EXHIBIT 99.17 **OMITTED INFORMATION
DENOTED BY ASTERISKS (* * * *)
HAS BEEN FILED SEPARATELY
WITH THE COMMISSION AND IS
THE SUBJECT OF A CONFIDENTIAL
TREATMENT REQUEST**
MASTER AGREEMENT FOR ATM FACILITIES
This Master Agreement for ATM Facilities ("Agreement") is between National
Convenience Stores Incorporated, a Delaware corporation ("Licensor") and
NationsBank of Texas, N.A., a national banking association ("Licensee"). For
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1 - INTRODUCTORY PROVISIONS
1.1 DEFINITIONS. The following terms used in this Agreement shall
have the following meanings. Other terms may be defined elsewhere in this
Agreement.
(a) "AGREEMENT TERM" means the term of this Agreement as specified
in Section 1.4.
(b) "ATM" means an automated teller machine or similar machine and
its related container, interior and exterior signage, and equipment operated by
Licensee.
(c) "ATM SITE" means the location of an ATM within a particular
Store.
(d) "BANKING PRESENCE" means a Market Area in which Licensee has a
banking center or branch as of the date of this Agreement, and any Market Area
in which Licensee establishes a banking center or branch after the date of this
Agreement.
(e) "CARD" means an automated teller machine card, debit card
and/or credit card with a magnetic stripe or any other device or medium that
when used with or without a personal identification number (PIN), can access an
ATM.
(f) "COMMUNITY MARKET STORE" means a Store located in a Market
Area outside the Market Areas specified in Exhibit "B". The initial list of
Community Market Stores is set forth in Exhibit C.
(g) "PREVIOUS PROVIDER" means the previous provider of automated
teller machines to Licensor's Stores in Texas.
(h) "PREVIOUS PROVIDER'S MACHINES" means the automated teller
machines, signage, and related equipment operated at Licensor's Stores in Texas
by the Previous Provider.
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(i) "CURRENTLY PROVIDED TRANSACTION" is defined in Section 1.2.
(j) "EFFECTIVE DATE" is defined in Section 1.4.
(k) "ELECTRONIC BENEFITS TRANSFER TRANSACTIONS" means
transactions related to governmental transfer payment programs such as food
stamps and welfare, including any administered by or contracted to
non-governmental entities.
(l) "EXCLUDED STORE" means a store facility owned or leased and
operated by Licensor, (including the building and other improvements and
surrounding grounds related to Licensor's operations at that facility) that is
acquired by Licensor after the date of this Agreement, and that is subject to a
contract not made or procured by Licensor (i) requiring a third party ATM to be
installed in that store facility or (ii) prohibiting the installation of
Licensee's ATM in that store facility.
(m) "FOREIGN TRANSACTION" means a Transaction using a Card not
issued by Licensee.
(n) "FIRST SUPPLEMENT" means Exhibit "A," listing the Initial
Texas Stores.
(o) "INITIAL TEXAS STORES" means the 661 Stores listed in the First
Supplement.
(p) "INSTALLATION DATE" means December 2, 1995, which is the date
scheduled for completion of the installation of the first ATM in the first of
the Initial Texas Stores, regardless of the actual completion date.
(q) "LICENSE" is defined in Section 1.3.
(r) "LICENSE FEE" is defined in Section 3.2(a).
(s) "LICENSE TERM" means a period of time commencing on (i)
December 2, 1995 for the Initial Texas Stores; and (ii) for any subsequent
Stores, the date of the applicable Supplement (unless otherwise specified in
that Supplement) and ending on the date this Agreement terminates, unless an
earlier termination date is specified in the Supplement or the License is
earlier terminated in accordance with this Agreement.
(t) "MARKET AREA" means a county in the State of Texas.
(u) "MINIMUM REVENUE GUARANTEE" has the meaning given in Section
3.2.
(v) "NATIONSBANK TRANSACTION" means a Transaction using a Card
issued by Licensee.
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(w) "SITE SURVEY" means a sketch or other drawing of a Store
provided by Licensor and initialled by the parties showing the ATM Site that
does not necessarily show other details of the Store and is not necessarily
drawn to scale, based upon a walkthrough of a Store by representatives of each
party for the purpose of the parties mutually agreeing upon the location of
the ATM in that Store.
(x) "STORE" means a store facility (other than an Excluded Store)
owned or leased and operated by Licensor, including the building and other
improvements and surrounding access ways, parking areas and other grounds
related to Licensor's operations at a given location. Licensor's Stores are
currently operated under the trade name Stop-N-Go.
(y) "SUBSEQUENTLY PROVIDED TRANSACTION" means a Transaction type,
other than a Currently Provided Transaction, added to the capability of an ATM
at a Store after the date of this Agreement and agreed upon by the parties in
accordance with Section 4.4 of this Agreement.
(z) "SUPPLEMENT" means a supplement to this Agreement pursuant to
which Licensor grants a License to Licensee.
(aa) "TRACKING PERIOD" means * * * * as defined in Section 3.2. In
the event that the Agreement is terminated prior to November 30, 2001, the * *
* * Tracking Period will be the period commencing on December 2, 1995 and
ending upon the termination of the Agreement.
(bb) "TRANSACTION" means a cash withdrawal or advance, deposit,
transfer (including transfer between accounts or Cards), balance or other
inquiry, payment, and/or * * * * by the Card issuing institution or its agent,
using an ATM located in a Store pursuant to this Agreement and shall include
each Currently Provided Transaction and each Subsequently Provided Transaction.
1.2 ATMS IN LICENSOR'S STORES. This Agreement states the procedure
and terms upon which Licensor will grant from time to time a license to
Licensee to locate ATMs and upon which Licensee will install and operate ATMs,
in the Initial Texas Stores and additional Stores. Each ATM Site location
shall be readily apparent upon entry to a Store either by location or interior
signage. Licensor will keep the ATM area free of obstructions that would
hinder servicing of the ATM. Unless otherwise mutually agreed, each ATM will be
* * * * or its substantial equivalent. An ATM will be capable of handling cash
withdrawals, transfers between accounts, balance inquiries, and credit card
cash withdrawals using VISA or MasterCard (together, "Currently Provided
Transactions"). Subject to Section 4.4, Licensee may elect from time to time
to provide other services as
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the states provide and/or share ATM services at Community Market
Stores; however, each ATM and Store exterior will have a sign which displays
the Licensee's logo.
