06/2008

Page 16 of 64

18.2 Rj1!ht of FirS1 RefusaL. In return for valuable con:ider:tlon, Buyer's receipt of

which is hereby admowledged, (i) upon receiving or extending any tiDal offer to acquire any or alt ~f Buyet5 interest in this Agrement. its franchise relationship with BPWCP, or its ownership. leasehold or subleasehold imerest in the real property or improvements that constitute the Premses, wherher conveyed
though a. business broker or directly, to any entity or person orher than Buyds currem spouse or adult child (natural or adopted)or (ü) upon the recordation of a Notice of Default thar commences Buyer's leiidcr's foreclosure of a mortgage or deed of trut encumberig the Premises. Buyer shall offer mch interest to

BPWCP, in writig, at the same price and on the same other term as those çontained in ¡he tina! offer or Norice of Default. Buyer shall give BPWep a complete, legible copy of the ffnal otIer including a
breakdown of thi: ;¡mount for real prcperr, equipment and goodwill, an agreementS in coouuection with tho:

proposed 5ale and the nai: and addre5S of the proposed buycritrsferee.. In the c:se of foreclosure, tbe
price will equal the ainounn requied to pay rhc foreclosing lender to termnate the foreclosure procecding.

Buyer ~ball give BPWCP a complete, It:gible copy of the recorded Notice of Default and any later recorded Noti~ of Sale. BPWC'P shall have thy (30) calendar days after its receipt of all data and documentation . required by it to evaiuate the offer and exercise itS righi of fit refual by notifying Buyer in writing thill it intends to exercise itS right of ffrst refual and agreeing to pay Buyer thi: purchascprice. less the amount of
any applicable tr::fer ree, On the term stated in the tinal offer, or the al1ount required to pay the

foreclosing lender to terminte the foreclosure proceeding, as applicable. Durg the 30 day period,
BP\VCP 5b::I have the right of entrj upon the premises to conduct reasonable environment::l testing. If BPWCP exercises itS right of fit refusal, e::ch time period in the final offer wil be automaticaHy c:ttended assign its right of so thmit 5tlrts on the date that BPWCP exercised ¡is right of firsr refusaL. B.PWCP may
first refu:::l to any third part. IfBPWCP does not exen:ise its right ofCirst n:Mal, Buyer

may consummate

the proposed iransfer, bur iiot at lower price or on more favorable term than those offered to BPWCP. If Buyer does not do so within one hundred eighty (180) calendar days afrer the date BPWCP received
Buyets written offer, rhen Buyer mUS recommciice the foregoing right of first refùal procedure and satisf¡

the requirement~ of this Paragraph 18.2~ BPWCP's exercise of its right of tirst refual shaH not be
dependent 011 its prior refusal to approve the proposed trnsferee. Buyer agrees to execute a memorandum of this Agreement to be re.corded in the Offcial Records of rhe county where the Premises are located and
take all other action necessar to give effect to ths right of fit refuaL.

18.3 Successors In Interes. Notwithstanding Paragraphs 13.1 and r 8.2. if upon the

dc-dth or ÍDcapacitltion for more than ninety (90) consecutive calendar days of Buyer (if Buyer is a natural
person). a gi:neral parter of

Buyer (if Buyer is a partership) or a majority shareholder of Buyer (itBuyer

is a corporation), or majority-owning member of an lie (if Buyer is aii LLC). ilie interest in this
Agreement of such deceased or incapacitated person passes directly to an eligible person or persons whom
the deceased or incapacitated has designated as his

succesor in interest in wrtig in a romi prescribed by

and tiled \Vih BPWCP, and who notifies BPWCP within twenty-one (21) calC1da days afer the death or incapacitation of his intention to succeed 10 such interest, rhen this Agreemenr shall contiue for the

remg ter hereof, provided tht such successor in interest agrees in wrting to a5sume ail of the
obligations under this Agreement of the deceased or incapacitated and satisfies BPWCP's then current crieria for simlar franchisees. A person who is eligible to be designted :: succesor in interest is one who
is (i) the adult spouse or adult child (nannl or adopted) or parent of the deceased or incapacitated: (iì) a

gener:l parer of the deceased or incapacitated (iil a fellow shareholder of the deceaed or incapacitated,

(iv) a fellow member of me deceased or incapacitated or, (v) if Buyer is a sole proprietor, a designared legal
heir. Only the most recently propi:rly designated successor inÍIterest wil be recognized as such: If Buyer

ha a .spouse and designates someone other than Buyers 5pouse, Buyers spoiise must agree to the d~igmition.
¡SA BPWCP's Ri1!ht to .cUsÍ!!:n. BPWCP shaU have ¡he unrestricted right to transfer

or assign all or any part~ of ¡t~ righrs or obligations under this Agrcemenl, including irs right of first refusal
described in Paragraph \8.2, to any person or legal entiiy.

