Exhibit 10.46
PROPERTY LEASE
AGREEMENT
BE IT KNOWN, that, before the
undersigned Notary(ies) Public in the State of Louisiana, and in
the presence of the undersigned competent witnesses, personally
came and appeared:
PETRO STOPPING CENTERS, L.P., a
limited partnership of the State of Delaware, whose present mailing
address is declared to be 6080 Surety Drive, El Paso, Texas 79905,
herein represented by its duly authorized Chief Financial Officer,
Edward Escudero, in accordance with a resolution of the board of
directors thereof, hereinafter referred to as ALessor@,
who hereby leases and delivers
unto:
PETRO TRUCKSTOPS, INC., a
corporation of the State of Delaware, whose present mailing address
is declared to be 6080 Surety Drive, El Paso, Texas 79905, herein
represented by its duly authorized President, James A. Cardwell,
Jr., in accordance with a resolution of the board of directors
thereof, hereinafter referred to as ALessee@,
hereby accepting and leasing for
itself, its successors and assigns, and acknowledging due delivery
and possession thereof, the Egan Facility, constituting the land
and improvements of the Petro Stopping Center in Egan, Louisiana,
less and except those parcels of property upon which are located
the truck scales, said Egan Facility being located on the following
described property, to-wit:
See property description in Exhibit
A made a part hereof for all purposes.
Together with all buildings and
structures located on the property described in Exhibit A, and all
of the contents of said buildings and structures, less and except
the truck scales, hereinafter referred to as the
APremises@.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein and other
valuable consideration, and upon the terms and conditions
hereinafter set forth, this lease is made and accepted by Lessor
and Lessee (sometimes hereinafter referred to as the AParties@) for
and in consideration of all of the terms, conditions and
stipulations hereinafter set forth:
1. TERM : The term of this
lease (hereinafter referred to as the AAgreement@ shall be for a
period of one (1)year commencing on the 9th day of March, 2007.
This Lease shall automatically renew thereafter for additional
terms of one (1) year each unless Lessee gives Lessor written
notice of its intent to not renew this Agreement at least ninety
(90) days before the expiration of the primary term or any
renewal term that has begun to run.
Both Lessor and Lessee further agree
that this Agreement may be terminated at any time by either party
hereto by a party giving the other party notice of its intent to
terminate this agreement at least sixty (60) days before the
date that said party desires to terminate this
Agreement.
2. RENTAL . Lessee agrees to
pay to Lessor as rental payment during the full term hereof the sum
of TWENTY NINE THOUSAND ONE HUNDRED SIXTY SEVEN AND NO/100 DOLLARS
($29,167.00) per month, said rental payment being due on the 1st
day of the month subsequent to the execution hereof and on the
first day of every month thereafter. If the date of commencement is
other than the 1st day of the month, the rental payment for the 1st
month shall be prorated. The amount of the rental payment during
the renewal terms may be adjusted upon mutual agreement of Lessor
and Lessee.
All rental payments shall be paid to
Lessor on a monthly basis, and shall be due on or before the 1st of
the month. Rental payments shall be remitted to Lessor=s address as
provided in the notice paragraph 22 hereof.
Any rental payment received after
the 5th day of any month during the full term hereof shall be
considered delinquent. If any rental payment is not paid on or
before the 5th day of any month, Lessee shall pay interest on the
unpaid rent at the simple interest rate of twelve percent
(12.0%) per annum.
3. USE OF PREMISES : Lessee
will not carry on or permit upon the Premises any offensive use nor
allow same to be used for any unlawful or immoral purpose, it being
contemplated that at all times during the term of this Agreement
said Premises shall be devoted solely to use as part of a qualified
truck stop facility as defined in LSA-R.S. 27:301 et seq. and the
Louisiana Administrative Code, Title 42:Part XI:Section 2401 et
seq., as presently existing, and in any subsequent amendments
thereto.
4. LAW, ORDINANCES AND
REGULATIONS : Lessee hereby agrees to comply with any and all
laws of the State of Louisiana and all lawful federal, state and
local ordinances and regulations pertaining to the operation of the
business on the Premises, including but not limited to the laws and
regulations which govern operation of video draw poker devices, and
shall obtain all necessary licenses or permits to do business on
the Premises which may be required by any municipal or parish
ordinances, state laws or regulations, governmental authority, or
otherwise, and shall pay all fees in connection therewith as well
as fees imposed by reason of inspection of the Premises or the
equipment situated therein.
5. WARRANTY OF PEACEABLE
POSSESSION . Lessor covenants and agrees with Lessee that
Lessor has the right to lease the Premises, that the same is free
and clear of any and all liens, claims and encumbrances, and that
Lessor shall defend the same against all such claims whatsoever.