1.3 MASTER AGREEMENT FOR SEPARATE LICENSES. To create a license
under this Agreement, the parties will execute a Supplement to this Agreement
identifying the applicable Store or Stores. With respect to each ATM Site,
this Agreement, together with the applicable Supplement shall constitute a
separate and independent license agreement (each such separate license
agreement being herein called "this License" or "the License") between Licensor
and Licensee with respect to that ATM Site, upon the special terms and
conditions, if any, stated for that ATM Site in the Supplement and also upon
all of the terms and conditions of this Agreement. Any particular License may
be amended, terminated or otherwise dealt with without affecting any other
License; however, all Licenses will terminate upon the termination of this
Agreement. Each ATM Site will be mutually agreed on and identified by the
parties through a Site Survey. A License may also be terminated by agreement
of the parties through execution of an addendum to the applicable Supplement.
1.4 AGREEMENT TERM. The Agreement Term shall commence on December2, 1995 (the "Effective Date") and, unless sooner terminated or extended, shall
end on November 30, 2001; provided that each party may rely on the
representations, warranties and indemnities of the other party in Article 2 as
of the execution of this Agreement.
1.5 EXCLUSIVITY.
(a) Throughout the Agreement Term, Licensee shall have the
exclusive right to place ATMs in Licensor's Stores in the State of Texas, and
shall be required to place and maintain ATMs in all of Licensor's Stores in the
State of Texas subject to and in accordance with paragraph (b) below and
Section 4.1. The First Supplement to this Agreement will include all existing
Stores of Licensor in the State of Texas. Unless the parties otherwise
mutually agree, each additional Store opened by Licensor in the State of Texas
will be added to this Agreement by a Supplement before an ATM is installed in
that Store. Throughout the Agreement Term, Licensor agrees that it will not
allow any portion of any Store in Texas to be used or leased for operation of
an ATM, excepting Licensee's use of the ATM Site therein. This provision is
not intended to restrict Licensor's continued acceptance of Electronic Benefits
Transfer Transactions or other transactions normally processed by retailers, at
its cash registers and its offer of point-of-sale "cash back" to its Customers
at its Stores through the use of magnetic or electronic cards or other devices,
so long as the latter is not aggressively promoted so as to adversely impact
usage of the ATM. Licensor also agrees that throughout the Agreement Term no
bank or other financial institution, other than Licensee, will be referred to
by name regarding deposit, loan or ATM products in connection with any external
signage at any Store.
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(b) * * * *
(c) Notwithstanding anything to the contrary in this
Agreement, Licensor may permit its Previous Provider to maintain and operate
the Previous Provider's Machines in Stores in which those Machines are
currently located until those Machines are replaced by Licensee in accordance
with Section 4.1(b).
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
Each party makes the following representations and warranties to the other.
2.1 ORGANIZATION. Each party is duly organized under its
respective jurisdiction of organization, is in good standing in such
jurisdiction, and has full power and authority to conduct its business as
presently conducted and as contemplated to be conducted by this Agreement.
2.2 AUTHORIZATION. Each party has authorized this Agreement by
all necessary corporation action and has the full and unrestricted right and
authority to make and perform this Agreement with the other party.
2.3 NO VIOLATION. The execution, delivery, and performance of
this Agreement will not violate any law, rule, regulation, agreement, or
restriction by which the party or its property is bound or to which the party
or its property is subject.
2.4 CERTAIN FACTS. The transactions contemplated by this
Agreement are predicated on the following factual representations and
warranties:
(a) Licensor represents and warrants that the Initial Texas Stores
comprise 661 Stores.
(b) Licensee represents and warrants the following:
(i) Licensee has approximately 1.2 million ATM or Debit
Cards outstanding in Texas;
(ii) Licensee has over 136 banking centers and 34 motor
banks in the Market Areas in which Licensee has a Banking Presence;
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(iii) Licensee has * * * * mailed to its customers in Texas
on a monthly basis;
(iv) Licensee has over 130 banking center ATMs;
(v) Licensee issues over * * * * per month;
(vi) Licensee issues over * * * * per month in banking
centers in Market Areas in which Licensor has Stores in Texas;
(vii) Licensee's banking centers located in Market Areas in
which Licensor has a Store presence, had customer deposits aggregating
approximately $15 billion reported in the Licensee's call report dated as of
June 30, 1994.
(viii) Licensee maintains a time and temperature telephone
system that has an audience of over 2 million calls per month; and
(ix) Licensee has more than 2,000 banking personnel that
can be involved in sales promotions.
2.5 HOLD HARMLESS. Each party agrees to indemnify and hold
harmless the other party, and the other party's affiliates (including any
parent or subsidiary corporation), and the directors, officers, employees and
agents of each of them, with respect to any claim, loss, cost, liability or
expense (including reasonable attorneys' fees) arising out of any breach of a
representation or warranty made by the indemnifying party in this Article 2.
ARTICLE 3 - GRANT AND FEES
3.1 GRANT OF LICENSE. Licensor hereby grants to Licensee a
separate License for the applicable License Term to install and operate an ATM
at the ATM Site in (i) each Store in the First Supplement and (ii) effective on
the date provided in any subsequent Supplement, each Store identified in that
Supplement. The License includes the nonexclusive rights to use the parking
and restroom facilities that are open to the general public at the Store,
subject to the provisions of the License. Unrestricted access to the ATM shall
be provided to Licensee and Licensee's employees, agents, ATM service
contractors, customers and other users of the ATM during the Store's hours of
operation.