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BP 03050

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19.

Miscellaneous

19.1 Rh!lil "f .Fntrv. Buyer hereby gives BPWCP the right to enter the Premises at all reasonable times and without prior notice, to detennic Buyets compliance witli the provisions of thi .'\greement. BPWCP may determim: Buyets compliance by any means BPWCP selects. including wii:out Product limtation, the sampling and t:boratory testing of
19.2 Successors and Assi!!ns. Ths Agreement shall be binding It?on and inure to the

benefit of ¡he patt!:s hereto and their respective successors and assign: provided, however, that Buyer shall
have iio right to ::sigT this Agreement, either volllrarily or by opeî..tíon of law, except as provided in

Paragraph 18 above.

19.3 Force Ma ¡cure. In the event that eitlier par hereto shall be delayed oninable
to perform any ::ct required hereunder by reason of Act of

Nature, strikes, lockouts, riots, insurrection. war,

governental ::et or order, or other reason of a like nature not the fault of or in ttu: control or the party

delayed in performing work or doing acts required under the term of this Agreement. then perfornnce of such act shall be excused tor the period of the delay. The provisions of thi Section shall not operate to excuse Operator from prompt payment of all fee or any other payments required by the temm of this
Agreement.

19.4 Notices. Except as limited by applicable law or as othern,ise stared in this
Agreement, any and all notices and other communications hereunder shall be deemed to have been duly
gi\'en when delivered personaly or forty-eight (48) hours after being mailed. certified or registered m::il or

overnight mail, return receipt requested, postage prepaid, in the English language, to thc Premises if to Buyer and to the address set fort on the first page of ihis Agreement if to BPWCP, im!ess otherwse
directed in ""Titing by BPWCP.

19.5 Relationship of tbe Parties. .Buyer agrees that nothig in thi Agreement
er~tes a joint venture, agency, employment paroer:;hip or simlar relationship between it and BPWCP, and
Buyer

shall have no authority to bind BPWCP in any way. Buyer wil not àssert otherwse. Buyer shall

uiidertake all obligations as an independent contractor and shall exercise and be responsible for the exclusive control of tbe Premes, the employees and all activities conducted there. Operator shall be
responsible for complyig with all the applicable workers' and unemployment compensation. occupational disease, wage and hour, disability and similar laws. BPWCP shall have no contrl over employees of the
Operator. including without limíærion the term and conditions of their employment. Operator shall
continuously display on th exterior of the buiding in a consiciious rnmmer at a point visible and

accessible to the public a legible sign meetig BPWCP's specifications, sho\ving that Operator is the owner of the business being conducted thereon.

19.6 Waiver. No purortd waiver by either part hereto of any provision of tl:;
Agreemeur or of any breach thereof shall be deemed to be a waiver of such provision or breach unless such
waiver is in wrting signed by the part making ~"Uch waiver. No such waiver shall be deemed to be a

subsequeiit waiver of such provision or a ,,;aiver of any subsequent breach of the same or any other
provision ru.:reof.

19.7 Compliance. Buyer shall at all ties comply with all laws and applicable governent requirements and obtain and maintain all necessary licenses and pemmts for the perfornnce of its obligations hereunder.

19.3 Authoritv. Buyer hereby represents that as of the dare hereof. Buyer ha the
authüriry ro enter into this Agreement and that no consents of third partes other thn those which have been obtained and are att..idied hereto are necessary to enable Buyer to perfomm its obUgarions hereimder. Buyer
represents that as of the date of ¡rus Agreement, Buyer is in campHane!: with all leas~, contracts and
agreements ::lec¡Íng the Premises and Buyets use and possession of the Premies.

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BP 0305.1

132

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Filed 06/06/2008

Page 18 of 64

. 19.9 Prior Course oe De::lin~. BPWCP::d Buyer acknowledge and agree that

this

Agreement is not to be reformed, altered, or modilied in any way by any practice or course of dealing during or prior to the term of the Agreement or by any representatio