Free Stipulation - District Court of California - California

Case 5:07-cv-04808-JF

Document 37-3

Filed 06/06/2008

Page 1 of 64

EXHIBIT C

TO SECOND AMENDED COMPLAINT

116

Case 5:07-cv-04808-JF

Document 37-3

Filed 06/06/2008

Page 2 of 64

BP West Coast Products LLC iC

\

Guarantee Agreement

Individual'
Fac1iity,~ The undersigned Nazim Faauirvn and (SpOuse, If marred), intendilTg to.be
legally bound hereby and in consideration of BP West Coast Products LLC. organized In Delaware (hereinafter
called "BPWCP") advancing credit to STTN Enterorlses. Inc. (hereinafter

called "Debtor"), ami also In Deblor for petroleum products and other merchandise, or (b) to extend credit, advance money, or defer time for payment
consideration pf BPWCP. at its sale discretion, (a) agreeing to any additional crdit al any time hereafter to

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

liabilly and obligation of Debtor 10 BPWCP now or he.reafter existing being hereinafter referred to as
"Obligations"), do hereby joinUyand severally g!Jarantee and agree to pay to BPWCP. upon demand, all of the Obligations together with inte'rest thereon, ,and any and all expenses. In~luding bu. not liined 00, reasonable attorneys' fees which may be incurred by BPWCP in collectng ¡¡ii or any of the Obligations and/or enforcing any rights hereunder; it being furter understood and agreed that the liabilty hereunder of the underigned 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) proç:ed against or exaust any security held from Debtor; or (c) pursue any other remey in BPWCP's power whatsoever.
The undersigned waive any defense based on or arising out of any defense of Debtor other the indebtedness, Including wiUUout limftationany defense based on or un

than paymnt In full of

enforceabilty of the indebtedness or any part thereof fro any cause, or UUe cesation from any caUse of the

arising out of the disabilty ofDebior, or the

liabilty of Debtor other than 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 npp every aspect of ariYsuch sale
is commercially rea~nable. 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 UUe
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 other right
or remey of the undersigned against Debtor or any serity. Until all indebtednes of Debt()r to',SP'VVCP shall
have been paid in full, even though such indebtedness'

is in excess of the undetsigned's liabilty-hereUnder, 'the :.. undersigned shall have no right of subrogation and waive any right to enforce any reedy which BPWCP now has' , '

or may hereafter have against Debtor, and waive any benefit of, or any right to partcipate in any secutity'Ow. or'
If this Guaranty is exected by two or more partes, they shall be severlly Ii,able hereunder, and'the Word'
"Undersigned" wherever used herein shall be constred to refer to each of such partes separated: all in the same'
manner and with the same effec as if each

hereafter held by BPWCP, ' .:; .',
or by

Guaranty shall not be revoked or impaired as to any OIeor more of such partes by the death'of any of UUé others,

of them had signed separatins1rments; and in any such case this

Exected at , this -l. - day of ~ ,20~.
\ ,C '. G~~nt~aqUiryn,
Residence of Guarantor (street, city, state, zip code)

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

Witness

~

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

Guarantor - SpOuse

* Subscribed and sworn to before

me this

.2Ó~daYOf ( hA_J*Requlmd In all states

,.200 tt

.:~':f~.. :' ~~tS#~d
/.

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BP West Coast Products LLC ~

buarantee Agreement Individual
Facility: 82461

\

The undersigned leg¡¡lIy bound hereby

Saved Faàuirvan and

and in considertion of BP W~t Coast Products LLC. o(ganized in Delaware (hereinafter

(spouse, If marred), intending to be

called. "BPWCP'~) advancing credit to STTN Enterprises, Inc. (hereinafter called ~Debtor"), and also in
consideration of BPWCP. at itS sole discretion, (a) agreeing to any additional credit at, for petroleum prodacts and other merchandise, or (b) to extend cregit, advance of any money due or to become due Under contret or obligation arisingfronn any lease'or Joan, or credit In any other manner to, or at the request Qr for the acunt of

any time hereafter to Debtor money, or defer time for payment

Debtor, either With or Without security (all such liabIlty and obligation of Debtor to BPWCP now or hereafter existing being hereinafter referred to as

(c) to extend

"Obligations"), do hereby jolnUy and severally guarante and agree to payto BPWCP, upon demand, all of the

Obligations together with interest thereon, and any and all expenses, induding but noi limited to, reasonable
attorneys' fees which may be incurrd by.BPWCP In collecting all or any of the Obligations andlor enforcing any

rights hereunder; it being furter understoo and agred that the liabilty herender 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

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 discbilty payment inor the

unenforceabilty of 'te indebtedness or any part thereof fr any cause, or the liabilty of Debor other than payment In full

security held by BPWCP by one or more judicial or nonjudicial sales whether or not every aspect of any such sale
securi, without affecting or impairing in any way the liabilty of the undersigned except to the extent the

of the indebtedness. BPWCP ma. at its election, foreclose on any

ceaton from any cause of the

is commercally reasonable, or exercise any other right or reme BPWCP may have against Debtor, or any
indebtedness has ben paid. The undersigned waive any defense ansing out of any such electon by BPWCP,
even though such electon operates to impair

or extinguish any ñght of reihlursement or subrogation or other right 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 such indebtednes is in excess of the undersigneds liabilty hereÜnder, the

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

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

in any such case this pares by the de~th of any of the others or release of any liabilties hereunder of anyone or more of such other partes.

Executed at

J1 i . this -2 - day of --4.,JU/

.20 JJ.

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

~~.~. ~
Guarantor - Spouse

Guarantor - Sayed Faquiryn

Witness

Residence of Guarantor (stret, city; state, zip co.)

" Subscribed and SWOrn to before me thIs

¿pM day

'~..'...'~.
Notary, Puttllc

of

,,lunJ

, 20.0&

."Requiied in an Slate

..=~£,

.."~'~.".

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EXHIBIT D TO SECOND AMENDED COMPLAINT

119

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Custom~r A,çct #Q991\(j9(J

bp

Facility #8159'2 Category; Rebr.nd

CONTRACT DEALER GASOLINE AGREEMENT

1~is Contract Deall: G~soline *eemem (ths "~eemcnt") is made and entered into :: of me
Products 1.1.C, a Delaware limited liability company, ("BPWCP"), and

ot () I k " ~C' ,("Effective Datc")by and between BP West Coast
s-rr:' Enterorise.~. Inc. a California CorJ)oration CBuyer").
(st3t" whet"" a sole proprietorship, parmhip; ,:orpofoiion or limited li.bílty company ¡LLCj; ifp.rtnership; ¡he n'mes of .11 pnrtnL'r :ud Shuc of organÎzation; if corpration, the State of :ncorpr:iion; if.n u.. ii,,: Slate of org.niz:iíon)

day

BPWCP maintain a place of busness at 4 Cc:meroointe Drive. in the City of La Palma. in the State of Californa.

Buyets principal place of business is located at 631 San Feline Road in the CitY of Hollster, in the State of CA with the ZrP code ')5035, This Agreement constirutes a "tTncruse" :: defmed in the PeiroleumMarketingPractices Act, 15
U.S.C. §§ 2801-2306 ("PtvCPA").

Recitals
A, BPWCP markers motor fuels comprising g::solines and ga.olinc containing materials bearing ¡he
ARCOQ9 tradem::rk ::nd odieT identifying sJ-mbols (herein collectively, "Gasoline").