3.2 LICENSE FEES; MINIMUM GUARANTEED REVENUE; REPORTS.
(a) For each ATM installed under this Agreement, Licensee
shall pay to Licensor a License Fee ("License Fee"), based on the Transactions
occurring through the ATM during the License Term, as follows:
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(1) for Currently Provided Transactions
(excluding ATMs at Community Market Stores except as provided in paragraph
(iii) below):
(i) $ * * * * per * * * * Transaction;
(ii) $ * * * * per * * * * Transaction; and
(iii) $ * * * * per Transaction * * * *; and
(2) for Subsequently Provided Transactions:
(i) $ * * * * per * * * * Transaction; and
(ii) all other Subsequently Provided Transactions
shall be at License Fees mutually agreed upon by the parties.
* * * *
* * * * Licensee agrees to pay to Licensor, on or before
January 25, 2002, the amount, if any, by which the Minimum Revenue Guarantee
for the period from December 2, 1995 through November 30, 2001 (the "* * * *
Tracking Period"), exceeds
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the sum of (i) the total of all License Fees generated by Transactions during
the Tracking Period plus (ii) the sum of the amounts, if any, of the Minimum
Revenue Guarantee payments made by Licensee to Licensor for * * * * pursuant
to the above provisions.
* * * * The term "Minimum Revenue Guarantee" as used in this
Agreement means, subject to adjustment as provided below, * * * * $16.5 million
for the * * * * Tracking Period. The dollar amounts of the Minimum Revenue
Guarantee stated in the preceding sentence are based on assumptions that ATMs
will be operated by Licensee in at least * * * * Stores for * * * * during the
* * * * Tracking Period. Excluding in each of the following cases ATMs in
Community Market Stores, to the extent, if any, that the number of ATM months
in any of the Tracking Periods is less than the assumed number, the amount of
the Minimum Revenue Guarantee for that Tracking Period will be proportionately
reduced and to the extent, if any, that the number of ATM months in any of the
Tracking Periods is greater than the assumed number, the amount of the Minimum
Revenue Guarantee for that Tracking Period will be proportionately increased.
For the purposes of this paragraph, the * * * * related to the * * * *
Tracking Period will not be adjusted.
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* * * * The License Fees shall be paid, by electronic funds
transfer [ACH], by direct deposit or by another method desired by Licensor and
consented to by Licensee, on or before the fifth business day following the
20th day of the month following the month in which earned. Licensor may charge
interest on amounts of the License Fees or the Minimum Revenue Guarantee
payments more than ten (10) days past due, at the lesser of the following
interest rates per annum: (i) the * * * * rate plus * * * * percent or (ii) the
* * * * rate * * * *.
* * * * Licensee shall submit to Licensor, electronically or
by other agreed means, on or before the twentieth (20th) day of each month, a
report that states the total number of Transactions for each individual ATM
during the preceding calendar month. The report will categorize the
Transactions per ATM by Transaction type, will distinguish Currently Provided
Transactions from Subsequently Provided Transactions, and will distinguish
Transactions as NationsBank Transactions, Foreign Transactions, or Transactions
involving the Community Market Stores. The report will calculate the
applicable License Fees for that month. On or before the 45th day following a
Tracking Period, Licensee shall submit to Licensor a report for that Tracking
Period in the same manner as the monthly reports, summarizing the information
in the monthly reports for that Tracking Period, and reconciling the effect of
the applicable Minimum Revenue Guarantee.
* * * * In the event that Licensee fails to install an ATM on
or before the 30th day after the date for installation required by this
Agreement, Licensee shall pay to Licensor, as liquidated damages and not as a
penalty, the amount of $ * * * * per * * * * until the ATM is installed in the
Store. For purposes of calculating the Minimum Revenue Guarantee, each ATM
shall be assumed to be installed in a Store as of the date required for that
ATM under this Agreement. Therefore, the Minimum Revenue Guarantee shall be
unaffected by any payments made under this subsection.
* * * * Licensor's acceptance of any License Fee or report
will not be an admission of its accuracy. Licensee agrees to maintain during
the License Term and for two (2) years thereafter its records required to
establish the number and type of Transactions through each ATM during the
applicable License Term, and to allow Licensor and its designated
representatives (if any) to review or audit these records during that period,
at Licensee's office where they are kept, at reasonable times during Licensee's
business hours, and on reasonable advance notice to Licensee. Licensee shall
notify Licensor of the location of these records and of any changes in the
location. In the event that a review or audit by Licensor reveals a shortfall
in payments required to be made under this Agreement of more than 5%, Licensee
will bear the reasonable cost of the review or audit; otherwise, the review or
audit will be at Licensor's expense.
ARTICLE 4 - OPERATIONS4.1 INSTALLATION OF THE ATMS.
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(a) Promptly after the grant of the License or as
otherwise agreed, Licensee shall at its expense proceed with reasonable
diligence to install the ATM together with all communications lines necessary
for its operation and any security devices which Licensee deems desirable with
respect to the ATM. The ATM will comply with the Americans with Disabilities
Act of 1990 and other applicable law. Licensee will complete the installation
of the ATM by the date required by this Agreement, subject to acts of God and
other circumstances beyond the reasonable control of Licensee including,
without limitation, in the case of the Initial Texas Stores in Licensor's
Previous Provider's Machines are installed, the cooperation of Licensor's
Previous Provider.
(b) Licensee shall first commence installation of ATMs in
the Initial Texas Stores in which Licensor's Previous Provider's Machines are
not then installed. Commencing on February 1, 1996, Licensee shall commence
installing ATMs in the remaining Initial Texas Stores. Licensee is required to
complete installation of all ATMs in the Initial Texas Stores on or before June1, 1996, subject to the provisions of paragraph (a) above.
(c) Licensor agrees to give Licensee as much advance
notice as possible of Store openings. Licensee shall be required to install an
ATM in each Store that is opened, within 90 days after Licensee has received
this notice, but not earlier than 30 days prior to the actual Store opening
unless Licensee otherwise agrees, at the ATM Site agreed pursuant to the
License grant, subject to the provisions of paragraph (a) above.
