This lease, etc.
1. In consideration of lessee's payment of rent and performance of the obligations herein set forth, lessor hereby leases to lessee and lessee hereby leases from lessor the following described premises, together with all buildings, improvements and appurtenances situated thereon or thereto, used or to be used as automotive service station and located at _________, together with certain pumps, appliances, furniture, tools and other personal property located thereon, more fully described in attached schedule A. The property described on schedule A and in any receipt hereafter executed by lessee covering additional or substituted equipment and such equipment loaned by lessor to lessee without a receipt shall become part of and subject to the terms and conditions of this lease with the same force and effect as though embodied herein. Lessor and lessee agree that lessor in its sole discretion may replace any of such loaned equipment. By executing this lease, lessee acknowledges delivery of the premises from lessor and further acknowledges receipt of the equipment described in schedule A in good and operable condition and lessor's ownership thereof. Lessee further agrees not to remove any of such equipment from the premises without prior written approval of lessor.
2. Except as otherwise provided herein, the term of this lease shall begin on _________ and end on _________. Lessee may terminate this lease without cause at any time by giving lessor not less than 90 days' written notice. Notwithstanding any other provision contained herein, this lease is subject to the terms and conditions of any existing lease, contract, encumbrance or easement or any such document, right or interest which may hereafter be exchanged or substituted therefor, affecting lessor's rights to the premises. In no event shall lessee have or claim any right of possession or occupation of the premises at variance with the terms hereof or beyond the period of lessor's right thereto and, notwithstanding any other provision herein, the term of this lease shall automatically terminate without prior notice to lessee 24 hours prior to the expiration or termination of any such underlying lease or contract. Nothing herein shall obligate lessor to renew any such underlying lease, contract, encumbrance or easement. If the premises are held by lessor under lease, lessor shall have the right to exercise any termination rights under such underlying lease without liability to lessee.
3. Lessee shall pay to lessor as rent for the premises the following amounts:
(a). A sum based on total gallons of motor fuel (including gasoline, diesel fuel, and all other petroleum products usable as motor vehicle fuel) sold or otherwise delivered from the premises, including motor vehicle fuel consumed by lessee for its own purposes, during each calendar month or fraction thereof in accordance with the following schedule: _________. Such amount for each calendar month or fraction thereof shall be due and payable to lessor on or before the 10th calendar day of the next succeeding month and on the last day this lease is in effect, unless a different payment schedule is established from time to time by lessor, or, if lessor so elects, such amounts shall be due and payable at the time of payment by lessee for motor vehicle fuel purchased from lessor. In the event different payment schedules are so established by lessor, it is agreed that for accounting convenience such amount shall be paid at the highest rate per gallon set forth above. Within 20 days after the end of each calendar month, lessee's rental account will be adjusted and, in the event lessor shall have collected more than the amount due from lessee pursuant to the above schedule, lessor shall refund or credit such excess to lessee, whichever lessor may from time to time select. During such time and to the extent lessee takes title to motor vehicle fuels delivered to the service station prior to their passing through the dispensing pumps "gallons of motor vehicle fuel sold" shall be deemed to be all gallons of motor vehicle fuel delivered to the premises.
(b). $_____ per calendar month for the following special facilities at the premises: _________. Lessee shall pay the amount due for special facilities rent on or before the first day of the term hereof and thereafter on or before the 10th day of each calendar month. For periods less than a full calendar month such special facilities rent shall be prorated on a daily basis.
(c). $_____ for each 24 hours, cumulative or consecutive, in any calendar month during the hours of operation specified herein as normal working hours that lessee fails to maintain adequate and sufficient quantities of motor vehicle fuels to offer for sale to the public. If such failure is for more than 48 hours in any calendar month such failure will be considered a default under this lease and lessor may thereafter terminate this lease in accordance with the provisions for termination set out herein. Lessor and lessee hereby agree that such amount represents the average sum due and payable on normal sales of motor vehicle fuels for each 24 hour period as set out in paragraph 3(a). Such amount shall be in addition to other rent specified herein and shall be payable in a lump sum immediately upon demand by lessor.
4. Lessor agrees to deliver to lessee possession of the premises at the time and date the term of this lease commences, and covenants lessee's peaceable use and enjoyment thereof. Lessor shall pay all ad valorem taxes assessed upon the premises except any increase in such taxes attributable to or assessed upon any improvements, additions or equipment installed by lessee. Upon expiration or termination of this lease, lessor agrees to purchase from lessee, at lessee's net cost determined on a first-in-first-out basis and evidenced by receipted invoices, all inventory on the premises held for sale by lessee and purchased from lessor. Such inventory must be in first class condition, in the original container and must bear the original labels and trademarks with no evidence of deterioration. Failure of lessor to perform any of its obligations under this paragraph 4 shall give lessee the right to terminate this lease on 15 days' written notice.
