EXHIBIT 10.66
MASTER SUPPLY CONTRACT
FOR
RESALE OF OILS AND GREASES
THIS SUPPLY CONTRACT is made as of July 23, 1999 (the "Effective Date"),
between MOBIL OIL CORPORATION ("Seller"), with offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and PETRO STOPPING CENTERS, L.P. ("Buyer"), with offices at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Supply Contract").
1. Products; Quantities.
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(a) Seller agrees to sell and Buyer agrees to purchase, on the terms and
conditions of this Supply Contract, Seller's lubricants for those
Buyer operated Truckstops located at the addresses set forth on the
"List of Locations" at Exhibit 1, attached to and made part of this
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Supply Contract (the "Truckstop Locations"). As Buyer adds new Buyer
Operated Truckstop Locations to its Truckstop chain (each, a "New
Location"), Exhibit 1 will be modified to include them. "Buyer
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operated" locations includes locations operated by an affiliate of
Buyer and branded Petro. For purposes herein "Seller's lubricants"
shall be those set forth on Exhibit 2, as may be amended from time to
time.
Buyer agrees to purchase the Minimum Purchase Gallons of Seller's
lubricants set forth below, as adjusted from time to time pursuant to
paragraphs (b), (c) and (d) below:
The 1998 Baseline Lubricant Volume is 1,100,000 gallons
Gallons per year of
Calendar Year Growth Factor Mobil Lubricants
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1999 8.01% 1,190,000
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2000 12.9% 1,344,000
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2001 3.8% 1,395,000
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2002 4.3% 1,455,000
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2003 4.1% 1,515,000
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2004 4.2% 1,580,000
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2005 3.7% 1,640,000
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2006 4.0% 1,705,000
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2007 4.0% 1,777,000
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2008 4.0% 1,848,000
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2009 4.0% 1,921,920
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If, however, the price to Buyer from Seller for any consecutive sixty
(60) day period in a calendar year is equal to or greater than the
higher of (i) the price of Shell ▇▇▇▇▇▇▇ T plus ten (10) cents a
gallon and (ii) the price of Chevron Delo plus ten (10) cents a
gallon, the growth factor for the following calendar year(s) shall be
eliminated until such time as Sellers price to Buyer is less than or
equal to the higher of the above-described Shell and Chevron prices
plus ten (10) cents, at which time the growth factor for the remaining
calendar years will be resumed.
For years 1999 and 2009, the Minimum Purchase Gallons shall be pro-
rated, based on the actual number of days of the Initial Term (as
defined below) that fall within that calendar year.
For purposes of this Supply Contract, 8 pounds of grease equals 1
gallon of conventional oil and 1 gallon of synthetic oil equals 4
gallons of conventional oil. As used in this Supply Contract, the
terms "Seller's product" and "Seller's lubricants" are used
interchangeably.
(b) The volumes referenced above shall be adjusted calculated as follows:
Prior Year Adjusted Base Volume (as calculated below) (for 1999, the
prior year adjusted volume will be 1,100,000 gallons)
plus: 30,000 gallons for each New Location that had opened in the
previous calendar year
equals: Base Volume
times: Annual Growth Factor (noted above)
equals: Adjusted Base Volume
less: Permanent Adjustments (as defined below)
less: Temporary Adjustments (as defined below)
equals: MINIMUM PURCHASE GALLONS
(c) A list of Seller's lubricants that may be purchased by Buyer is set
forth on Exhibit 2, attached to and made part of this Supply Contract.
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Seller's lubricants, grades, trademarks, and packaging shall be those
marketed and used by Seller at times of deliveries for similar buyers
in Buyer's area, all as determined by Seller. Seller may change the
grade, specifications, characteristics, delivery package, brand name,
or other distinctive
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designation of any of Seller's product and such products as so changed
shall remain subject to this Supply Contract. Buyer may purchase any
combination of lubricants listed on Exhibit 2 in order to comply with
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the purchase obligations set forth above. If Seller deletes without
replacing a product listed on Exhibit 2, Buyer's purchase obligations
shall be adjusted pursuant to Section (c)below.
(d) A "Permanent Adjustment" or a "Temporary Adjustment" is a
reduction in the Minimum Purchase Gallons due to one or more of
the events listed below.