4.2 OWNERSHIP AND ALTERATION OF ATMS. Each ATM installed in a
Store is and shall remain Licensee's property, and Licensor shall have no right
or interest therein. With Licensor's prior written consent, Licensee may from
time to time modify an ATM or replace it with another. Notwithstanding Section
7.3, if the modification or replacement would reduce the ATM's Transaction
capabilities below those agreed herein or would materially change the exterior
appearance of the ATM, Licensor may withhold its consent to the modification
or replacement in Licensor's sole discretion.
4.3 SIGNAGE AND PROMOTIONAL ACTIVITIES.
(a) The ATM will prominently bear Licensee's customary
corporate signage and graphics. Licensee shall place and maintain, at
Licensee's expense, a sign using Licensee's customary corporate graphics as
provided in Exhibit "E," on the exterior of the Store building or in another
mutually agreeable exterior location. The size and energy usage, respectively,
of the sign shall be subject to Licensor's consent if greater than those of
Licensor's Previous Provider at Licensor's Stores. The sign shall be placed in
accordance with and shall comply with all applicable deed or zoning
restrictions and requirements. Licensee may also elect from time to time, at
Licensee's expense, to place a brochure rack or similar feature on the ATM to
advertise NationsBank products, and to have NationsBank personnel present at
the Store during promotional periods to greet customers who use the ATM.
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(b) NationsBank cardholders shall be entitled to use
Licensee's ATMs at Licensor's Stores free of charge for Currently Provided
Transactions, * * * * . * * * *, Foreign (non-NationsBank) cardholders will be
charged a convenience fee * * * * per Transaction for Transactions through the
Pulse network. Subject to the foregoing sentence, Licensee will price the fees
to * * * * cardholders * * * *. * * * *, Licensee shall determine the pricing
for the Transactions specified in the first two sentences of this paragraph
(b), * * * *, but * * * *.
(c) Licensee shall provide the marketing and advertising
identified in Exhibit "D" hereto, at Licensee's cost and in accordance with the
schedule set forth in Exhibit "D."
4.4 ADDITIONAL PRODUCTS AND SERVICES. Licensee shall offer the
services provided by the Currently Provided Transactions, and may offer such
additional products and services through the ATM as the parties may mutually
agree.
4.5 OPERATION OF THE ATM. When the ATM is installed and ready for
ATM customer use, Licensee will at its expense:
(a) Maintain and service the ATM between the hours of
8:00 a.m. and 8:00 p.m. daily and use all other reasonable efforts to
ensure that the ATM will remain fully operational during hours in
which the Store is open during the License Term, subject to downtime
from necessary maintenance, equipment or network malfunction, and
other causes beyond Licensee's reasonable control; and
(b) Provide cash replenishment services for the ATM
between the hours of 7:00 a.m. to 11:00 p.m., in accordance with
Licensee's usual practices. Licensee shall bear all risk of loss of
such cash.
4.6 REMOVAL OF THE ATM. Upon termination of a License for any
reason, Licensee shall at * * * * expense remove the ATM subject to the License
from the ATM Site, but Licensee shall not be required to remove them at a rate
exceeding * * * * ATMs per business day and during this transition period all
terms and conditions of this Agreement shall continue to apply to the ATM's to
be removed except the exclusivity provisions (if the License is terminated by
the termination of the Agreement) and the Minimum Revenue Guarantee. Licensor
will notify Licensee of a Store closing at the time that the closing is
publicly announced, but in all events at least 7 days before the actual
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closing, and will give Licensee up to fourteen (14) days after the actual
closing to remove the ATM from the Store. The previous sentence
notwithstanding, provided Licensor has given Licensee 30 days' notice, Licensor
agrees that the time for removal of the ATM will include the time reasonably
necessary for Licensee to comply with any statutory or regulatory requirements
that prior notice be given of the removal of the ATM. Licensee will notify
Licensor of any changes in these notice periods. Additionally, Licensee will,
at Licensee's expense, move the ATM to another agreed ATM Site at the Store to
accommodate remodeling the Store or temporarily remove the ATM from the Store,
if requested by Licensor as a result of the remodeling, provided that Licensor
gives Licensee at least 30 days' prior notice of the proposed remodeling.
4.7 LICENSOR'S OBLIGATIONS. Commencing with the installation of
the ATM, Licensor will:
(a) Maintain, at its expense, the ATM Site and its
surrounding area and lighting in good order and condition.
Maintenance and repair of the ATM itself shall be Licensee's
responsibility; and
(b) Provide an adequate electrical power source at the
ATM Site for the ATM, and pay all charges for electricity used by the
ATM and by all of Licensee's signs at the Store.
ARTICLE 5 - TERMINATION RIGHTS
5.1 BY EITHER PARTY. Any one of the following will constitute an
Event of Default:
(a) Failure on the part of either party to observe or
perform in any material respect any of the covenants in this License,
which failure continues unremedied for a period of sixty (60) days
after the date on which written notice of the failure, requiring the
same to be remedied, has been given to the defaulting party (subject
to a reasonable extension, in any case other than failure to pay
money, of up to sixty (60) additional days where the failure was due
to act of God or other cause beyond the control of the party, and the
party has so notified the other party with an estimate of the time
required to perform);
(b) A decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for
the winding up or liquidation of its affairs, has been entered against
either party if the decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(c) Either party has consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets
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and liabilities or similar proceedings of or relating to that party
or of or relating to all or substantially all of that party's
property; or
(d) Either party has admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations.
In each and every such case, so long as an Event of Default shall not have been
remedied, the non-defaulting party shall have the right (i) for an Event of
Default under paragraph (a) above, to terminate this License for the specific
ATM Site by notice to the defaulting party, or with respect to an Event of
Default which is a payment default, terminate this Agreement and all Licenses
by notice to the defaulting party; and (ii) for an Event of Default under
paragraphs (b), (c) or (d) above, to terminate this Agreement and all Licenses
by notice to the defaulting party.
5.2 BY LICENSOR. Licensor may terminate this License for th
specific ATM Site:
(a) upon not less than seven (7) days advance notice to
Licensee, if Licensor permanently closes the Store (subject to the
provision regarding Licensee's time period for removal of the ATM as
set forth in Section 4.6); or
(b) by notice to Licensee within thirty (30) days after
damage to the Store of such extent that Licensor has decided to close
the Store permanently rather than to restore it.