B, Buyer O"VII or leases from :: tlurd party real property aod imrovements which Buyer would like to
opcrate as :: retail facility seiling Gasoline to end users, The proper and improvements arc located at 631 S:ir Fe!ipe
Road. in the City or Towll of Hollster

in the Stati: ofCA with the ZIP code 95035 (The "Premises").

NOW, THEREFORE, the partes hereto agree as foHows:

I, Term. This Agreement shall be binding upon the paries and effective on the ciat.: first set fort above,
Subject to earlicr ternation under Paragraph 17.1 below, the "Commcement Date" of this Agreement shall begin at
i 0:00 a.m on the and the term sha1l end at 10:00 ::.rn on the, If no Commem;ernent Date is set fort at the rie this

Agreement is execl!cd, the Commencement D::te sh.111 be established by BPWCP by notice to Buyer as the date the
Premises are ready to receive Gasoline delivery, wruch norice shall also set fort ÙJe expir.tion date which shall be at
IO:OOa.m. on the tirst day after

the (XX) 12iJ or 0 120iJ or (J 240iJ full calendar monm following the Corrncemem

Date. If no tie is checked, the box tor 120m shal be deemed checked. In addition, BPWCP may, at its discretion,
extend the term of this Agreement for a period of up to 180 days by givg ..vrrten notice to Buyer before

the end of the

term
1.2 Construction or Raze and Rebuild. If th Agreement is for PTemises tht require new constcl'on of

an AReO branded gasoline fucilty or ¡he raing and rebuilding of an ARCO braded retail f::cility, Buyer will promptly

undertake such new constrction or rebuilding and complete 5uch constrction or rebuilding and be ready to receive. Gasolie delivery withiii 24 months, in the case of New Constrction. or 12 months, in the case of a Razing and
Rebuilding, of the Effective Date of ÙJis Agreement If this Agreement is tor Premses that require remodeling or retrofit,

Buyer wi1 promptly underte such work and complete such "remodelig or retrotit and be ready to te\eive Gasoline
delivery ,,,itbn nine months of the Effective Dare.

Orders. Buyer wil order and make available for retail sale an grades of Gasoline ';vhich BPWCP offers to Buyer
(hereinafter collectively, "Product"), in amounts sutlkient to satisfy all foreseeable retail cutomer demand for

Product at the Premises aiid will at all times have available tor sale

Page 1 of 18
ARCO 40.WR-1(4/2006) CDGA

BP 03039

120

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only to allocation of PToduct by SPWCP in :: manner determned in BPWCP's sole discretion in Buyets geogr::phic area. BPWCP wii use its best d'fons to till Buyets orders; however. BPWC? may discontinue
sale of any grade of

Product at ilny time upon fifte::n (l5).calendar days' prior written notice to Buyer. At

BPWCP's sole discretion. BPWCP reserves the right to provide AReO branded motOr fuels soleiy through
au automatiC Ga.';oliue ordering and delivery system ::nd ro not accept indivídual orders placed by Buyer.

Buyer agrees to accept and pay for such Product as BPWCP delivers to ile Premses. Bnyer shall provide
accurate and timely inomiation as reasonably requested by BPWCP in coiiiection with the aUtomatic gaso line in'/entory and delivery system.

3, No Wholesaling. Buyer wil sell Product only to end users for their personal use in volumes not exceeding the capaciry of each customer's momr vehicle fuel tank, any auxiliary fuel tan
directly lined to the cU5~omds motor vehicle engine. and :m approved, properly labeled emergency
container capable of holding ten gallons or less. The Premises shall be open for business seven (7) calenùar

days J week t'\Jr a miimum of twelve (12) consecutive hours each day,

4, Deliverv. BPWCP ",-ill deliver Product imo Buyer's storage facilities descrbed below,
Title to and risk of loss of Product will pass to Buyer upou delivery into Buyers srorage facilties. BPWCP
alone will sei.~ct the rm:thod ::nd mode of shipment and delivery, BPWCP expressly reserves the right to

supply Product to ouier ïCtail our.ei. whether owned and operated directly by BPWCP or by independent
oVv--ers ::nd opi:Jmrs, regardless of how near or far such other retail omlets may be located relative to th..

Premises,
5, Prices. For Product del¡','ered herewwckr, Buyer will pay the price specified by BPWCP
trade, Price shaH be subject to
in etTect at the time and place of delivery for purchasers in Buyer's class of

change at any time, at the election of BPWCP, ..ithout notice. Should BPWCP elect to provide notice of
price changes, it may do so by telephone. or at BPWCP's sole elecrion, facsimile or electroitic transmission.

Buyer mwt have the capability to receive notices of price changes and invoices at me Premises by facsirle or electronic tr.msmisioii. At BPWCP's sale discretion,. to enable Buyer to compete more effectively with Buyers competitors, BPWCP may from time to time grant Buyer:: "tempora voluntary allowance"(TVA) applicable to Product to be sold by Buyer under this Agr=ent from metered dispensL"T on the Premies, As on Product which is not sold to motorists at retail If BPWCP deternUDes that Buyer has accepted TV
though the metered dispensers on the Premises, BPVlCP may termnate thi Agreement, and the amOW1r of

any such TV:\ sh::11 be due by Buyer to BPWCP on demand and BPWCP may offset such amount against any sums payable by BPWCP to Buyer. BPWCP may condition the payment of allowaoces on Buyees

observ::nce of maximum retail selling prices determned by BPWC? or maximum gross protit magi
detered by BPWCP or a n:duction in Buyer's retail selling price coiiimnsurate wim the amowwt of the allowance,

6. Payment. Unless BPWCP extends credit to Buyer as provided below, Buyer wil pay for
Product prior to its delivery in U.S. dollars. BPWCP shan ¡;:uire a product advance payment

approximtely equal to the current cost of an average delivery of Product. BPWCP may increase or
decreae ¡he amount of the advance payment at any tie to reflect GUIent prices and Buyer wil pay any

additional J.moW1t necessar if the advance payment is in\."Ieased. Payment will be made by electronic fuds

transfer intiated by BPWCP, wire tra:.nsfer, cashiets check 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 lTansfer initited by BPWCP is made must be a memer of NACl-A. (The National Automated Clearing House Assocition). Payment wm be deemed made when,check, all and ony
when, its receipt has been veriiied by BPWCP, If tJii Agreement requires or permts payment by

ehecks shan be made payable 10 "BPWCP" or "BP West Coast Products LLC," ::nd to no other person, firm or entity, If ¡hi,: Agreement requires ()r permits pa)'flent by wire ttnsfer, ::ll such payments shall be made to" BPWCP, c/o Citibank NA. For Credit (Q BP West Coast Products ;;4051-4874 ABA 021000089. New York. New York i 0043," aiid to no other bank or ;¡ccoun( ~umber unless so advised iii wrting by the Credit Manager, BPWCP, If this Agreement requires or permits payment by automated clearing house ("EFT"),

an such payments shan be made (Q "BPWCP". cio Citibank De1aw::e, For Credit to BP West Coast Products - ACE #3815-2114. New CJ.stle, Delaware 19720," ,and to no other bank or accoum number

ARGO 40-WR1 (4/2006ì

20r 18

BP 03040

GOGA

121

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unlt:ss so advised in writing by Ù1C: Ctedit Manager, BPWCP, rr ths Agreement requires or permits

payment by eleen-onie funds tr..nster ("EFT"), aU such payments shaH be made in strict accord with procedures cstablished ::nd promulgaied by BPWCP, Buyer agrees to indenmifj BPWCP for any loss or
cxpCle caused by Buyer's ¡àilure 10 comply ..ith thi Paragraph. Upon demand, Buyer will reimburse BPWCP the amount of any temporary vOI1Utrary allowance erroneously applied to Product other than Product sold wwder th Agreement from metered di.l'ensers on Ù1e Premises. hi addition 10 any other remedies ;;vailable to it, BPWCP may olIset againsi any futUre lemporat"j voluntary ::l1owance or againt oÙ1er ::mounls owed to Buyer the amount of any reïmburscmeui to which BPWCP is entitlt:d if Buyer fails to make ::ny paymenl or reimburement when due. Buyer acknowledges ::ud agrees that BPWCP's receipt of p::~.-lenl due hereunder after ¡he issuance of a notice of termnarion or norreneivai doe.s not constirute a waiver of BPWCP's temuiiation or 110rrenewai rights.

