If the Aplus Franchise Agreement is terminated but the lease is still in effect, what must the franchisee do before transferring the lease?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
(C) If the APlus Franchise Agreement between you and Sunoco is terminated or not in effect for any reason, but this Lease is still in effect, you may not transfer or assign this Lease without first offering to transfer or assign one hundred percent (100%) of the rights in the Premises to Sunoco, in writing signed by you, at a stated price and stated terms.
(D) Sunoco may accept in writing at any time within sixty (60) days (excluding federal and state holidays) from receipt of the written offer by agreeing to purchase one hundred percent (100%) of the rights in the Premises and to pay the stated price on the stated terms, less the amount of the transfer fee that is payable to Sunoco in the event of an assignment.
The offer must be received in the appropriate Division Office.
(E) If Sunoco declines or does not accept the written offer within sixty (60) days, you may thereafter transfer or assign this Lease to a third party if Sunoco gives its prior written consent, but not at a lower price or on more favorable terms than had been stated and offered to Sunoco in writing.
(F) If the Lease is not transferred or assigned within three (3) months from the date it was offered to Sunoco, then you must re-offer to transfer or assign it to Sunoco before transfer or assignment to a third party.
(G) In any event, you may not assign this Lease without the prior written consent of Sunoco.
(H) If you desire to assign this Lease, you shall provide Sunoco with not less than sixty (60) days prior written notice of your intent to assign this Lease, or such longer notice as Sunoco is entitled to receive under applicable state law.
If Sunoco refuses consent, the terms of the first Section of this Section 2.22 shall apply.
Sunoco may withhold its consent to a proposed assignment if Sunoco's then-current requirements are not satisfied.
Such requirements may include the requirement that a transfer fee or other fees be paid.
- (I) SUNOCO RESERVES THE RIGHT TO REFUSE TO CONSENT TO ANY PROPOSED TRANSFER OR ASSIGNMENT THAT WOULD RESULT IN SUNOCO HAVING ANY MATERIAL INCREASED RISK, BURDEN, OR CHANCE OF NOT OBTAINING PERFORMANCE.
SUNOCO SHALL NOT BE HELD LIABLE FOR ANY LOSSES CAUSED TO YOU DUE TO DISAPPROVAL OR CONDITIONAL APPROVAL.
- (J) If you assign this Lease in connection with an assignment of the APlus Franchise Agreement, you shall comply with the provisions of the APlus Franchise Agreement regarding assignment.
Compliance with such provisions shall be deemed to satisfy the requirements of this Section, notwithstanding any provisions of this Lease to the contrary.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
According to Aplus's 2024 Franchise Disclosure Document, if the Aplus Franchise Agreement is terminated or not in effect for any reason, but the lease is still in effect, the franchisee must first offer to transfer or assign 100% of the rights in the premises to Sunoco (the franchisor), in writing, at a stated price and terms. This offer must be sent to the appropriate Division Office.
Sunoco has 60 days (excluding federal and state holidays) from receipt of the written offer to accept it in writing, agreeing to purchase 100% of the rights in the premises and pay the stated price on the stated terms, less any transfer fee payable to Sunoco in the event of an assignment. If Sunoco declines or does not accept the offer within this 60-day period, the franchisee may then transfer or assign the lease to a third party, but only if Sunoco provides prior written consent. The price and terms of the transfer to the third party cannot be more favorable than those initially offered to Sunoco.
If the lease is not transferred or assigned within three months from the date it was offered to Sunoco, the franchisee must re-offer the lease to Sunoco before transferring or assigning it to a third party. In any event, the franchisee cannot assign the lease without Sunoco's prior written consent. The franchisee must provide Sunoco with at least 60 days prior written notice of their intent to assign the lease, or such longer notice as Sunoco is entitled to receive under applicable state law. Sunoco may withhold consent if its then-current requirements are not satisfied, including the payment of a transfer fee or other fees. Sunoco reserves the right to refuse consent to any proposed transfer or assignment that would result in Sunoco having any materially increased risk, burden, or chance of not obtaining performance, and Sunoco is not liable for any losses caused to the franchisee due to disapproval or conditional approval.
If the lease assignment is connected to an Aplus Franchise Agreement assignment, compliance with the Aplus Franchise Agreement provisions regarding assignment will satisfy these lease assignment requirements, notwithstanding any contrary provisions in the lease.