5.3 BY LICENSEE. Licensee may terminate this License for the
specific ATM Site:
(a) by notice to Licensor within 180 days after Licensee
receives notice that Licensor has sold or transferred the Store to a third
party, except a sale involving an assignment of this Agreement in accordance
with Section 6.1; or
(b) by at least 30 days' advance notice to Licensor
following a casualty or condemnation affecting the Store to such an extent that
a significant reduction in use of the ATM for more than 120 days may reasonably
be expected.
5.4 EFFECT OF TERMINATION. The indemnity obligations set forth in
Articles 2, 5 and 7 shall survive the termination, and any liability or
obligation which arose before the termination shall (to the extent not fully
performed) survive the termination.
5.5 ADDITIONAL REMEDIES. A party's right to terminate this
Agreement or a License upon an Event of Default shall be in addition to all
other rights and remedies that the party may have in law or in equity. A party
may elect to pursue its other remedies without terminating a License or this
Agreement.
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ARTICLE 6 - CASUALTY AND INSURANCE
6.1 CASUALTY DAMAGE. Neither Licensor nor Licensee shall be
obligated to insure the ATM Site for property loss or damage or any property of
Licensor or Licensee at the ATM Site.
6.2 WAIVER OF RECOVERY.
(a) Anything in this Agreement to the contrary
notwithstanding, except as provided in Section 6.2(b) below, Licensor and
Licensee severally waive any claim in its favor against the other or any member
of the other's "Group," as defined below (REGARDLESS OF CAUSE INCLUDING
NEGLIGENCE OF THE OTHER OR ITS AGENTS OR EMPLOYEES, AND STRICT LIABILITY OF ANY
KIND) for loss or damage to any of its or any member of its Group's property
located in or constituting a part of the Store or the ATM Site, by reason of
fire or the elements, or any other cause, whether or not insurable, regardless
of the amount of the proceeds, if any, payable under such insurance. EXCEPT AS
PROVIDED IN SECTION 6.2(b) BELOW, EACH PARTY EXPRESSLY RELEASES THE OTHER PARTY AND THE MEMBERS OF THE OTHER PARTY'S GROUP FROM ANY CLAIM OF LOSS OR DAMAGE TO ITS OR ITS GROUP'S PROPERTY ARISING OUT OF THE OTHER PARTY'S OR A MEMBER OF THAT PARTY'S GROUP'S NEGLIGENCE.
(B) Section 6.2(a) does not release a party's unaffiliated
independent contractors or subcontractors from claims based on negligence or
strict liability.
6.3 INDEMNIFICATION AND HOLD HARMLESS
(a) The following are defined terms used in this Article. These
terms are used for the convenience of the parties in allocating certain risks
and do not mean that the parties have admitted or determined the legal status
of persons on Store premises under applicable law.
* * * *
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"Licensee Group" will be comprised of the directors, officers,
employees, servants, agents, contractors, subcontractors, independent
contractors and representatives of Licensee and its affiliated companies. A
member of the Licensor Group shall not be deemed to be a member of the Licensee
Group as a result of this Agreement or any related contract.
* * * *
"Licensor Group" will be comprised of the directors, officers,
employees, servants, agents, contractors, subcontractors, independent
contractors and representatives of Licensor and its affiliated companies. A
member of the Licensee Group shall not be deemed to be a member of the Licensor
Group as a result of this Agreement or any related contract.
"Licensee Indemnified Claims" means all claims, demands, causes of
action, losses, and damages of every kind and character, without limitation,
including all judgments flowing from, settlements of, and expenses of
litigation, and attorney's fees arising from or on account of (i) * * * *
and/or (ii) * * * *.
* * * *
"Licensor Indemnified Claims" means all claims, demands, causes of
action, losses, and damages of every kind and character, without limitation,
including all judgments flowing from, settlements of, and expenses of
litigation, and attorney's fees arising from or on account of * * * *, EXCEPT
FOR AND EXCLUDING * * * *.
15
"Group" refers to the Licensee Group or the Licensor Group, as the
context indicates.
"* * * * Claims" means all claims, demands, causes of action, losses,
and damages of every kind and character, without limitation, including all
judgments flowing from, settlements of, and expenses of litigation, and
attorney's fees arising from or on account of * * * *, EXCEPT FOR AND EXCLUDING
* * * *.
(b) Licensee agrees to and shall defend, indemnify and hold each
member of the Licensor Group harmless from and against all Licensee Indemnified
Claims * * * *. THIS INDEMNITY IS EXPRESSLY INTENDED TO RELEASE AND INDEMNIFY
LICENSOR AND THE OTHER MEMBERS OF THE LICENSOR GROUP FROM AND AGAINST ANY LICENSEE INDEMNIFIED CLAIMS * * * * ARISING OR ALLEGED TO ARISE IN WHOLE OR IN
PART FROM * * * *. If however, a court determines in a final nonappealable
judgment that * * * *, Licensee does not release and assumes no such liability
to Licensor or any member of the Licensor Group.
(c) Licensor agrees to and shall defend, indemnify and hold each
member of the Licensee Group harmless from and against all Licensor Indemnified
Claims * * * *. THIS INDEMNITY IS EXPRESSLY INTENDED TO RELEASE AND INDEMNIFY
LICENSEE AND THE OTHER MEMBERS OF THE LICENSEE GROUP FROM AND AGAINST ANY
LICENSOR INDEMNIFIED CLAIMS * * * *. If, however, a court determines in a
final nonappealable judgment that * * * *, Licensor does not release and
assumes no such liability to Licensee or any member of the Licensee Group.
(d) Each party shall notify the other promptly of any claim for
indemnity under this Article. The indemnifying party shall have the right to
control any lawsuit or other proceeding and the right to settle any indemnified
claim. Any such claim will not be settled without the consent of the
indemnified party, whose consent shall not be unreasonably withheld. The
indemnified party shall have the right to participate in the defense of any
such claim with legal counsel of its own choice at its own expense.