, , Credit. BPWCP may in its sole discretion from time to tic extend credit to Buyer in
whatever amouuts ::nd on wllate\'er temm BPWCP alonc selects. IfBP\VCP cxrends Buyer credit, BPWCP may withdraw it at any tie \vithout notice and for any re::son. In BPWCP's sole judgment. BPWCP mav

do any or ::ll of the following: (i) reqnire Ù1at Buyer pay for Product by cashier's check. or bank wir~ transfer prior ro delivery, (ii) require tlmt Buyer post an irevocable letter of credit issiied by a bank
satisfactory to BPWCP, (iii) require Buyer present evidence of tinancial solvency, and (iv) declare Buyer in
default of this Agrement if Buyer tàils 10 pay any indebiedni:-ss when dui:, provide

evidence of financial

solvency upon request or comply with ::y other term of this Agreement. Buyer agrees that regardless of whether and tor how tong BPWCP ha ex.tended it credit, BPWCP may cease extending credii at any time and instead require Ù1at payment be made in the manner set forth in iis Paragraph or in Paragraph 6 above.
g, Non-confornúties. Buyer ",in notiy BPWCP in i..ting of the exact natue of :my

nonconformty in ihe type, quantity or price of :ioy Product delivered to Buyer ..vithin thirty (30) calendar which
days after delivcrJ, Buyer hereby waives any claim against BPWCP based on any nonconformty of

Buyer does not so notify BPWCP,

9. Record Keepiiil!. For each delivery of p'roduct, Buyer shall al all ties keep a deCJiled
record of the date and tie of delivery, aDd the grde and amount of Product delivered expressed in term

of galons. To asist BPWCP in determinig the necessity of::y tempomry volunta al10wance descnòed in Paragrph 5 above, Buyer will (i) sell all Product through metered dispeasers whicb shall indicate the grde and amounl of gasoline purchased, (ii) allow BPWCP to inpecr Buyees Product dispensers, recorders and meters, and books and records relating to delivery aDd Product inventory, and (iii) allow
BPWCP 10 ascerrain the volume ofProductin Buyer's storage facilitïes.
10.

EQuiiiment.

10.1 Stora!!e and Dispensers. Buyer \Vir maintain storage tanks or other appropriate facilties on the Premises into which Product can be delivered. Buyer wìl ensure that the storage facilities

are compatible with BPWCP's delivery equipment and Product formultions; that its storage facilties ..il! Premises are
accommodate such. miniúm quannities per single delivery as BPWCP may select; and th:t the

configurd in such a way thai Product can be delívere to the Premises co.nsistent with all applicable tire
laws and regulations and other governental requments. Furer, Buyer win ensure that aU dispensing
de'v;ces and Stomge facilities ar all

iimes be properly perlirted and completely comply with all applicable

govemmenmI requIremènts and any specifications which BPWCP may issue from tÏIe to tÏIe. Buyer

further agrees thai Buyers molor fuel dispening devices shall be equipped al all umes wiih Product fiters with ten (10) miLï:OIl fitering capacity. Wiihoul resncting aDY right or remedy of BPWCP, or imposing any duty or Liability up-on BPWCP, upon BPWCP's request, Buyer will promptly fush BPWCP v..tl

wrtten evidence that Buyers dispen.~iDg devices and storage facilities comply ',1,;lh all govel1ntal
requiremems ::d provide copies of represematives to

underground storage tank pemmits ltnd specifications, and aHow BPWCP

inspect the dispensing devices and storage f¡¡cili lies to confi such compliance. BPWCP

may suspend deliveries in the event ihm Buyer does not proviùe ',mtten evidence that the dispensing devices and srorage tàcilities comply \'ith all governmenial regulations.
BP 0304 I
3 of 18

ARGO 40 WR-1 (4/20()6)
CDGA

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10.2 PIC Equipment. Ulùess rhe Premies are locaredin the: state of Oregon, Buyer is required by BP\VCP 10 purchae or lease ¡!ie PayQuick ¡sland Cashier ("Pic Equipmenl") and insial! it al
the Premises. The PIC Equipment shaH be oftae type, number and configurationspecitìed by BPINCP,

tal Buyer agæes to use the pic EquipDient ouly in coiuie.ction \viui the operation of BPWCP authorized businesses. Buyer agrees !lot to tamper \1irh alter, change. dislodge.
displace, remove: or otherwise intedere with the operatimial integrity of to mainrain PiC Equipment in a clean and

the P¡C Equipment. Buyer agrees

fully operation:l condition at all ries for the convenience of

Buyer's customers.

(b) Buyer will be responsible for all maintenance and repir of the PIC
Equipment. Buyer wil conrract tor mainten:nce services rbrough SPWCP approved service providers and understands that BPWCP wil not provide any inÏÏirenance and repair services,
(c) BPWCP wil provide iraiiúng to Buyer and up La 5 employees designated by
Buyer to attend training. Tr::ing is mandarory for Buyer or Buyer's designated manager. There is no
tuition for such training, but aU expenses in connecrion '.vvrll such training must be borne by Buyer. If

Buyer

fails ro attend training when originally scheduled, there may be a fee of S 1000 to attend training,

(d) Buyer's PIC Equipment win have one or more c::sh acceptors, except if, in the sole opinion of BPWCP, .Buyers Premises an: appropriate exclusively fot debit only pic Equipment. Unless the Premises have no cash acceptors, Buyer agrees to comr.ict with an BPWCP approved liceI1ed
and bonded armored security servce to do the following: mae Gash pick ups

011 a regular basis, bUt not less

frequently than once per week, mainuin possession of all keys to tbe oiiter door and the vaiiit of the pic
Equipment, handle all removal of cash cassettes from the PIC Equipmem and reins intO the pic Equipment Receipt paper wil be changed only by armored security personnel

tal! al! empty cassettes
or in their

presence,

(e) Buyer is required to install and operte the BPWCP approved Video Surveilance Equipment. the details of which will be provided to Buyer and which may be changed from time to time by BPWCP, In addition, Buyer must install, keep operational and use one or more video
surveirance cameras dedicated to recording the customer acÜviry at each PiC,
(f) Buyer is tesponsible iòr mainming a supply of receipt paper at the premises

to be used in the PiC Equipment,

(g) BPWCP grants to Buyer a non exclusive right and license 10 use the
PayQuick Island Cashier service marks, trademarks and trde dress in conjunction with

the operation of PiC

Equipment at the Premises in a form prescribed by BPWCP,
(h) AI! informtion regarding the pic Equipment,

including written manuals,

specifcations, data and instrctions provided to Buyer are confidential and proprietary infommationof

BPWCP and shall rema the exclusive property ofBPWCP and shall not be duplicated, in whole or ii part by Buyer and shall not be used other ihal1 as set fort herein and shal! be maintained in contidence and .not disclosed EO anyol1e without the prior wrinen consent ofBPWCP.