Permanent Adjustment: Upon the occurrence of any of the following
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events, the Minimum Purchase Gallons shall be permanently reduced
by the Effected Volume (as defined below): (i) if a decision is
made by the Board of Directors of Petro Stopping Centers, L.P. to
divest a Truckstop Location; (ii) as a result of an action of
eminent domain, a Truckstop Location's operations must be
permanently shut down; or (iii) Mobil discontinues, without
replacing with a comparable product, any Product listed on
Exhibit 2 (a "Product Discontinuation").
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Temporary Adjustment: Upon the occurrence of any of the following
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events, the Minimum Purchase Gallons shall be temporarily reduced
by the Effected Volume: (i) Mobil's inability to supply product
at a Truckstop location for a period greater than 30 days; or
(ii) because of a Force Majeure Condition (as defined in Section
10 below), Petro is unable to operate the Truckstop facility for
a period of greater than twenty-four (24) hours. Petro shall
advise Mobil of any said outages in a timely fashion in order to
establish a Temporary Adjustment.
Effected Volume: The "Effected Volume" will be calculated as
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30,000 gallons (plus the cumulative volume growth using the
growth factors applied pursuant to Section 1(a) up to the date
of the Permanent Adjustment) for each Truckstop Location affected
by one or more of the above-described events, prorated over the
period of time that the event is in effect for that Truckstop
Location, except that if the only such event for a Truckstop
Location is a Product Discontinuation, then the Effected Volume
will equal the average annual volume of that product that Buyer
purchased from Seller during the three (3) years preceding such
Product Discontinuation, prorated over the period of time that
the Product is Discontinued.
2. Marketing Obligations. During the term of this Supply Contract, Buyer
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agrees:
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(i) to offer Mobil Delvac 1300 Super at all Truckstop Locations operated
by Buyer;
(ii) not to allow any advertising or promotional materials of competitive
brands of engine oil outside or inside any of its facilities,
including the fuel islands. However, Buyer may display non-
promotional signs (that is, purely informational, stating the pricing
of products or services) for competitive brands of engine oil inside
the lube bays and Buyer may display advertising materials of a
competitor that purchases advertising space through Motor Media or a
similar 3rd party advertising company;
(iii) to ensure that 50% of shelf space in the Truckstop Locations
dedicated to commercial engine oils, heavy duty motor oils only
(CEO), will be used for the display of Mobil Delvac engine oils;
(iv) to discontinue (subject to and in accordance with Buyer's current
contractual obligations) the sale of private label lubes at Buyer's
Truckstop Locations to the extent that replacement of Buyer's private
label products with Seller's brand oils and greases is economically
attractive for Buyer under commercial terms to be mutually acceptable
to Buyer and Seller; and
(v) to use its commercially reasonable efforts to ensure that it
increases its sales of Seller's lubricants. These efforts will
include but not be limited to the following:
a. Buyer shall display an internally illuminated Mobil Delvac sign,
provided at Seller's sole cost (dimensions of no less than 4' x
6', local permitting withstanding) on the most visible side of
the garage (a metal sign - dimensions to be determined - will be
used at those locations that cannot accommodate an internally
illuminated sign) and (local permit withstanding) two Mobil
Delvac exterior snaplock signs between the lube bay entrance
doors promoting Delvac products, programs and/or promotions.
Buyer shall not display any competitive product signage on the
exterior of any Truckstop Location.
b. Buyer shall display at least two (2) Mobil Delvac snaplock signs
(or other Mobil product data signs) and one (1) bay banner,
provided at Seller's sole cost, inside the garage of each
Truckstop Location.
c. Buyer shall display a Mobil Delvac snaplock sign, counter mats,
counter top display, applicable promotional floor displays, and
Delvac Accutrack signage, provided at Seller's sole cost, inside
the
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garage waiting area of each Truckstop Location. Buyer shall not
display any competitive product signage on the inside of any
Truckstop Location garage waiting area.
d. Buyer shall participate in the Mobil Delvac Accutrack Oil
Analysis Program and carry the related kits and display signage,
POP materials and program details at all lube bay locations at
each Truckstop Location, all of which (excluding the kits) will
be provided at Seller's sole cost.
e. Buyer shall participate in the Mobil Delvac Extended Life Oil
Filter Program and carry the related filters and display the
related signage, POP materials and program details at all lube
bay locations at each Truckstop Location, all of which (excluding
the filters) will be provided at Seller's sole cost.
f. Subject to existing uniform supply company agreements, Buyer
shall ensure that all service writers wear Mobil Delvac patches,
provided at Seller's sole cost, on their shirts/jackets and all
garage personnel wear Mobil Delvac hats, provided at Seller's
sole cost.
g. Buyer shall participate in all promotions offered by Seller where
commercially reasonable and shall not display promotions of
competitive oil suppliers.
h. Buyer shall not participate in any service writer or garage
personnel incentive programs offered by competitive oil suppliers
for so long as Seller offers these programs in the same calendar
year and provides Buyer with the program and promotion plan prior
to the beginning of the calendar year in which the program is
offered.
i. Buyer shall use commercially reasonable efforts to encourage
existing and future franchisees to purchase, promote and sell
Seller's lubricants as set forth herein.