(e) In the event that a party fails or refuses to undertake the
defense of a claim for which that party has an indemnity obligation under this
Article, the other party may
16
elect to defend any lawsuit or other proceeding resulting from the claim and
may settle any such claim, without waiving its right to be indemnified under
this Article.
6.4 LIABILITY INSURANCE. Each party is responsible for its own
insurance of its own choosing and may be self-insured.
ARTICLE 7 - MISCELLANEOUS
7.1 SUCCESSORS. This Agreement shall be binding upon and inure to
the benefit of Licensor and Licensee and their respective heirs, personal
representatives, successors and assigns. However, except as provided in this
Section 7.1, (i) neither party may assign its rights and duties under this
Agreement or any License without the prior written consent of the other party
and (ii) no assignment (whether or not consented to) shall release the
assignor from any obligation or liability under this Agreement or any License
unless otherwise specifically agreed. Notwithstanding the foregoing, either
party shall assign its rights and obligations under this Agreement to a
successor to all or substantially all of its business in Texas, whether the
successor has acquired this business by sale, merger, consolidation, or
otherwise.
7.2 NOTICES. Whenever this Agreement requires or permits any
consent, approval, notice, request or demand from one party to the other
(collectively, "Notice"), unless otherwise specified such Notice must be in
writing to be effective and shall be effective on the date of actual receipt of
such Notice by the addressee or when the attempted initial delivery is refused
or when it cannot be made because of a change of address of which the sending
party has not been notified. Each party's address for delivery of any Notice
shall be as set forth below its signature on this Agreement, or such other
address within the continental United States as that party may designate by
Notice to the other. Notices given by facsimile transmission or other
means of electronic communication shall be effective upon receipt, provided
that a confirmation copy is promptly mailed by certified mail, returned receipt
requested, or hand delivered.
7.3 REASONABLE ACTIONS. Each party shall act reasonably and
promptly in connection with giving or withholding any consent, approval or
similar action under this Agreement.
7.4 COMMISSIONS. Except for obligations of a party under a
commission agreement, Licensor and Licensee hereby indemnify and hold each
other harmless against any loss, claim, expense or liability with respect to
any commissions or brokerage fees claimed on account of the execution and/or
renewal of this License due to any action of the indemnifying party.
7.5 NEGATION OF LIEN FOR RENT. Licensor hereby waives all liens
and security interests for rent arising by statute or otherwise by operation of
law (except for any
17
judgment lien that may hereafter arise in favor of Licensor) against property
of Licensee now or hereafter placed in the ATM Site or the Store.
7.6 REMOVAL OF EXISTING ATMS. Licensor will to the extent of
Licensor's rights permit Licensee to control the removal of the Previous
Provider's Machines from Licensor's Stores. * * * *
7.7 APPLICABLE LAW. This Agreement shall be governed by Texas
law and applicable United States federal law.
7.8 CONFIDENTIALITY. (a) Licensor and Licensee agree to hold
confidential this Agreement, subject to paragraph (c) below. Neither party
shall issue a publicity or press release regarding its contractual relations
with the other party concerning this Agreement and will refrain from making any
reference to this Agreement or to the other party in the solicitation of
business, or in conducting business, without obtaining the other party's prior
written consent to such action.
(b) In the performance of this Agreement, each party may be
exposed to proprietary or confidential information or trade secrets of the
other party identified as such by the other party. No party may disclose or
use any such confidential information or trade secrets without, in each
instance, obtaining the express prior written consent of the owner thereof
except as provided in paragraph (c) below. Confidential information will
include the financial reports and records related to transactions through the
ATMs.
(c) Notwithstanding paragraphs (a) and (b) above, a party shall
not be prohibited from disclosing this Agreement or any such confidential
information (i) to its employees, auditors or attorneys, financial consultants,
or other consultants who need to know it and who are directed by the party to
comply with this confidentiality agreement, (ii) to the extent that disclosure
is required by regulatory requirement or judicial or administrative process or
other requirement of law, (iii) in connection with any action or proceeding to
enforce or interpret this Agreement or any provision hereof, (iv) to the extent
that the information is in the public domain through no fault of the party's,
or (v) to the extent otherwise permitted by this Agreement.
7.9 ENTIRE AGREEMENT; EXHIBITS. This Agreement is the entire
agreement of the parties regarding its subject matter, and may not be changed
or amended except by an instrument in writing signed by Licensor and Licensee.
The following exhibits are attached hereto and incorporated into this Agreement
by this reference:
EXHIBIT "A" - The First Supplement
18
EXHIBIT "B" - Market Areas
EXHIBIT "C" - Initial List of Community Market Stores
EXHIBIT "D" - Marketing/Advertising
EXHIBIT "E" - Licensee Signage
The parties are signing this Agreement as of August 31, 1995, to be
effective on the Effective Date as provided in Section 1.4.
LICENSOR: LICENSEE: NATIONAL CONVENIENCE STORES NATIONSBANK OF TEXAS, N.A. INCORPORATED
By: /s/ ARNOLD VAN ZANTEN By: /s/ ROB JOHNSTON
--------------------------------- -------------------------
Name: Arnold Van Zanten Name: Rob Johnston
Title: Senior Vice President of Administration Title: VP of Banking
Center Development
Licensor's Address for Notices: Licensee's Address for
Notices:
National Convenience Stores Incorporated NationsBank of Texas, N.A.