(i) Upon 180 days prior written notice, Buyer may be required to upgrde the
PiC Equipment or purchase and instal! more technologica!1y advanced cash. debit or other paymeiú
equipment in accordance with BPWCP's sytem ':vide equipment requirements at that time.

(j) Buyer will instal! BPWCP approved Point of Sale equipment which is
necessary to operate the PIC or other required pa~menn equipment. Buyer wi!! ensure that its Point of Sale equipment and motor ii.el dispensers are compatible with the PIC Equipment. In addition, VSA T sateHite
equipment is required for tclecommunicarions purposes tòr, which there is a fee for connection,
repositioning and mainienanc~,

4 or 18
ARC

BP 03042

a 40 WR-1 (4/2006)

CDGA

123

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11, Leak Prevention and Detection. Biiyer acknowledges and agri'::s tht with respect to
:iiy Product storage facilities located on the Premies, inducting ividdout Iimit:Hion underground stOrag~

iank ::nd related equipment, Buyer is solely res.onsibk for taking, and wil take the iollowing leak and

w::ter contamiiion prevention :md detection measures:

i i.l Stick Readin2's. Using a properly ca),ibrated wooden tank measuring device

and waier finding paste. Buyer will gauge Product storage tank for inventory 10:5s or water gain on a daily
basis,
i 1.2 Reconcilations. Utilízing daily stick readings to the nearest one eighth (1/8)

inch and dispenser'meter readings, Buyer wil tae and reconcile opeg and dosing inventory levels by

grade, induding deliveries. '

11. Record Retentioil. Buyer will keep daily reconciliation records available on the Premises for at least five (5) years.

II A Monitonn!!. Buyer ",iii ascertin and perform any and all other monitoring
proccdures required by applicable laws, regulaiions or govermental authorities.

1 1.5 SecondarY Containment. Buyer wil ascertin and perform any and all
construction or n:trofitting necessary to satisl:' or comply with the seconda containent srandards for
underground storage tanks requin:d by applicable laws, regulations or governental authorities, Buyer ,..m

ensu.re that all delivencs of ARCa Product arc made into double walled tanks.
I L6 Notific:1tion. Buyer will immediately investigate and report to BPWCP and all
appropriate govenuental authorities (i) any detectable loss or suspected loss tht exceeds Regulatory

variatiol1 limits of any Product, (ii) the activation or alarm of any leak detectOr or orher continuous monitoring sysrcm, (iii) the discovery of any broken weights and measures seals or other seals in any
Product dispenser. (iv) the discovery of any visible leak in any PToduct dispenser, Product piping or

submerged pums, (v) any change in the condition of the land or surface adjacent to till boxes or
disensers, (vi) water in excess of one inch (I") in any storage cQntainer, or (vii) any spills or overffls that
are not imediately and properly contained and cleaned up. In the event of the OCCUITcnce of any of (i)

through (vii) above, Buyer shall iiediatcly investigate in accordance wirh regulatory leak detecuon

requirments. If a leak is cOn1ffed an Product mut be removed trom the storage ta immediately and
the ta secured. In addition, Buyer will keel' fil caps tight. ke:: fin

boxes free of di, ice and snow, and

imediately remove :Lny water in excess of one iuch(l ") in any Product storage tank Buyer will not pemiit
any

Product to enter any public or private water system, stomm drain or sewage disosal system.
11,7 Trainin1!. SP may offer trinig on environmental compliance. Such training

wiU not exceed four (4) hours and will be offered on an annual basis or a lesser .1ìequency if specüied by
BP. The trining will be tuition ¡ree, but aiiy expenses in connection with such traing shall be borne

by the

Franchisee,
12,
Gasoline Regulations.

l2.1 CampHanee. BPWCP will ensue that upon delivery to Buyer by BPWCP. all
gasoline, wil meet the specificarions for lead and phosphorus set forth in the regulations promugated by the United States Envionmental Protection Agency ("EP A"), Buyer will ensure that no gasoline purchaed

from BPWCP i. tampered with or contaated in :: way that could cause the gasoline not to meet the
EP;\s speciff,c~tìons or any other specIttcations required by law, Buyer wil immediately ceae dispensing any gasoline that is determned aot to meet such specifications

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12.2 Disclosures and Waming~. Buycracknowledges that it has been fully
iiúormed of and is ::ware of the natue and exitence of risks posed by transportng, storing, using, handling

and being e:-posed to Product. Buyer will inform ilS employees, agenlS, contrctors ::nd customers of stich
risks. Buyer wil display, publish and disirbute any saiety \vaîngs or disclosures as may be requested or

required by BPWCP or any gove.rnent\ authority ITom time to rime,
13.

Ta1es.
13.1 Pavment In' Buver. Buyer wíl pay promptly when due and hold BPWep

haress from all t:es. excise fees and other similar charges (including interest, penalties and additions to

tax) whidi BPWCE ìs noW or in the futUre required to payor collect under any federa~ state or local
governiemal requiement based on the manufactue, production, sale, trfer, trnsportation, deliver,

storage, handling, consmption or use of Product ttder tbis Agreement. or on any paymnts made under ths Agreement (exceptig any income tax imposed on BPWCP based on im;ome received from Buyer and any interest or penalties thereon). BPWep may, at its sale option, add any such tax. excise fee or simlar charge to the amoint to be charged for Product. Buyer wi1 also pay promptly when due and hold BPWCP harm.\ssfrom all fees and sales, use. rental. gross receipts, in~'entory, excise. incoii and other t:xes (including interest penalties and J.ditions to taX but r\ot including any income tax imposed on BPWCP
based on income .received ITom Buyer and any interest or penalties thereon) imposed by any federal. state or
Joca.! governental authority upon Buyer or BPWCP in connection with the operation of

Buyer's business.

13.2 Inappli1::bilitv or ReseHer Exemption. With respect to Product purchased

hereunder, Buyer hereby waives any exempnon Jnd agrees not to assert any right of exemption from BPWCP upon delivery of Product to purchaers within payment to BPWCP of t:xes regularly collected by
Buyer's clas of trde by virte of aiiy resdler or wholesale.distnòutor exemption to which Buyer may
piesently or hereafter be entitled under any provision ofeederal, state or local

law reguiatior\ or order.

13.3 Tax Information. Buyer will provide BPWCP with Buyds motor fuel seUer

r\umber and use tax regisirion number. Furher, Buyer' wiU ,provide BPWCP with any infommnon requested by BPWCP relatig to tax credits claimed by Buyer for motor fueL, sales, use and other t:xes paid
by Buyer in coanection with the Product for the purpose ofreso¡"'ing any theatened or pending tax dispute
with any governent::! ::utbonty or for the purpose of cOnIiiing Buyer's compliance with

the rerm of this

Agreement.
14.

Tr::dem::rks and Trade Dress.