Buyer and Seller agree to actively promote Mobil Delvac 1300 Super and
other of Seller's lubricants during the term of this Supply Contract,
including participation in jointly developed and national CEO promotions.
If Buyer's lubricant sales decrease substantially (defined as a 5% decrease
in sales of competitive lubricants during a promotional period from the
prior 90 day non-promotional period) for a sustained period of time (more
than 90 days) because of the limitation on Buyer's ability to advertise or
promote competitive brands of engine oil, Seller agrees to meet with Buyer
to discuss this limitation on advertising and promotions of
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competitive brands of engine oils and to negotiate in good faith
modifications to this provision or additional actions to be taken. For
purposes of this paragraph, promotions of competitive brands of engine oils
include giveaways, rebates, coupons and the like.
3. Term. The term of this Supply Contract is for an initial term of ten (10)
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years, beginning on the Effective Date and ending on tenth anniversary of
the Effective Date (the "Initial Term"). In addition, Seller may, at its
option, extend the term of this Supply Contract for an additional period of
five (5) years (the "Extended Term"). The Minimum Purchase Gallons for each
calendar year of the Extended Term shall be equal to the Minimum Purchase
Gallons for year 2009 as calculated in Section 1.(b). For years 2009 and
2014, the Minimum Purchase Gallons shall be prorated, based on the actual
number of days of the Extended Term that fall within that calendar year.
Upon the exercise of this option, said extension shall be for the same
consideration and under the same terms and conditions as herein provided,
and no new agreement need be entered into. Seller may exercise this option
with or without exercising its option to extend that certain PMPA Motor
Fuels Franchise Agreement of even date herewith. Seller may exercise its
right to extend the term of this Supply Contract by giving Buyer written
notice of such election not less than 180 days prior to the expiration of
the Initial Term. In the event Seller elects to so extend the term of this
Supply Contract, Buyer shall have the right to cancel this Supply Contract
at the end of the Initial Term by giving Seller written notice of such
election not less than sixty (60) days prior to expiration of the Initial
Term and paying to Seller on the last day of the Initial Term a termination
fee calculated as follows (the "Termination Fee"): The present value of the
anticipated income stream from the Minimum Purchase Gallons that would have
been required for the five years of the Extended Term at One Dollar ($1.00)
per gallon, discounted at 12%, based on a five (5) year stream received in
arrears. For purposes of calculating the Termination Fee, the Annual
Prospective Gallons equals the Minimum Purchase Gallons for year 2009 as
calculated in Section 1.(b).
4. Prices, Terms; Deliveries
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(a) Prices. Initial prices of Seller's products are set forth on Exhibit
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2. Prices are prior to taxes.
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(b) Terms of Payment. Net 15 prox (15th day of the month following the
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month in which delivery is made) or Net 30 days from the day of
delivery. Cash discounts, if any, are not applicable to taxes, freight
charges, or container charges. Seller shall forward invoices for
Seller's products purchased by individual Truckstop Locations to Buyer
for payment within 30 days.
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(c) Deliveries. Deliveries of Seller's lubricants shall be made by
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Seller's authorized distributors, selected by Seller in its sole
discretion, and shall be promptly received by Buyer. Minimum order
quantity for tank truck delivery of Seller's products is 6,000
gallons; minimum order quantity for packaged Seller's lubricants
(drums and pails) is 110 gallons; minimum order quantity for tankwagon
delivery is 250 gallons. Deliveries made below minimums are subject to
a small order premium. Buyer will dedicate bulk storage facilities to
accommodate 6,000 gallon tank loads of Mobil Delvac 1300 Super.
Title to, and all risk of loss of or damage to, any of Seller's
products shipped to Buyer passes to Buyer at the delivery point.
Seller's products are received by Buyer when delivered to Buyer at the
delivery point specified by the ordering Truckstop Location.