P.O. Box 758 Banking Center Development
100 Waugh Drive 901 Main Street, Eleventh
Houston, Texas77007-5827 Floor
Dallas, Texas75202
Attention: Mr. Arnold Van Zanten, Senior Attention: Rob Johnston, Vice
Vice President of President
Administration Facsimile Number:
(214) 508-0337
With Copy to: Mr. A. J. Gallerano
Senior Vice President Legal
Facsimile Number: (713) 880-0579
19
Exhibit "A"
The First Supplement
[Enlarge/Download Table]
Count Store Address City ST ZIP Key Map Phone ATM
506 495 103 BANDERA SAN ANTONIO TX 78228 2107326170 507 520 3945 EISENHAUER SAN ANTONIO TX 78217 2106561373 508 556 5935 RITTIMAN SAN ANTONIO TX 78218 2106546375 509 559 6735 MEDINA BASE RD SAN ANTONIO TX 78242 2106731049 510 566 2523 OAKGATE SAN ANTONIO TX 78230 2106969811 511 619 2400 THOUSAND OAKS SAN ANTONIO TX 78232 2104901590 A202-4952
512 620 707 FRIO CITY RD SAN ANTONIO TX 78207 2102231276 513 621 1303 CALLAGHAN SAN ANTONIO TX 78228 2106846155 514 667 1763 S. GEN MCMULLEN SAN ANTONIO TX 78228 2104324225 515 726 2409 NW 36TH ST SAN ANTONIO TX 78228 2104323050 516 765 1902 RIGSBY SAN ANTONIO TX 78210 2103336556 517 776 2001 BROADWAY SAN ANTONIO TX 78215 2102299811 518 816 17750 JUDSON SAN ANTONIO TX 78247 2106370848 519 919 1302 GARDINA SAN ANTONIO TX 78201 2107329451 520 920 10008 BROADWAY SAN ANTONIO TX 78217 2108227370 521 953 7203 BLANCO SAN ANTONIO TX 78216 2103405562 A202-4941
522 1009 841 BITTERS SAN ANTONIO TX 78216 2104948425 A202-4938
523 1011 7802 CALLAGHAN RD SAN ANTONIO TX 78229 2103425064 A202-4942
524 1046 6543 CALLAGHAN SAN ANTONIO TX 78229 2106144597 525 1074 7526 BANDERA SAN ANTONIO TX 78228 2106473992 526 1085 900 W. HILDEBRAND SAN ANTONIO TX 78201 2107328017 527 1103 12011 WEST AVE SAN ANTONIO TX 78216 2103419180 528 1139 2562 JACKSON KELLER SAN ANTONIO TX 78230 2103415268 529 1147 506 AUSTIN HWY SAN ANTONIO TX 78209 2108227486 530 1155 6480 BABCOCK SAN ANTONIO TX 78238 2106978059 A202-4945
531 1174 12070 BLANCO SAN ANTONIO TX 78216 2103423190 532 1184 5050 SW MILITARY DR SAN ANTONIO TX 78242 2106751030 A202-4943
533 1189 5980 PEARSALL RD SAN ANTONIO TX 78242 2106234490 534 1305 8011 MIDCROWN SAN ANTONIO TX 78218 2106539498 535 1318 4070 PERRIN CENTRAL SAN ANTONIO TX 78230 2106547652 A202-4950
536 1386 5494 BABCOCK RD SAN ANTONIO TX 78240 2106910128 537 1411 3943 THOUSAND OAKS SAN ANTONIO TX 78217 2106539641 538 1426 2444 BABCOCK SAN ANTONIO TX 78229 2106145038 539 1427 8309 BANDERA SAN ANTONIO TX 78228 2106840760 540 1436 8303 MCCULLOUGH SAN ANTONIO TX 78216 2103491391 541 1467 9022 MARBACH RD SAN ANTONIO TX 78245 2106744120 542 1468 3003 BROADWAY SAN ANTONIO TX 78209 2108283867 A202-4944
543 1505 7979 FREDERICKSBURG SAN ANTONIO TX 78229 2106142949 A202-4946
544 1516 5775 RAY ELLISON DR SAN ANTONIO TX 78242 2106730880
Page 14
Exhibit "A"
The First Supplement
[Enlarge/Download Table]
Count Store Address City ST ZIP Key Map Phone ATM
545 1520 303 S. SANTA ROSA BLVD SAN ANTONIO TX 78207 2102275125 546 1522 4251 PLEASANTON SAN ANTONIO TX 78221 2109230074 547 1530 4739 RAYBON SAN ANTONIO TX 78213 2106551244 548 1532 9126 PERRIN BEITEL SAN ANTONIO TX 78217 2106550498 549 1533 8511 STARCREST SAN ANTONIO TX 78217 2106551140 550 1542 2023 MCCULLOUGH SAN ANTONIO TX 78212 2107329959 551 1549 8748 WURZBACH SAN ANTONIO TX 78240 2106143709 552 1553 14103 BLANCO RD SAN ANTONIO TX 78284 2104926475 553 1554 10393 SAHARA SAN ANTONIO TX 78216 2103444380 554 1561 9200 BROADWAY SAN ANTONIO TX 78217 2108229440 555 1564 11050 US HWY 181 S SAN ANTONIO TX 78221 2106332649 556 1569 11606 PARLIAMENT SAN ANTONIO TX 78213 2103447150 A202-4948
557 1574 1743 FREDERICKSBURG SAN ANTONIO TX 78201 2107358760 558 1580 3098 E. COMMERCE SAN ANTONIO TX 78220 2102267413 559 1581 5439 EVERS RD SAN ANTONIO TX 78238 2106801210 A202-4947
560 1583 11050 IH 35 NORTH SAN ANTONIO TX 78233 2106535042 561 1586 606 OLD HWY 90 W SAN ANTONIO TX 78237 2104323289 562 1600 3151 S. WW WHITE RD SAN ANTONIO TX 78222 2103332201 563 1601 3603 S.E. MILITARY DR SAN ANTONIO TX 78223 2103332423 564 1626 2903 E. SOUTHCROSS SAN ANTONIO TX 78223 2105323025 565 1644 4698 SEGUIN RD SAN ANTONIO TX 78219 2106612224 566 1806 1115 SAN PEDRO AVE SAN ANTONIO TX 78212 2102299442 A202-4954
