Does Sunoco have the right to transfer or assign its rights or obligations under the Aplus Franchise Agreement?
Aplus Franchise · 2024 FDDAnswer from 2024 FDD Document
r removal of goods. The purpose and intent of the foregoing provision is that all of your goods, whether on the Premises or elsewhere, shall be liable to distress for payment of rent. You further hereby waive in favor of Sunoco all rights of tenants that may be waived, including all exemptions, notices, rights of replevin, appraisal, appeal, and stay of execution. Upon distress, Sunoco shall have the right to remove from the Premises all goods so levied upon. You further hereby agree that Sunoco shall have the right to follow goods fraudulently removed from the Premises, and that Sunoco shall have the right to sell any goods distrained for fees at any time within five (5) days after distrain.
1.32 Assignment, Subletting, and Successor-in Interest
Assignment and Subletting
- (A) This Lease shall not be assigned in whole or in part by you nor shall your interest in the Premises or Loaned Equipment be assigned in whole or in part, either voluntarily or by operation of law, except with Sunoco's prior written consent. This Lease shall not be sublet in whole or in part by you nor shall your interest in the Premises or Loaned Equipment be sublet in whole or in part, either voluntarily or by operation of law. Any assignment or attempt to assign without Sunoco's prior written consent or any subletting or attempt to sublet shall result in immediate termination of your interest in and to this Lease, the Premises, and Loaned Equipment.
- (B) For purposes of this Section, reference to "Franchisee" or "Lessee" shall mean you, if you are a sole proprietor; if a partnership, all partners; if a corporation with two shareholders, both shareholders; or if a corporation with more than two shareholders, the majority shareholder named in Part 1 of this Lease. That person must be an officer or director as well as a majority shareholder.
- (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.
Source: Item 23 — RECEIPT (FDD pages 68–302)
What This Means (2024 FDD)
Based on the 2024 Aplus Franchise Disclosure Document, the franchisee cannot assign the lease without Sunoco's prior written consent. If the Aplus Franchise Agreement is terminated or not in effect, the franchisee must first offer to transfer 100% of the rights in the premises to Sunoco in writing, including a stated price and terms. Sunoco has 60 days (excluding federal and state holidays) to accept the offer.
If Sunoco declines or does not accept the offer within 60 days, the franchisee may then transfer the lease to a third party, but only if Sunoco gives prior written consent and the terms are not more favorable than those offered to Sunoco. If the lease is not transferred within three months of being offered to Sunoco, the franchisee must re-offer it to Sunoco before transferring it to a third party.
Sunoco may withhold consent to a proposed assignment if its current requirements are not satisfied, including the payment of transfer fees. Sunoco reserves the right to refuse consent to any transfer that would materially increase its risk or burden. The franchisee is responsible for providing Sunoco with at least 60 days' prior written notice of their intent to assign the lease, or longer if required by state law. Sunoco will not be liable for any losses caused to the franchisee due to disapproval or conditional approval of an assignment.