If Buyer defaults in the payment of any indebtedness to Seller, in
addition to any other rights it may have, Seller may immediately
change the terms of payment and may suspend deliveries of all of
Seller's products and apply any funds that Buyer may have on deposit
in Seller's custody to the payment of the indebtedness.
(d) Price Adjustment. Seller may adjust the price or terms of payment for
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Seller's products at any time by giving Buyer at least thirty (30)
days written notice. However, Seller agrees that it will not increase
the price of any product during the first year of this Supply Contract
unless, and to the extent, that Seller's costs of additives,
transportation, base oils, crude, and/or packaging components increase
("Cost Increases"). After the first year of this Supply Contract,
price increases, if any, shall be reasonably consistent with prices
charged by nationally recognized competitors, provided that Seller
shall always have the right to increase prices to cover any Cost
Increases. In no event, however, shall the price to Buyer be greater
than that charged by Seller to other customers in similar classes of
trade.
5. Taxes. The amount of any present or future governmental tax, fee, duty or
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other imposition (not included in the price or otherwise paid by Buyer) on
or measured by: (a) this Supply Contract; (b) Seller's products or
constituent materials covered by this Supply Contract; or (c) the
manufacture, sale, use, transportation or handling of Seller's products or
materials shall be paid by Buyer to Seller, unless Buyer is required by law
to make payments directly to the governmental taxing unit. Any and all
exemptions from taxes claimed by Buyer must be set forth on Exhibit 1.
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6. Trademarks; Trade Dress; Brand Names; Advertising. Buyer shall use
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Seller's trademarks, trade dress, and brand names (as the same may be
modified by Seller from time-to-time, in its sole discretion, "Trademarks")
to identify and advertise Seller's products. The Trademarks shall not be
used for any other purposes or in any manner that may confuse or deceive
the public.
Buyer shall not mix any other products with Seller's lubricants or
adulterate them in any way, and shall not use the Trademarks in connection
with the storage, handling, dispensing, or sale of any adulterated, mixed
or substituted Seller's lubricants. Seller may take samples from Buyer's
tanks to ensure product integrity.
All advertising, including color schemes, of Seller's products are subject
to Seller's approval. Any violation of the provisions of this Section 6
gives Seller the right to immediately terminate this Supply Contract. On
any termination of this Supply Contract, Buyer shall immediately
discontinue: (a) referring to Seller, (b) using Seller's color schemes,
Trademarks and slogan, (c) advertising Seller's products, (d) return to
Seller, at no cost to Seller, all signs, advertising and promotional
material in Buyer's possession, and (e) repay all amounts owing to Seller
in accordance with this Supply Contract.
Buyer acknowledges that injunctive relief is an adequate remedy for Buyer's
violation of this Section 6. Buyer agrees to pay Seller's reasonable
attorney fees if Seller institutes legal action to enforce any provisions
of this Section 6 and prevails in such legal action.
7. Containers. All containers on which Seller charges a deposit ($20.00
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deposit on drums) remain Seller's property, must be used only for the
original contents, and must be returned when empty to Seller's shipping
point, freight collect. If Seller maintains a regular pick-up service in
Buyer's area, Seller may collect containers on notice from Buyer. For
purposes of this Section 7, empty means does not contain: solids, trash,
unpourable liquid exceeding 1 inch or any pourable liquid.
Deposit charges are payable without discount when payments for the contents
are due. Deposit charges are refundable if the containers are returned in
their delivered condition, less ordinary wear, within ninety (90) days
after delivery. If containers are not returned, Seller may retain the
deposit charges in settlement for the containers and expenses.
8. Product Quality Control. Buyer has a duty to protect the quality of
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Seller's products delivered to it by Seller or Seller's authorized
distributors. Seller represents that the Mobil lubricants that it supplies
under this Supply Contract: 1) meet applicable API standards and 2) will
meet future applicable API standards.
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9. Claims; Release. Seller has no liability for any defect in quality, or
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shortage in quantity, of any of Seller's products delivered unless Buyer
gives Seller or Seller's authorized distributor notice of Buyer's claim
within: (a) two (2) days after delivery for shortages in quantity of
Seller's products, or (b) within four (4) days after delivery for quality
deficiencies, and further provides Seller with a reasonable opportunity to
inspect Seller's products and take test samples.