14.1 Compliance. Within one hundred fifty (150) calendar days after the
Comim:ncennent Date if this is the first agreemenI between Buyer and BPWCP for the supply of Product at

the Premises and upon the Conunencemenr Date if this is not the first agreement between Buyer and
BPWep for the supply of

Product at the Premises, uness BPWCP' consents other."ise in wrting, Buyer Vvill

have fully complied with aU trademarks and trade dress requirements set fort in Exxbit A. Tllereafter,

thoughout the term of ths Agreement. Buyer shall fully comply 'NÌtll all trademarks and trde dress
requirements as they may be changed from tIre to time. Notwithstanding the foregoing, .Buyer must have

the ARCa tD, sign 1.0. pole, price pods, and dec;;l specifications for pumps and disptmsers as described
in Exhibit A (as it may be changed from t: to time) in phice as soOn as Buyer is sellng ARea branded

Product but ::ot later than the iift delivery of Product hcrew:der and not before Buyer is sellng ARCO
braded Product uner the AReO trdemarks described below. Buyer hereby

agrees tht BPWCP may Jnd

acknowledges tht in all likelihood BPWCP win change such requiremenlS from tie to tie. Buyer wil

cOnnorm.itS tradennaiks and trade dress to all such changed requiremenlS within llinCty (90) calendar tlys after receiving written notice ITom BPWCP of any change. In its sole discreiion. BPWCP may loan to
Buyer vaiious items of trde dress such as sign, illuminated sign poles, sign faces with a numerals let and

pum identiiication signs. Buyer hereby agrees that any trde dress which BPWCP provides to Buyer
hereunder shall remaII ¡he property of BPWCP regardless of whether it .is atTxed to the Premises. Buyer shall ensure that iio such loaned trade diess is removed from the Premises by persons other Uian BPWCP or

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its represennatives ~irller during or after the ierm of this Agreement without BPWCP's prior \lntten consent.

Buyer shall be::r the cost of mainraing, repair and replacing such loaned tmde dress.
14.2 Licenses. During the term of this Agreement, in coiiection with the resale of Product. Buyer may display the trademarks, trade names, advertising, signs, devices, syrbois. slogans, designs and other trade indicia adopted, used or autho,rized for use by BPWCP in coiinection with Product (colltcrively, "Marks"), provided that (i) Buyer operates the Premises .even (7) calendar days a week for a
mÙúmW11 of twelve (12) cOl1secuiÍvc hour each day, (ii) the ïvlarks are only displayed or used ¡iithe

manner specitied by BPWCP. and (iii) all trdemak rights resultig from such display or usge shall inure
to BPWCP's benetit BPINep reserves the right to substitute another trdernk for .-\CO or withdrw or

modify any of the Marks or their manner of display without prior notice to Buyer. Upon recerving notice of
any withdr.waJ or modification of the Marks or substitution of another tremark, Buyer will fuly

implement any moditii;atioii Qr termnation or substitution within the time specified in the notice and such other tcademark shaU be deemed substitUted for the "AReO" trademark in aU references to Gasoline and
Product in this Agrement. If Buyer fails to compiy fully with any notice. 0 f withdrawal or moditication. in

addition to any other remedies av:ilable to BPWep for breach or this Agreement, SPWe? may demand
Buyer fails to do that Buyer immediately remove all Marks from rhe Premises at Buyer's sole expense, If 50. BPWep or spwep's contrctor may enter the Preuúses and remove all Marks, and Buyer \Ùtl
reimburse BPINep for such removaL.

I.U Shared JI~xpenses. BPWep will reimburse Buyer a pOr1ion of the cost of
¡¡cquiring, transporting :md instalJiig certin signs and other irde dress required hereunder and set fO!1h in

Exhibit. B, as speciIicd below. The amount of such reimbi¡rsement shall be the lesser of (i) one half of

Buyer's acrnal verÌÌiable cost, r¡r (ii) the maximum amount indicated on Exhbit B. The reimbuTsernentshatl apply on a one-lime oniy basis to the: Premies during its entire frchise relationship with BPWCP regardless of whether this is the tirst or a .ubsequent agreement ber.veen Buyer and BPwep for (he 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 shall be !n wrtig and accompanied by all original invoices (of which Buyer shall keep copies), Upon receiving such a request, BPWep shall inspect Buyets t~cility (0 conf that therr::de dress is of the proper tye and property installed and verify
Buyer's acrual cost, If BPWCP confi tht the trade dress meets BPWCP's requirements and verifies

Buyer's subuútted cost as accurate, then BPWep shal eidier reimbure Buyer the amount described above

or pay the entire cost of such trade dress directly to the tlrd part vendor. whichever BPWCP alone
chooses. If BPWCP elects to pay the third part vendor directly, then receiving notice from BPWCP that such payment will be or has been

with five (5) calendar days after

made, Buyer wil remit to BPWCP the difference between the amount of the invoice and die amount of BPWCP's reimbursement as calculated

above. Furher, BPWCP may arrnge diectly with a third part vendor to satisfy the requirements of this
Par.grph 14.3 and collect from Buyer in advace upon five days' notice, an amount equal to the tota maximum reimbursemt:ts to which Buyer is entitled under tls Paragrph and Exhibit B, to cover Buyer's
share of the cost of

trade dress expenses. Should the amunt of fus advance payment exceed one half of the actual cost of satisfying tho: inde dress requirements herein, BPWep wil refund the excess amount to the actUal cost of satisfying the trde dress Buyer. If the amount of the advance payment is less than
requiremenis herein then Buyer shall pay BPWCP the amount of the deficiency upon demand. In addition

to all other remedies available to it, BPWCP may offset against any amounts owed to Buyer, the amimt of Buyer may be obliged to any remitlance owing to BPWCP hereunder, "rotwithrading this P::agrph 14.3. pay BPWCP for any reimburements received and direct vendor paymeiits made by BPWCP hereunder
upon the tennination or nomen!;va! of this Agreement as specifed in Paragraph 17.3.
i 4.4 Restrictions. Buyer wil not aduHer.te, uúslabel, mibrand or contalfate

?roåuct; add ao.y ingredients to, Product \Ùthout BPWCP's prior tontten consent; use any Mark eX,cept in connection with genuine ARCO Product; claim any right, title Ór interest in or to the "vtarks; directly or

indirectly deny or assail or assist others in denying or assailing Ùle 30le and exclUS.ive ownershi ofBPWCP
in and to the Marks; register, adopt as its own property, or use or asist others in registering, adoptig, or

using any trdemarks, trade names. advertsing, signs, devices, symbols, slog¡¡rr, designs or OÙler lrade
indicia cooi.ingly similar to uie Marks; or commit other trademark violations or acts (hat could disparage

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the

.ÀJY righi~ to any

Marks or adversely aff~ct the value of the maks or BPWCP's goodwil and QWl1erslliD ri!!his bereto. Marks obtained by Buyer conmmry to the foregoing shall beheld in trt t-¿r BPWCP and, upon n:quest. Buyer wiil assign such rights freo: of cbarge to BPWCP.

14,5 Standards. The Premise,'; must be dean, well maIntained, and graffti free, wiú1

smictures, driveways and pavement in good repair. BPWCP will perform periodic inspecrions for which rcpe:ued failure (yr poor performnce is grounds for temrtion or nonrenewal of th Agreement.

is.

Compliance and Indemnifcation.