5. Lessee agrees to use the premises and loaned equipment solely in the lawful, diligent, and businesslike operation of an automotive service station selling automotive products and fuels and rendering services normally offered at such stations. Lessee agrees at all times to operate his station in accordance with all applicable federal, state, and municipal laws, ordinances, rules, regulations, conditions, requirements, permits and licenses. Lessee further agrees to maintain inventories of and to offer to sell to the public automotive products in sufficient quantities to satisfy the needs of customers _________ days each week during the hours _________ to _________. Lessee shall not permit nor cause the premises to be used in any manner which might reflect unfavorably on lessor's goodwill with the public and will take no action which might tend to discredit lessor in any way. Lessee shall devote full time and personal attention to the operation of the premises, arrange and display inventory and sales promotional material in an attractive manner, fully illuminate the premises during periods of decreased visibility as required for safety and to attract the public, and maintain adequate and efficient attendants attired in clean and appropriate uniforms.
6. Safe operation of the premises shall be assured at all times. Accordingly, lessee agrees not to allow or permit any of the following on the premises:
(a) welding or open-flame burning;
(b) drainage of gasoline inside buildings;
(c) storage of gasoline inside buildings.
7. No parking or storage of motor vehicles, except those being serviced by lessee, shall be allowed on the premises.
8. Lessee shall exercise and be responsible for the exclusive control of the premises and shall undertake all obligations herein prescribed as an independent contractor. Neither lessee nor its employees shall hold itself, himself or themselves out at any time as employees or agents of lessor. Lessee shall continuously display on the exterior of the station in a conspicuous manner at a point visible and accessible to the public a legible sign showing that lessee is owner of the business being conducted thereon.
9. Lessee agrees to pay promptly when due all charges for utilities on the premises including, but not by way of limitation, telephone, water, gas, electricity, heat and sewage charges.
10. Lessee shall be solely responsible for the maintenance and repair of the premises and loaned equipment, and for the replacement of all worn out or damaged fixtures.
11. Lessee shall maintain the premises and loaned equipment in a clean, orderly, sanitary and safe condition. Lessee shall not store, or permit to be stored on the premises any trash or other unsightly materials except in proper closed containers. Lessee at its own expense shall be solely responsible for removal of ice and snow from the premises (including adjoining pedestrian rights-of-way), care of grass and shrubbery, and cleanliness of rest rooms and furnishing adequate rest room supplies. Lessee shall promptly clean all oil or gasoline spills on the premises.
12. Lessee shall make no alterations to the premises nor display any sign or advertising material not relating to the businesslike operation of an automotive service station without the prior written consent of lessor. Any equipment or trade fixtures affixed to the premises by lessee shall become the property of lessor upon termination or expiration of this lease.
13. Lessee shall repair any damage to the premises or loaned equipment caused by fire or other casualty which is the direct or indirect result of the negligence or wilful misconduct of lessee or its agents, employees or contractors, or a default by lessee of any provision of this lease. Lessor shall have the option to repair or rebuild and lessee shall reimburse lessor for all costs thereof.
Lessor shall repair any damage to the premises or loaned equipment which is not the direct or indirect result of lessee's wilful misconduct, negligence, or default. If the premises remain fit for the operation of lessee's business, lessee shall continue to pay the rents stipulated herein during such period of repair. If the premises are damaged to an extent that the operation of lessee's business is no longer practical, lessor shall have the option to terminate this lease on written notice to lessee within 10 days after the occurrence of such damage, or repair or restore the premises. If lessor should elect to repair or restore the premises, the rents payable hereunder shall be abated until lessor redelivers the premises to lessee. The term of this lease shall not be extended by reason of such destruction and restoration.
14. If the premises or any portion thereof should be the subject of condemnation or conveyed in any other manner for public purposes, this lease shall terminate on the date title passes to the acquiring public authority, provided, however, if only a portion of the premises is so acquired and the remaining portion is suitable for the continuation of lessee's business, this lease shall terminate only as to such acquired portion and all terms and provisions of this lease shall otherwise remain in full force and effect. Lessee shall not be entitled to any portion of any compensation awarded paid for such acquisition and lessee hereby waives and assigns to lessor all claims thereon.
15. Lessee shall have the right to display lessor's trademarks in connection with the sale of lessor's products during the term of this lease. All signs, advertising and indicia used in the promotion, sale or distribution of lessor's products furnished by lessor to lessee shall remain the property of lessor, shall not be modified or altered by lessee, and shall be returned in good condition to lessor immediately on demand. From time to time and without prior notice to lessee, lessor shall have the right to change, alter or modify its trademarks and advertising material.
16. Lessee covenants and agrees to indemnify, hold harmless and defend lessor from and against all claims, losses and damages for personal injury or death or damage to property occurring on the premises, arising out of lessee's use or occupancy of the premises, or arising out of lessee's operation of the service station business, excepting any damage or loss caused solely by the negligence of lessor or solely by lessor's failure to perform its obligations hereunder.
17. During the term of this lease, lessee covenants and agrees that it will maintain at its own expense insurance coverage in the following types and amounts: _________.
18. Lessor, with its agents, representatives and employees, shall have the right to enter on the premises for the purpose of examination and inspection to ascertain lessee's compliance with the terms of this lease and, upon 30 days' written notice to lessee, for the purpose of altering or modifying its signs and other advertising material. Lessor shall also have the right to audit and inspect lessee's books and records to verify lessee's reports and compliance hereunder.