Any other claim by Buyer of any kind, based on or arising out of this
Supply Contract or otherwise, is waived and barred unless Seller is given
written notice within one hundred eighty (180) days after the event,
action, or inaction to which the claim relates. Further, any claim is
waived by Buyer and barred unless asserted by the commencement of an action
within twelve (12) months after the event, action, or inaction to which the
claim relates. Seller is not liable for prospective profits or special,
indirect, or consequential damage.
10. Contingencies.
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(a) Seller shall not be liable for loss, damage, or demurrage due to any
delay or failure to perform:
(i) because of compliance with any action, order, direction, request,
or control of any governmental authority; or
(ii) as a result of any disruption in the production, manufacture,
storage, transportation, distribution, or delivery of Seller's
lubricants, or the unavailability or inadequacy of supply of
Seller's lubricants, because of wars, hostilities, public
disorders, acts of enemies, sabotage, strikes, lockouts, labor or
employment difficulties, fires, floods, acts of God, accidents or
breakdowns, plant shutdowns for repairs, maintenance or
inspection, weather conditions, or for any other cause that is
beyond the reasonable control of the obligated party when acting
in good faith and in the ordinary course of business, whether or
not similar to any of the foregoing (each, a "Force Majeure
Condition").
Seller is not required to remove any cause or replace the affected
source of supply or facility if it involves additional expense or a
material departure from normal practices.
If, for any cause, there is, or Seller believes in its reasonable
opinion there may be, a shortage of supplies, for whatever reason, so
that Seller is or may be unable to meet the demands of all of its
customers of all kinds, Seller may allocate to and among its customers
in each class of trade quantities of Seller's products as Seller
determines in the exercise of its ordinary
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business judgment it has available for distribution to that class of
trade from any given terminal or point of supply, provided that
Seller's plan of allocation shall not unreasonably discriminate
between Buyer and Seller's other customers in that class of trade.
Seller shall not be required to make up any deliveries or quantities
omitted under the provisions of this Section 10, including but not
limited to, deliveries or quantities omitted pursuant to Seller's
right to allocate Seller's products among its customers, nor shall
Seller be liable for any damages or losses in connection with omitted
deliveries or quantities.
In all instances when a decision or determination of Seller is
referred to in this Section 10, the decision or determination shall be
made in Seller's sole and absolute discretion acting in the ordinary
course of business.
(b) Buyer shall not be liable for loss, damage or demurrage due to any
delay or failure to perform as a result of any Force Majeure
Condition, provided that in no event will an inability to pay amounts
due be deemed a result of a Force Majeure Condition.
11. Indemnity.
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(a) Buyer shall defend and indemnify Seller, and its agents, servants,
employees, successors, and assigns from:
(i) any fines, penalties, charges, or expenses, for violations of any
law, ordinance or regulation, caused by any act or omission,
whether negligent or otherwise, of Buyer or its agents, servants,
employees, or others under it; and
(ii) any claims, losses, liability, suits, liens and expenses for
death, personal injury, property damage, or any other injury or
claim arising out of the use, occupancy, operation, services
offered by, or maintenance of Buyer's Truckstop Locations
(including adjacent sidewalks, drives, and curbs), lubrication
equipment, or Buyer's other businesses or any of its operators,
lessees, agents, contractors, employees, customers, or others
under it.
(b) Seller shall defend and indemnify Buyer, and its agents, servants,
employees, successors, and assigns from:
(i) any fines, penalties, charges or expenses, for violations of any
law, ordinance or regulations caused by any act or omission,
whether negligent or otherwise, of Seller or its agents,
servants, employees or
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others under it; and
(ii) any claims, losses, liability, suits, liens and expenses for
death, personal injury, property damage, or any other injury or
claim arising out of Seller's, or its agents', contractors',
employees' or others' under it, performance under or
nonperformance of this Supply Contract.
(c) The provisions of Sections 9 and 11 survive any termination or
nonrenewal of this Supply Contract, however arising.
12. Permits. Buyer must obtain all required permits and licenses in
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connection with its operation of the Truckstop Locations and must comply in
all material respects with all applicable governmental laws and
regulations.
13. Seller's Right to Terminate; Default; Payments Due on Termination.
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(a) If Buyer is in default under this Supply Contract, or under any other
agreement between the parties: (i) Seller may suspend deliveries (to
the Truckstop Location in default) during the default; (ii) Seller
shall provide notice of default to Buyer and Buyer shall have thirty
(30) days to cure such default; thereafter, if the default continues,
Seller may terminate this Supply Contract with respect to the
Truckstop Location in default and the payment provisions in Section
13(c) shall apply.