15.1 .Compli::nce With Laws and Re!!iil::tioos. Buyer shall comply with any and all applicable lederal, state and local laws and reguations, includin those pertaining to human health, safety or the environment. and sMIl further comply with any and all pen-nits or license pemining to the Premises.
Any references in ths P::ragraph 15. i to laws or regulations shall include all such laws arid regulations
pertaining to Product. or the air, or suríåce or subsurace water, surface or subsurface soiL

and the handling,

storage and disposal of haz:rdous substances, marerials or wasres, or solid wastes (whether or not detlm:d

as hazardous by such laws or regulations)" and vapor recovery and ''apor recovery equipment Buyer shall

comply with any and all openitiig, reportng and record keeping laws and regulatioos, as well as all
operating, reportng and record keeping procedures designed to ensure that no unauthorized release of any Product occurs. and that in the event any Product is released, all applicable reportng, record keeping and
cleamip requiremerrts are fully complied with.
15,2 Indemnification. Buyer will indemnify and hold harmless BPWCP. its

affljates, subsidiaries, shareholders. directors, offcers, employees and other representatives (and
shareholders, diectors, offcers, employees and other represent:tives of such affliates and subsidiaries)
(collectively, "Inemnified-Parties") from and ag::inst all dairris, causes of

action, liabilities, suirs. demands,

legal proceedings. governmental actions, losses and expenses, including without liroitariorr reasonable

expert and attorneys fees and costs (collectively, "Indeimfied Expenses"). arising our of (i) any bre:ch by Buyer (or :iny of its offcers, employees or representatives) of any provision of this Agreement, (ii) fue
storage, leakage or ofuer release of Product on, or from the Premies, (iií) any cleanup, remediation or response activity conducted or ordered wider applicable law, (iv) Buyees use or occupiincy 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. exceptig any loss or damage arising solely from BPWCP's negligence or
failur to perform its obligations hereunder, or (vi) any intentional or uníntentíonaJ violation by Buyer of Product, or fue any governnt requirement applicable to the Premises or Buyers storage or sale of

disclosure or waring of risks associated with Product at the Premises, This indemniffcariorr obligation shan survive the temmnarion or nomenewal of this Agreement
15,3 Liabiltv for Char!!es or Fince~. In the event t!t BPWCP becomes liable for

payment of any charges or fines arsing out of Buyer's noncompliance with any governmental laws or
reguations or Buyers failur to secure any nece:sa \'censes or pemmts or renewwls thereof. nOW or

hereafter necessary, in connection wifu 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. ùnposts or charges imposeday any

governtal authority, BPWCP shall have the right to charge Buyt:r the amount of any such charge or fine
paid by BPWCP.

15.4 ReDortio1!. Buyer shall report to BPWCP ,vithin 24 hours each incidence of major
personal injury or criminal actvity, All other incidences of personal

injur or criminal acriviryshall be

reported as soon as pracncable, but in no event later than 72 hours. Buyer wil display display siggiage

reg3fding BPWCP's crime deterence and reward otTer in the manner specified by BPCWP. BPWCP

reserves the right to chaige Qr withdmw any reward otferin its sole discretion in which case, Buyer will
remove or replace the signage immediately upon noúce,
16, Insurance. Buyer shall obtain and mail1tJ.lll throughom the term of this Agreemem each
or the following fornis of insurance from a tinancially SOlUld and reputable insuraiice carrier: (i) wo.kers'

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compensation insurance including occupational diseai; í~iice in ac;:ordance with ¡lie laws of

¡he State in

'."hich the Premises are located, and employers' liability insur:ce in an amount of at least $100.000 disease

each employee and $100J100 each accident; aL1å ( ii ) gar:ge liability insuran~e or general liability insurance, including contracmal liability, insuring Buyers indemnity obligation set forth above, and
products-completed operations coverage, in amountS of at least' $1,000,000 combined ~ingli limit .:ach
occuaeuce applicable to personal injury, including bodily injury, sickness, disease or death

and loss .of or

damage to propert (with liquor law liability coverage if Buyer \ViI sell or dispense alcoholic beverages), on wlúch BPWCP is Ilamed as an addicìonal insured. Buyer. wil fuish BPWCP v..th cenificates of
insurance evidencing the foregoing coverage and providig ilat no policy of marerially modi tied withoUt at least th (30)'

insurace may be cam;elled or

calendar days' prior written llotÎCe to BPWCP. Buyerhercby

understands and agrees tht coverage provided BPWCP by Buyer's inurance under thi Agrei:mem is primary inurance' and shall not be considered contrbutory inurance with any inurdnce policies of
BPWCP.
17,
Termhi:1tion ami N,¡nrenewal.
17, i Tri!!!!erin!! Events for Termination or Nonrenew::l. In addition to any other

ground BPWCP may have under the PMP.', and subject only to any necessary restrctions under applicable

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

this Agreement following written o.otici: to Buyer ITom BPWCP of such failure and tiîteen cali:ndar days to cure such failure.
(b) Uninwful. tÌauòuleiit or deceptive acts or practices or criinal
misconduct by Buyer rdevant to the operation of

the Premises.

(c)
insolvency of

Declaration of banktcy by Buyer or judicial dctemmation of

Buyer,
(d) Subject to Paragraph 13.3 hereof. the death or the prolonged severe

physical or mental disability or disableme:nt of Buye:r (if Buyer is an individu;l), Buyets majoriry shareholder (if Buyer is a corporJ.tion) or any of Buyets general parters (ifBuy~r is a partership) for at
least thee (3) month which renders Buyer unable to provide: for the continued proper operation of the Premises,
(0:)
The loss of

Buyer's nght to possess the Premise;.

(t) The condeauation or other takig, in whole or in par of the Premises

pursuant to the power of emient domain.
(g)

The desmtction of all or a substanti par of the PreIDes.

(h)

Buyets failure to timely pay BPWCP all sums to which BPWCP is

legally entitled.
(i) Buyer's ¡(¡ilure to operate tbe Premises tòr seven (i) consecutive

calendar days, or any lesser period which constitutes an umeasonable period of time,
(j) The willful adulteration, commgling, mislabeling or misbranding of
Product or other violarions by Buyer of the

Marks.

(k) Buyets knowing failure to compiy with federal, state or local laws or
regulations relevant to the use or opermion of the Premises,

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(1) The couviction of any tt:lony involving mor:l turpitude or indicunent
(if Buyer is an individual), Buyer's majority shareholder (if Buyer is a corpor:tíon), Biiyi:r's majority owning memer (if Buver is an for any ëriuúnal núsconduct relevant to the operarion of thi: Premises oÎ Buyer LLC) or any

of Buyets gent:ral parters (ifBtiyer is a parership). . .
(m) The detcmiinatÍon by BPWCP, made in good faith and in me norml

course of business; to withd.w from the marketing of moior fuel though retail outlets iii the relevant
geographic market area in which the Premises are located,

the panies which makes temùmition or nonrenew:!! reasonable, including '""ithout limtation those set forth
in

Paragraph lï,2 bdow. -

(n) Tne ocC'..ence of any other event relevant to the relationship between

(0) The breach by Buyer of any material provision of this Agrr:emenr,
which Buyer hereby agrees includes (wi.mout lirmtation) ( i ) Buyèès failure' toordi:r and make available for

sale quantities of '::Jcn grade: of Product which are suffcient to satisfy foreseeable customer demand, (ii)
Buyccs tàilure to keep a detailed record of i:ch delivery of Product to Buyer or make those records

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

detectton measures outlined in Paragrph 1 i. (iv) any attempt by Buyer to asign any Íliti:rest in this
Agreement without BPWCP's prior wrtten consenn, and (v) failure to compleie constrction or rebuilding witJùii the Üir as set fort in Paragrph 1..
(p) If Buyer is a parr with BPWCP to a Loan Agreemi:m or a Loan

Agreement and Securty Agreeimmt and Related PWinSSOI'' Note, and Buyer fails to cure my default under

the foregoing Loan .-\greement, Loan Agn:emerrt and Securiry Agr.:emenn and Promissory Note as requested, BPWCP may temmte th Agreerneat.
17.2 Trigiierinii Events for NonrenewaL (n addition to any other ground BPWCP

may have under the PMPA, and subject only to any necessary resrrcriOtlS under applicable law, BPWCP
may Donrenew this Agrei:enl upon any of the foUo..'Ìng trggerg eveni.:

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

relationship with BPWCP, which BPWCP requests based on BPWCP's deternations made in good faith and the normal course of business and without the purpose of preventing U1e reni:wal of the franchise relationship.