19. Lessee shall be considered in default under this lease for any of the following actions or occurrences:
(a). Failure of lessee to pay rent or any other sum due and owing lessor pursuant to the provisions of this lease within 5 days after such rent or sums are due and payable.
(b). Failure of lessee to maintain the adequate and sufficient motor vehicle fuel inventories during the hours of operation specified in paragraph 5 herein for a period of 48 hours or more, cumulative or consecutive, in any calendar month.
(c). Failure by lessee to comply with any of the covenants, terms and conditions of this lease within 5 days after receipt from lessor of notice to correct such failure.
In addition to any other rights lessor may have at law or at equity for a default described in this paragraph 19, lessor shall have the right forthwith and without notice to terminate this lease and declare forfeited lessee's interest in and to the premises and loaned equipment.
20. The occurrence of any of the following shall result in the automatic termination of this lease and a forfeiture of lessee's interest in and to the premises and loaned equipment:
(a). Failure of lessee to obtain the release of an attachment, garnishment, execution, or levy against the premises or loaned equipment or the business conducted by lessee on the premises within 72 hours after any such lien attaches.
(b). Institution of bankruptcy, insolvency, receivership, or trusteeship proceedings, voluntary or otherwise, or an assignment for the benefit of creditors, by lessee.
(c). Abandonment of the premises by lessee.
(d). Death or disablement of lessee.
(e). Assignment or sublease, or any attempt to do so, of this lease by lessee.
21. In addition to any other rights lessor may have at law or at equity pursuant to this lease, for each day or fraction thereof after termination or expiration of this lease that lessee fails or refuses to vacate the premises and surrender the loaned equipment, upon demand lessee shall pay lessor the amount of $_____ plus the daily special facilities rent specified in paragraph 3(b) herein. Lessee and lessor hereby agree that such amounts represent the average daily rent otherwise due and payable to lessor. Such amounts shall be payable in addition to any other special damages caused directly or indirectly by lessee's holding over after the expiration or termination of this lease and lessor's acceptance thereof shall in no way affect lessor's right to immediate possession of the premises and loaned equipment and shall not afford lessee any right of possession beyond the date of termination or expiration of this lease.
22. Upon expiration or termination of this lease, lessor shall have the right to withhold from lessee payment of any monies due and owing lessee from any source whatsoever until lessor receives notification from lessee's creditors, including taxing authorities, that lessee has paid or otherwise satisfied all its creditors and all taxes imposed upon lessee by reason of its operation of the service station business contemplated herein.
23. In addition to any other rights lessor may have at law or at equity, upon default in payment of rent or other sums due and owing lessor pursuant to this lease, lessor may enter the premises, and, without demand, proceed by distress and sale of the goods there found to levy for rent and other charges herein payable. All costs, commissions and other charges shall immediately attach and become part of the claim of lessor for rent and any tender of rent without such costs, commissions and charges made after the issue of a warrant of distress shall not be sufficient to satisfy lessor's claim. Lessee hereby expressly waives in favor of lessor the benefit of all laws made or which may hereafter be made regarding any limitation as to the goods upon which, or the time within which, distress is to be made after removal of goods, it being the purpose and intent of this provision that all goods of lessee, whether on the premises or elsewhere, shall be liable to distress for rent. Lessee further hereby waives in favor of lessor all rights of tenants which may be waived, including, without limiting the foregoing, all exemptions, notices, rights of replevin, appraisal, appeal and stay of execution. Upon distress lessor shall have the right to remove from the premises all goods so levied upon. Lessee further agrees that lessor shall have the right to follow goods fraudulently removed from the premises and that lessor shall have the right to sell any goods distrained for rent at any time within 5 days after distraint.
24. This lease shall not be assigned in whole or in part by lessee nor shall lessee's interest in the premises or loaned equipment be assigned or sublet in whole or in part, either voluntarily or by operation of law.
25. Lessee hereby waives all notices or demands to quit possession prescribed by any law, statute or ordinance relating to any summary process or other procedure for obtaining possession of the premises.
26. All notices pertaining to this lease shall be in writing and addressed to the respective party's address specified in the commencement of this lease. Such notices shall be sent by prepaid certified or registered mail and shall be deemed to have been delivered, whether or not received, on the third business day after the date of mailing.
27. Failure of either lessor or lessee to require performance of any provision of this lease shall not affect either party's right to require full performance thereof at any time thereafter and the waiver by either lessor or lessee of a breach of any provision hereof shall not constitute or be deemed a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.
28. This lease and the attached schedule of property contain the entire agreement and understanding between the parties hereto. From the date on which the form of this lease begins, this lease automatically supersedes and terminates all prior leases between lessee and lessor or the predecessors of lessee pertaining to the premises and loaned equipment. No amendment, addition, alteration, modification or waiver of any provision of this lease shall be of any effect unless in writing and signed by the parties hereto.
In witness whereof, etc.
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