567 1900 11902 STARCREST DR SAN ANTONIO TX 78247 2104944529 568 2001 3003 GOLIAD SAN ANTONIO TX 78223 2103332438 569 2086 5811 SAN PEDRO AVE SAN ANTONIO TX 78212 2107328546 570 2113 9685 MARBACH ROAD SAN ANTONIO TX 78245 2106744721 571 2115 9350 FARM ROAD 471 WEST SAN ANTONIO TX 78251 2105217333 572 2327 1203 AUSTIN HIGHWAY SAN ANTONIO TX 78209 2108267728 573 2358 8214 CULEBRA SAN ANTONIO TX 78251 2105235111 574 2377 9865 POTRANCO SAN ANTONIO TX 78251 2106806666 575 3201 2347 VANCE JACKSON @ MINK SAN ANTONIO TX 78213 2103413500 A202-4735
576 3203 382 VALLEY HI @ SPRINGVALE SAN ANTONIO TX 78227 2106740630 577 3206 1822 CINCINATI @ WILSON SAN ANTONIO TX 78201 2107329060 578 3207 4214 BRIARGLEN @ PERRIN-BIETEL SAN ANTONIO TX 78218 2106566427 A202-4710
579 3210 202 S TRINITY ST @ BUENA VISTA SAN ANTONIO TX 78207 2102231196 580 3211 7714 ZARZAMORA SAN ANTONIO TX 78224 2109238947 581 3212 619 W MALONE @ THEO @ I-35 SAN ANTONIO TX 78225 2105328493 582 3214 571 ELEANOR @ NEW BRAUNFELS SAN ANTONIO TX 78209 2108269509 583 3217 1538 BROADWAY @ NACOGDOCHES SAN ANTONIO TX 78209 2108285385
Page 15
Exhibit "A"
The First Supplement
[Enlarge/Download Table]
Count Store Address City ST ZIP Key Map Phone ATM
584 3221 3440 ST MARY'S @ MULBERRY ST SAN ANTONIO TX 78212 2107338977 A202-4687
585 3222 533 HACKBERRY @ NEVADA SAN ANTONIO TX 78203 2105337047 586 3224 531 ISOM RD SAN ANTONIO TX 78216 2103424759 A202-4706
587 3226 3119 COMMERCIAL SAN ANTONIO TX 78221 2109248904 588 3227 451 HOT WELLS SAN ANTONIO TX 78223 2105331091 589 3229 11930 VANCE JACKSON SAN ANTONIO TX 78230 2106990312 A202-4749
590 3230 2908 S NEW BRAUNFELS @ STEVES SAN ANTONIO TX 78210 2105337046 591 3231 4712 SAN PEDRO @ CLOWER SAN ANTONIO TX 78212 2108261973 592 3234 5108 RANDOLPH BLVD @ CRESTWAY SAN ANTONIO TX 78233 2106538553 A202-4711
593 3235 1439 SOUTHCROSS @ HACKBERRY SAN ANTONIO TX 78223 2105321093 594 3238 3643 SW MILITARY @ BYNUM SAN ANTONIO TX 78211 2109249231 595 3239 15184 JUDSON RD @ STAHL SAN ANTONIO TX 78247 2106539398 A202-4716
596 3241 4069 MEDICAL DR @ FAIRHAVEN DR SAN ANTONIO TX 78229 2106921102 A202-4748
597 3242 BLANCO @ JACKSON-KELLER SAN ANTONIO TX 78216 2103401663 A202-4736
598 3244 15311 O'CONNOR @ STAHL SAN ANTONIO TX 78247 2106548425 599 3246 ULIBEAU @ OLD TEZEL SAN ANTONIO TX 78250 2106809593 A202-4745
600 3247 3216 SW MILITARY @ SOMERSET SAN ANTONIO TX 78221 2109232468 601 3248 2448 HARRY WURZBACK @ CORINNE SAN ANTONIO TX 78209 2108284486 A202-4709
602 3249 7103 W MARTIN @ ZARZAMORA SAN ANTONIO TX 78207 2104322602 603 3250 12201 TOEPPERWEIN RD @ WILDERNESS SAN ANTONIO TX 78233 2105908442 604 3251 SWC ROOSEVELT @ SOUTHCROSS SAN ANTONIO TX 78214 2105344188 A202-4697
605 3252 107 BABCOCK @ FREDERICKSBURG RD SAN ANTONIO TX 78201 2107321290 606 3253 5524 SW MILITARY @ FIVE PALMS SAN ANTONIO TX 78242 2106743590 A202-4729
607 3256 6067 DEZAVALA RD @ AUTUMN VISTA SAN ANTONIO TX 78249 2106967496 608 3257 8565 BABCOCK RD @ SUNSET HAVEN SAN ANTONIO TX 78249 2106908644 A202-4752
609 3258 12303 WETMORE RD @ RIDGE COUNTRY SAN ANTONIO TX 78247 2104946164 A202-4718
610 3261 8318 JONES-MALTSBERGER @ CHULIE SAN ANTONIO TX 78216 2103424909 A202-4707
611 3263 5214 CALLAGHAN RD @ BANDERA RD SAN ANTONIO TX 78228 2104320136 A202-4334
612 3265 7575 CULEBRA RD @ INGRAM SAN ANTONIO TX 78251 2105209646 613 3266 FM 78 @ RITTIMAN RD SAN ANTONIO TX 78218 2106619655 614 3268 17030 NEW BRAUNFELS @ I-35 SAN ANTONIO TX 78208 2102235503 615 3269 WALZEN RD @ GIBBS SPRAWL SAN ANTONIO TX 78219 2106370208 616 3270 12802 JONES MALTBERGER @ BUDDING SAN ANTONIO TX 78247 2104962873 617 3274 1503 MILITARY @ COMMERCIAL SAN ANTONIO TX 78221 2109246655 618 3275 5411 GRISSOM @ TIMBERHILL SAN ANTONIO TX 78238 2106478743 A202-4820
619 3277 8108 FREDERICKSBURG @ DATA POINT SAN ANTONIO TX 78229 2106143714 A202-4855
620 3608 13405 HWY 6 AVE @ AVE T SANTA FE TX 77510 4099251023 621 213 17599 IH-35 NORTH SCHERTZ TX 78154 2106519536 622 2858 1802 SECOND STREET SEABROOK TX 77586 7134745658
Page 16
EXHIBIT "B"SPECIFIED MARKET AREAS
Bexar County
Collin County
Comal County
Dallas County
Denton County
Fort Bend County
Galveston County
Harris County
Hays County
Montgomery County
Tarrant County
Travis County
Williamson County