(b) BPWCP's receipt of numerOlL~ bona fide cutomer complaints
concernIng Buyets operation of the .Premies, of which Buyer was apprised and. to the extent they

related

to the condition of the P'emises or conduct of Buyer or Buyer's employees, wJùch Buyer iàiled to cure promptly,
(c) Failure of Buyer to operate the Premises in a clean safe and healthi

maimi:r on at least two previous occasions.
(d) A good faith dererminaåon by BPWCP made in itS nonnl course of

business that renewal of the franchie relauonship is likely 10 be uneconomical to BPWCP despite any
reasonable chages or additions to the agreements betweeii the pares, which may be acceptable to Buyer.
17,3 Effeet of Termination or NonrenewaL After re\eiving no

rice of tem1nation or

nonrenewal and unril the effective date of the tem1nation or nonrenewal, Buyer will continue to operate the
Premises in accordance with this Agrei:menl.

(a) From and after the effecrive date of reimination or l1onrenewal, Buyer win iriunediately discominUl: all tlC of trde dress and Marks associated with ßPWCP. includjng without
limitation :Jse of such trade dress and Marks on dispensers, pumps, containers, storage equipment,

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buildings, canopies, pump islands, pole sigæ, advertising, stationer; and IIvoices. From and after the

etTective o::ie of termination or rronrencwal, Buyer witJ not adopt or use any trademaks trade dress or symbols in the oper:rion of ¡he Premises mat .are confuingly simlar to BPWCP's, including without limitation, any tòur lerter name or mark stang with ( í ) the letter "A" or ( ii) any vowel and having Uie
design that is red or any colored horizont::l striping tht is predomimitely red

lettr "R" as a second letter, Jld Buyer will not use or employ:: a symbol, mark or design any geometric and blue. Further, Buyer wil
remove from all tt::dc dirccrories and telephone book ¡¡stings all reIerence to the Mar.k.. Upon the effective

date of the termnation or nonrencwaL Buyer wil prompdy rerurn to BPWCP or destroy, whichever BPWCP direcrs, all signs. advertising, grphics and other materials in Buyer's possession bearng any Marks or used in any traòe dress, In addition, Buyer hereby agrees that BlWCP may enter the Preirses to remove or cover up any trade dress or advertisements be:ung: any Marks. If Buyer termtes or does not
renew uiis Agreemenr or if BPWCP tenna1es or does not renew ths Agreement for a reason set fort. in

Paragraph i 7.1 or 1 j,2 above. rhen Buyer shall pay for the rt:moval or covering up of all trdt: dress and
trademark. as required tiereunder. For a reasoruble period follov,ing th effecTIve date of Buyets

temminarÎon or nonænewal and at no charge, BPWCP may keep any BPWCP property stîliocated on the

Premises in place whik negotiating for its sale or removal.
(b) If this is the tirs agreement between Buyer and BPWCP for me supply

of Product at ihe Premist:s, Buyer wil repay BP\VCP aU reimbursements and directpaymeiits made by BP'iVCP under Paragraph 14,3 upon (i) the mumal termnarion of thi Agreement prior to or at the end of
the lirst r.velv,: months. (ii) the temmnation of this Agreement by BPWCP or Buyer during tht: first twelve
Of this is a trial franchise as detined under Section 2803 of

months or (iii) the nonrenewal (;f this Agreem::t by BPWCP or Buyer at the end of the first twelve months the PMPA).
(c) If tlis ~s tl¡e first agn:cmcnt betweeii Buyer and BPWCP for the supply of Product at the Premises with a remm of more than aile year and Buyer has been :: part to an agrement '
regarding the Prerrses \'oith BPWCP for the suply of

Product for less than tliirt-six month, then after the

first twelve month Buyer vviU pay BPWCP. on a il rata basis as descnoed below, the amount of all reimbursemeiits and direct paymnts made by BPWCP under Paragraph 14,3 upon the mutu--l tennation
of this Agreement or temmnation or nonrenewaI by Buyer or by BPWCP for a reason set fort in Paragrph

17.1 or 17.2 above. The oro rata amount which Buyer is obligated to pay shall be calculated by multilyig the total of the reimbursemtmtS and direct paymems made by BPWCP under Paragraph 14.3 ties (a) rwo-

ihirds durig the thteemh through twenty-four month of this Agrement or (b) one-thd durng the
iwenty-titth through thi-sixth month of th Agreement
18,
Assi~nmeiit. Rìe:ht of

First Refusal and Successors In Interest.

18,1 AssIe:nment. BUyet wil not sell, (or alow Buyer's foreclosing lender to
complete a sale). assign give or otherwise transfer, any interest .in th Agreement. its franchie relationship
v,áth BPWCP, or its ownership, leasehold crsule:ehold interet in the rea propert or imrovements on

that constitue the Premises, to any invidual or entity other thán BPWCP, without first complying\vitl
Paragraph 18,2 below and obtag BPWCP's prior wrtten consenr to such transfer, which consent shall
Ilot be unreasonably delayed or widùùeld. Furtller, if Buyer is a corporation or partership or LLC, neidier

Buyer nor any shareholder. member or parter of Buyer will selL, ::sign give or otherwise trnsfer, or mortgage, pledge as security or otherwie encumber any shares of stock, p=ership interest or other
ownership interest in Buyer to any individual or entity widdout BP\yCP's prior written consent. To ense that BPWCP ha adequate tie to evaluate any assig!mem or trnsfer request. Buyer will allow BPWCP at

le:st sixty (60) calendar days to evaluate any assignment or transfer request. A request for consent irde
less than 45 days before the expir:rîon date of thi Agreement will be consiòered a request for consent to

the renewal agreement, provided that one has been offered to Buyer. Buyer ac1oowlcdges and àgrees that
any transfer, encumbrancé. anempted trnsfer or attempted encumbrace which does not satify these

prerequisites shaJi be void and without etTec¡, Buyer further ac1oowledges and agrees that BPWCP may

impose a ¡ran.~fer fee upon any transfer or encumbrance of Buyets imerest in its fr..nchise relationship with BPWCP, The fee is currently 51,nOO, bUt BPWCP reserves the right to raise the fec to a maximum of
S..,OOO.

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18.2 Right of First RefusaL. In retum for valuable consider:tion, Buyer's receipt of which is hereby acknowledged, (i) upon receiving or extending any tinal offer to acquire any or all ~f
Buyets interest in this Agrement. its franchise relationship with BPWCP, or il~ ownership, leasehold or subleasehold imerest in the real property or improvements that constitute the Premses, whether conveyed
though 3. business broker or directly, to any eiitity or person other than Buyer's current spouse or adult child
(natural or adopted)or (Ü) upon the recordation of a Notice of Default that commences Buyer's leuder's

foreclosure of a mortgage or deed of trt encumberig the PreITses. Buyer shall offer ~uch interest to

BPWep, in writig, at the same price and on the same other teml as those contained in the tinal offer or Norice of Default. Buyer shail give BPWCP a complete, legible copy of the fina! offer including a
breakdown of the ¡¡mount for real propert, equipment and good"(U, all agreements in coiinection with the

proposed ,)ale and the nae and address of the proposed buyeritrsferee.. In the c:se of foreclosure, the
price will equal tbe amount requied to pay the foreclosing lender to termnate the foreclosure proceeding.