(b) Upon providing written notice to Buyer, Seller may immediately
terminate this Supply Contract (with respect to one or more Truckstop
Locations) upon the occurrence of one or more of the following events:
(i) Buyer or any affiliate of Buyer fails to comply with the
provisions of Section 6 of this Supply Contract;
(ii) Buyer does not meet its purchase obligations as set forth in
this Supply Contract;
(iii) without Seller's prior written consent, more than 30% of the
voting shares or other form of ownership and control of Buyer
is sold or transferred to a party that Seller considers to be a
direct competitor;
(iv) Buyer becomes insolvent; an insolvency, receivership or
bankruptcy proceeding is commenced by or against Buyer; or Buyer
makes an assignment for the benefit of creditors; or
(v) Buyer attempts to assign or otherwise transfer its interest in
this
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Supply Contract in contravention of the terms of Section 22.
(c) On or prior to the effective date of any termination (partial or
whole) of this Supply Contract, funds owed by Buyer to Seller with
respect to the affected Truckstop Location(s), including: (i) amounts
owing Seller for Buyer's purchases of Seller's products, and (ii) any
other amounts outstanding shall become immediately due and payable to
Seller.
14. Buyer's Right to Terminate. If Seller defaults under this Supply Contract,
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Buyer shall provide written notice to Seller and Seller shall have thirty
(30) days to cure such default; thereafter, if the default continues, Buyer
may terminate this Supply Contract upon providing thirty (30) days written
notice to Seller.
15. Damages.
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(a) Buyer acknowledges that Seller is relying on sales to Buyer of the
Minimum Purchase Gallons set forth in this Supply Contract. If, prior
to the expiration or earlier termination of this Supply Contract,
there is a change in the ownership of Seller or of Petro Stopping
Centers Holdings, L.P. such that the persons (including entities) that
are partners as of the Effective Date of either of those entities
cease to own a majority of the equity interests of Seller or Petro
Stopping Centers Holdings, L.P., respectively (a "Change in
Ownership"), the following liquidated damages shall apply. If,
subsequent to a Change in Ownership, a Material Default occurs under
Section 2 of this Supply Contract, Seller shall give Buyer written
notice of such Material Default and thirty (30) days to cure such
Material Default; provided however, that if the Material Default
occurs within the first ninety (90) days after the date of the Change
in Ownership, the 30-day cure period shall not commence until the 90th
day following the date of the Change in Ownership. If Buyer fails to
cure all defaults under Section 2 by the end of such 30-day cure
period, Seller may terminate this Supply Contract, and Buyer shall pay
Seller as liquidated damages $1.00 per gallon, multiplied by the
amount by which the Total Minimum Purchase Gallons exceeds the number
of gallons of Mobil lubricants actually purchased by Buyer prior to
the termination of this Supply Contract.
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(b) For purposes of this Section 15:
(i) "Total Minimum Purchase Gallons" means: (A) at any time prior to
Seller's exercise of its right to extend the term of this Supply
Contract (or if Seller has exercised that right but Buyer has
exercised its cancellation rights under Section 3 of this Supply
Contract): 17,370,920 gallons plus any gallon requirements added
for New Locations and less any Permanent Adjustments pursuant to
Section 1; and (B) at any time after Seller's exercise of its
right to extend the term of this Supply Contract (and Buyer has
not exercised its cancellation rights under Section 3):
26,980,520 gallons plus any gallon requirements added for New
Locations and less any Permanent Adjustments pursuant to Section
1.
(ii) A Change in Ownership shall be determined by including all
ownership changes from the Effective Date of this Supply
Contract on a cumulative basis, and a change in ownership shall
include any change in the power to vote the ownership interests
and shall include any veto power.
(iii) "Material Default" means Buyer's failure to comply with any one
or more of the requirements under Section 2 of this Supply
Contract, whether such failure is one of commission or omission,
on five (5) or more occasions during any twelve (12) month
period. Each day that such failure occurs shall be considered a
new and separate failure.
(c) The damages here liquidated are confined to losses resulting from a
Material Default subsequent to a Change in Ownership as described in
this Section 15, and shall not affect any other rights or remedies
that Seller may have under this Supply Contract (including without
limitation Seller's damages for any other breach of this Supply
Contract, Seller's rights to payment for products purchased or
Seller's rights and remedies under Section 13) or under applicable
law. If Buyer defaults in the payment of any amounts due pursuant to
this Section 15, or if Seller brings any action for breach of this
Supply Contract and is awarded any amount as a result, Buyer shall pay
all costs and reasonable attorneys' fees associated with collection of
such amounts.