Lessor further covenants and agrees that Lessee, by paying all
rental payments and by observing and fulfilling the covenants and
obligations of the Agreement, shall lawfully and peaceably, hold,
occupy and enjoy the Premises during the initial term hereof and
any term thereafter, without any hindrance or molestation by
Lessor, or by any person(s) whomsoever purporting to claim a right
or interest in the Premises. Lessor does not warrant Lessee against
disturbances by any person(s) not claiming any rights or interest
in the Premises.
6. ASSUMPTION OF LIABILITY .
As additional consideration by the Lessee for its undertaking
herein, and pursuant to the authority of LSA-R.S. 9:3221, as now
existing and as hereafter amended, Lessee, in conformance with the
liability shifting and liability limiting provisions thereof,
hereby assumes all responsibility for the condition and use of the
Premises and for the land and any buildings or structures now
located thereon or hereafter constructed thereon, and Lessee agrees
to hold harmless, indemnify and defend Lessor from any claims,
actions or causes of action which may arise from injuries caused to
persons or property by any defect in the Premises or any building
or structure now located thereon or hereafter constructed thereon,
during the term of this agreement and during any term thereafter,
or while Lessee occupies the Premises, or which may arise after the
termination of this agreement from the fault of the Lessee,
Lessee=s employees, agents or invitees, to the full extent and in
the manner prescribed by law.
7. HOLD HARMLESS : Except at
provided in paragraph 8 hereof, Lessee shall indemnify, defend and
hold harmless Lessor and Lessor=s agents from and against any and
all claims, liabilities, losses, damages and actions, including
costs and expenses of defending against same, resulting or alleged
to result from any breach, violation or nonperformance of any
covenant or condition hereof, excepting therefrom any such claims
or expenses resulting from the failure of Lessor to fulfill any of
its obligations hereunder.
Except as provided in paragraph 8
hereof, Lessee shall indemnify, defend and hold harmless Lessor and
Lessor=s agents from and against the payment of any and all losses,
damages, legal costs and charges, inclusive of attorney=s fees,
paid by Lessor and lawfully and reasonably incurred or expended in
or about the prosecution or defense of any suit or other proceeding
in the discharging of the leases premises, or any part thereof,
from any lilen, judgment or encumbrance created, or permitted to be
created, by Lessee upon or against the Premises, or any building or
structure located thereon, or against Lessee=s leasehold interest
in the Premises, and also any costs and charges, inclusive of
attorney=s fees, incurred or expended on account of proceedings
instituted by Lessor to obtain possession of the Premises covered
by this agreement after the termination of this agreement by
forfeiture or otherwise.
Lessee shall indemnify, defend and
hold harmless Lessor and Lessor=s agents from and against any and
all fines, suits, claims, demands, liabilities, losses, damages and
actions, including costs and expenses of defending against same,
resulting or alleged to result from Lessee=s use or occupancy of
the Premises during the term hereof and any term thereafter,
excepting therefrom any such claims, losses or expenses resulting
from or caused by the negligence of Lessor or Lessor=s
agents.
8. UNDERGROUND STORAGE TANKS
: Lessee does not assume responsibility for the condition of any
underground storage tanks or other equipment, pipes, appurtenant
structures or devices used for the storage and dispensation of any
gasoline or petroleum products and Lessor shall indemnify Lessee
and hold Lessee harmless from and against all fines, suits, claims,
demands, liabilities, and actions, including costs and expenses of
defending against
such claims, resulting or alleged to result from
any breach, violations, or non-performance, any federal, state, or
local rules, laws or ordinances, including but not limited to, the
State of Louisiana, Department of Environmental Quality, or any
federal authority or agency regulating the storage and dispensation
of any gasoline or petroleum products.
9. MAINTENANCE : Lessor, at
its sole cost and expense, shall maintain and keep in good repair
the exterior walls of the Premises, its roof, foundation and the
concrete walkways and parking surface, provided such repair is not
necessitated because of negligence on the part of Lessee, its
agents and employees.
Lessee, at its sole cost and
expense, shall maintain the interior of the Premises, including
plumbing, electrical, piping, fixtures, equipment, painting or
decorating of any kind, and shall be responsible for all glass
frames that may be broken or damaged. Lessee shall also be
responsible for the maintenance of the heating and air conditioning
system in said Premises. Lessee further agrees to replace the whole
or any portion of the sewerage and sanitary fixtures should the
need arise, at its sole cost and expense. Upon expiration or
termination of this Agreement, Lessee shall redeliver possession of
the Premises in as good condition as the commencement of the term
of this Agreement, reasonable wear and tear only
excepted.
Any and all signs placed on the
Premises by Lessee shall be and remain the property and
responsibility of Lessee, and Lessee shall cause to be removed from
said Premises any and all signs so placed at the termination of
this Agreement so that the Premises will be in the same condition
as before said signs were placed thereon. All signs shall be
approved by Lessor prior to placement on the Premises and, shall be
in accordance with any regulatory requirements if it relates to the
operation of video draw poker devices.
Lessee shall be responsible for
keeping the paved parking area of the Premises clean and free
of