Buyer $hall give BPWCP a complete, legible copy of the recorded Notice of Default and any later recorded
'Notice of Sale, BPWCP shallllave thy (30) calendar days after its receipt of all data and (locumentatíon
required by it to evaiuate the offer and exercise itS right of fit refual by notifying Buyer in writing thàt it

intends to exercise its right of ffrst refual ::d agreeing to pay Buyer the purcha5eprice, less the amount of
any applicable transfer fee, on the te:m stated in the tinal otTer. or the amount required to pay the

foreclosing lender to terinte the foreclosure proceeding, as applicable. Durg the 30 day period,
BPWCP shall have the right of entr upon the prenuses to conduct reasonable environmental testing, If
BPWep ex.ercises its right of fist refusa~ each time period in the final otTet will be automatically extended
so tharit 5tart~ on the date that BPWCP exercised its right of first refusaL. BPWep may assig.n its right of may consummate first refusal to any tbird part. IfBPWep does not exen:ise its right of first refual, Buyer

the proposed transfer. bur not at loiver price or on more favorable term than those offered to BPWCP, If Buyer does not do so withi one hundred eighty (iSO) calendar days after the date BPWCP received
Buyds written offer, then Buyer mUS recommeuce the foregoing right of firs

i rerùal procedure and satisf/

the requirement~ of UUs Paragraph 18.2. BPWCP's exercise of its right of tirsr refual shall not be depndent on its prior re1Ï1S1 to approve the proposed trnsferee. Buyer agrees to execute a meror:ndum
of this Agreement ro be recorded in the Offcial Records of the county where the Premises ile located and
take all other action necessary to give effect to ths right of fit refuaL.

upon the 18.3 Successors In Interest. Notwíti.'1nding Paragraphs 18. I and £S,2, if death or incapacitatiorr for more than ¡ul1ety (90) consecutive calerrdar days of Buyer (if Buyer is a natual Buyer person), a general parmer of Buyer (if Buyer is a partership) or a majority shareholder of Buyer (if
is a co.rporalÌon). or majority-owning member of an LLe (if Buyer is an LLC), ùie interest in this

Agreement of such deceased or incapacit:ted person passes directly to an eligibll: person or persons whom successor in interest in \li(rilig in a fumi prescribed by the deceased or incapaciiated has designated as his and fied with B:rWCp, and who noties BPWCP within twenty-one (21) calenda days afer the death or inc:pacitarion of his intention to succeed to such interest then this Agreement shall continue for the

remg term hereof, provided tht such successor in interest agrees in wriing to assume aU of the
obligations under this Agreement of the deceased or incapacitated and satisIies BPWCP's then current crieria for simar fhnchisees. A person who is eligible to be designted a successor in interest is onc who is (i) the adult spouse or adult child (naiul or adopted) or parent of the deceased or incapacitated; (ii) a general parter of the deceased or incapacitated (iii), a fellow shareholder of the deceaed or incapacitated,
(iv) a fellow member of the deceased or incapacitated or, (v) if heir. Only the most rec;:ndy properly designated successor in

Buyer is a sole proprietor, 11 designared legal

interest wil be recognized as such: If Buyer

ha a, spouse and designates someone other than Buyers spouse, Buyers spouse must agree to the

d~;gnation.
ISA BPWCP's Riiiht to Assi!!n. B.PWep shaU have úie unrestricted right to transfer
or assign all or any part~ of il~ righrs or obligations under this Agn.."Cmenl, including ¡IS right of first refusal described in Paragraph 18,2, to any person or legal entity,

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19,

Miscellaneous

19.1 Right of Entrv. Buyer hereby gives BPWCP che right Co enter ¡he Premises at
all reasonable times ::ed withoUt prior DOUce, to detemiine Biiyets compliance with the provisions of thi

,'\greemenr. BPWCP may determe Buyees compliance by any means BPWCP seiects. induding wiÚJoUt limtation. the sampling and laboratory testtng of Product'
19.2 Successors and Assigns. Ths Agreemenr shan be binding ItpOn and inure to the

the partes hereto and their respective successors and assigns: provided, however, that Buyer shall ha'ie £10 right to assign this Agreement, either voluntarily or by oper:tion of law, except as provided in
benetit of

Paragraph IS above,

19,3 Force Maieure. il the event that either par hereto shall be delayed orunablc
to perfom1 a£1Y ::ct required hereunderby reason of Act of

Nature, strkes, lockouts, riots, insurrection. wat,

governental act or order. or other reason of a like nature not the fault of or in the control of ¡he partj
delayed in perfom1ing work or doing acts required under ¡he terms of this Agreement. then perfommnce of

such act shall be excused tor the period of the delay. The provisions of thi Section shall not operate to excuse Opemtor from prompt payment of all fees or aiiy other payments required by the term of this
Agreement.

19.4 Notices. Except:ls limi1ed by applicable law or as otherwise stan:d in this
Agreement, any and alI nonces and other communications hereunder shall be deemed to have been duly given when delivered personaly or forty-eiggit (48) hours after being mailed. certified or registered mail or

overnight mail, return receipt requested, postage prepaid, in the English language, to the Premises if to Buyer and to the address set forth on the ffrst page of this Agreement if to BPWCP, lIless otherwse directed in wrting by BPWCP.

19.5 Relationship of the Parties. 'Buyer agrees that nothig in thi Agreement
creates a joint venrue, agency, employment parership or silar relationship between it and BP\VCP, and Buyershall have no authority to bind BPWCP in any way. Buyer wil not assert otherwse. Buyer shall

undertke all obligations as an independent contractor and shall exercise and be resporuible for the exclusive control of the Premes, the employees and aU activities conducted there, Operator shall be
responsible for complyig with all the applicable workers'. and unemployment compensation, occupational disease, wage and hour, disabilty ::nd similar laws. BPWCP shall have no control over employees of the
Oper:tor. including without limittrion the term and conditions of (heir employment. Operator shall

contiuously display on th exterior of the buiding in a consicuous manner at a point visible and
accessible to the public a legible sign meetig BPWCP's specifications, sho\\ing tha.t Operator is the owner of the business being conduCted threon.

19.6 Waiver. No purorted waiver by either parr hereto of any proviion of ths
Agreement or of any breach threof shall be deemed to be a waiver of such pro";sion or breach unless such

waiver is in wrting signed by the part making such waiver. No such waiver shall be deemed to be a
subsequent w::iver of such prov.ision or a .,1!ver of any subsequent breach of the same or any other provision hh:reof.

19.7 Compliance. Buyer shall at all UIes comply with ::l! laws and applicable govenuent requirements and obiain and maintain aU necessary I1censes aed permts for the perfoimnce of its obligations hereunder.

19.8 Authoritv. Buyer hereby represents that as of the dare hereof. Buyer ha the
authority !o mtcr into this Agreement and that no consents of third parties other thn those which have been obtained and are art.'idied hereto are necessary to enuble Buyer ro perfonn its obligations hereunder. Buyer
represenis that as of the date of rrus Agreement, Buyer is in complianc!: with a l! iease.~, contrcts aiid
agreeme.ts affecÜng the Premises and Buycts use and possesion of

me Premies.

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, 19.9 Prior Course ur De:iJin!!. BPWCP::d Buyer acknowledge and agree that

this

Agreement is not to be reformed, altered, or