16. Representations and Assurances. Seller is entering into this Supply
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Contract in reliance on Buyer's qualifications and representation to Seller
of its desire to operate the Truckstop Locations selling Seller's
lubricants. Buyer acknowledges that its conduct impacts Seller's products,
Trademarks, and other Seller's retailers,
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distributors, and dealers; therefore, Buyer agrees to conduct its business
in a manner that maintains and enhances public acceptance of Seller's
lubricants, Trademarks, and Seller's retailers, distributors, and dealers.
At all times, Buyer shall keep visible and legible Seller's logos, signs
and Trademarks used in connection with the sale of Seller's lubricants
inside of Buyer's Truckstop Locations.
17. Relation of Seller and Buyer. Buyer and Seller are independent
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businesses, and nothing in this Supply Contract creates any right in Seller
or Buyer to exercise any control over, or to direct in any respect, the
conduct or management of the other party's business, subject only to each
party's performance of their respective obligations set forth in this
Supply Contract. Neither Buyer nor any person performing work at the
Truckstop Locations for, or on behalf of, Buyer shall be considered as an
employee or agent of Seller.
18. Notices. All notices under this Supply Contract, except those under
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Section 6, must be in writing and delivered personally or sent by certified
mail to the address set forth below unless changed by notice. Notice by
mail is effective three (3) days from the postmark date.
Address for Seller: Mobil Oil Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Engine Oil Marketing Manager
With a copy to: Mobil Oil Corporation
Customer Support Center
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Buyer: Petro Stopping Centers, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel and
Attn: Sr. V. P. - Operations
19. Severability. If any provision or any portion of this Supply Contract or
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the application of it to any person or circumstance is finally determined
by a court of competent jurisdiction to be invalid or unenforceable, the
invalidity or unenforceability shall not affect the other provisions of
this Supply Contract.
14
20. Entire Agreement. This instrument (including the documents referred to
----------------
in this instrument and documents incorporated herein) contains the entire
agreement covering the subject matter, and supersedes any prior discussions
between the parties relating to the subject matter of this Supply Contract.
THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS OR WARRANTIES AFFECTING
THIS SUPPLY CONTRACT WHICH ARE NOT FULLY SET FORTH IN THIS SUPPLY CONTRACT.
21. Number of Truckstop Locations. Buyer and Seller acknowledge that the
-----------------------------
number of Truckstop Locations may change during the term of this Supply
Contract requiring additions or deletions to the number and location of
Truckstop Locations serviced by particular Seller's distributors and time
for Seller to prepare the necessary administrative connections so that
deleted or added Truckstop Locations are properly serviced. Buyer agrees to
provide timely notification of such events to Seller, enabling Seller to
accommodate such changes.
22. Miscellaneous. Any attempt to assign this Supply Contract by Buyer without
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obtaining Seller's prior written consent is void and constitutes a default
of this Supply Contract. The paragraph headings of this Supply Contract are
for convenience only and do not limit, amplify, or otherwise affect its
terms and conditions. Seller's right to require strict performance shall
not be affected by any previous waiver or course of dealing. Modifications
to this Supply Contract must be in writing and signed by an authorized
representative of each party.
23. Governing Law. This Supply Contract shall be construed and enforced in
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accordance with the laws of Delaware, without regard to its principles of
conflicts of laws. Where federal jurisdiction exists over any action, suit
or proceeding arising out of this Supply Contract, the parties designate
the United States District Court for the District of Delaware for the
exclusive resolution of that dispute, and submit to the jurisdiction of
that court. If federal jurisdiction does not exist over that dispute, the
parties designate the Delaware State Courts for the exclusive resolution of
that dispute and submit to the jurisdiction of that court.
EXECUTED as of the date first above written.
WITNESSES: MOBIL OIL CORPORATION
______________________ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Its: Distillate Business Manager
----------------------------
15
WITNESSES: PETRO STOPPING CENTERS, L.P.
______________________ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------
Its: President
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16
Exhibit 1
List of Locations
El Paso, Texas
Weatherford, Texas
Beaumont, Texas
San Antonio, Texas
Eloy/Casa Grande, Arizona
Corning, California
Amarillo, Texas
Shreveport, Louisiana
Hammond, Louisiana
West Memphis, Arkansas
Milan, New Mexico
Knoxville, Tennessee
Kingman, Arizona
Oklahoma City, Oklahoma
Perrysburg/Toledo, Ohio
Kingdom City, Missouri
Bucksville, Alabama
▇▇▇▇▇▇/Youngstown, Ohio
Effingham, Illinois
Atlanta, Georgia
Laramie, Wyoming
Medford, Oregon
Ocala, Florida
Vinton, Texas
Kingston Springs, Tennessee
Shorter, Alabama
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Ridge, California/1/
/1/Operated by Petro Travel Plaza LLC, an affiliate of Buyer.
17
Exhibit 2
Products and Initial Prices
5/10/99
PETRO P.S.C.
MAT'L-DESC. SCALE PRICE/$$ UNIT
986139 - LUBE HD 85W-140,2500LB. 0.5500 LB
988738 - DELVAC 1300 SUP 15W-40,BULK. From....... 1-999 3.0900 NG
1000-5999 3.0400 NG
6000 2.9400 NG
98064P - LUBE SHC 75W-90,375LB. 1.6000 LB
98070P - MOBIL 1 SYN GREASE,10X12 OZ. 2.6750 EA
98078D - LUBE HD 85W-140,120LB. 0.6750 LB
98087D - MOBIL 1 FORMULA 15W-50,6X1QT 14.8500 NG
98095J - MOBIL 1 SYNTHETIC ATF,6X1QT. 14.2600 NG
98120D - DELVAC 1300 SUP 15W-40,55GA. 3.4600 NG
98154P - TRANS SHC 50,105LB. 1.7300 LB
98177Q - MOBIL 1 SYNTHETIC GREASE,10X 2.6750 EA
98220D - MOTOR OIL 10W-30,55GA. 4.1900 NG
98242A - DELVAC 1,4X1GA. 13.4800 NG
98264P - LUBE SHC 80W-140,375LB. 1.6000 LB
98301P - GREASE HTM,3000LB. 0.5060 LB
98399N - MOBIL 1 FORMULA 5W-30,6X1QT. 14.8500 NG
98447N - LUBE HD 85W-140,12X1QT. 0.8067 LB
98456D - DELVAC 1300 SUP 15W-40,4X1GA 4.6200 NG
98456N - LUBE HD 80W-90,12X1QT. 0.8067 LB
98499E - MOTOR OIL 5W-30,12X1QT. 3.9800 NG
98512D - DELVAC 1230,4X1GA. 4.3400 NG
98544G - MOBIL 1 FORMULA 10W-30,6X1QT 14.8500 NG
98601P - LUBE SHC 75W-90,105LB. 1.6800 LB
98639N - TRANS HD 50,16GA. 4.2800 NG
98685P - TRANS SHC 50,375LB. 1.6500 LB
98754J - GREASE HTS,400LB. 0.7325 LB
98761P - LUBE SHC 80W-140,105LB. 1.6800 LB
98795D - GREASE HP,60X14.5OZ. 0.8635 EA
98898D - LUBE ▇▇▇ ▇▇▇-▇▇▇,▇▇▇▇. ▇.▇▇▇▇ ▇▇
▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇,▇▇▇▇▇. 4.3400 NG
98E038 - GREASE HP,400LB. 0.7250 LB
98E092 - LUBE HD 80W-90,400LB. 0.5950 LB
98E143 - MOTOR OIL 10W-30,12X1QT. 3.9800 NG
98E220 - MOTOR OIL 20W-50,12X1QT. 4.8100 NG
98E300 - LUBE HD 85W-140,400LB. 0.5950 LB
98E322 - MOBIL 1 FORMULA 15W-50,55GA. 14.1300 NG
98E325 - DELVAC 1,55GA. 12.8800 NG
98E340 - MOTOR OIL 10W-40,12X1QT. 3.9800 NG
98E345 - MULTIPURPOSE ATF,12X1QT. 3.8000 NG
98E467 - HEAVY DUTY 30,12X1QT. 4.1100 NG
98E880 - LUBE HD 85W-140,BULK. 0.5150 LB
98E967 - DELVAC 1300 SUP 15W-40,12X1Q 4.7100 NG
98K378 - GREASE HP,10X14 OZ. 0.8635 EA
98K791 - TRANS HD 50,55GA. 3.8900 NG
98W573 - MOBIL 1 SYN GEAR LUBE,12X1QT 2.1750 LB
18