Is Big O Tires obligated to provide site selection assistance to the franchisee?

E

• 7.01 Pre-Opening Assistance. Prior to Franchisee's Commencement Date, Big O shall provide Franchisee with the following assistance to the extent and as determined by Big O from time to time in its sole discretion:
• (a) Assistance to Franchisee related to approval of a site for the Store, although Franchisee acknowledges that Big O shall have no obligation to select or acquire a site on behalf of Franchisee. Big O's assistance will consist of providing criteria for a satisfactory site, an on-site inspection and determination of whether a proposed site fulfills the requisite criteria, prior to formal approval of a site selected by Franchisee. At Big O's option, Big O may, without fee or expense to Franchisee, review the proposed Store lease. The final decision about whether to acquire a given approved site or whether to execute any particular lease shall be the sole decision of Franchisee. Big O disclaims all liability for the consequences of approving a given site. Big O's participation in site selection in no way is meant to constitute a warranty or guaranty that the Franchised Business will be profitable or otherwise successful. Big O's written approval of the Premises and Store must be obtained by

Franchisee before the Store may be opened or relocated. Big O may condition its approval of a Store lease upon Franchisee's execution of a conditional lease assignment in a form, which is the same as, or similar to the one found on Schedule 4. If Franchisee has been a Big O franchisee for ten years or less and if Franchisee or any of Franchisee's owners (if Franchisee is a business entity or trust) owns an interest in the real estate on which the Store is located, owns an interest in an entity that owns the real estate (including an entity such as a trust of which the Franchisee is a beneficiary), or if such real estate is owned by an immediate family member of such person, Big O may require Franchisee to enter into an Option and Store Lease with Big O or its affiliate in the then-current form in use by Big O or its affiliate in the then-current form in use by Big O, which would give Big O or its affiliate the right to lease the Premises in the event this Agreement is terminated or expires, if Big O or its affiliate chooses to exercise such option. If Franchisee has been a Big O franchisee (or owned more than 50% of the Franchisee Entity) for more than ten years and is leasing the site upon which the Store is located from any of Franchisee's owners (if Franchisee is a business entity or trust), or an entity that is owned, in whole or in part, by Franchisee or any of Franchisee's owners, or an immediate family member of Franchisee, Franchisee will have the option to sign a modified form of lease assignment which is attached as Schedule 5 to the Franchise Agreement (instead of the Option and Store Lease). A Memorandum of Lease Option or a Memorandum of Lease Rider and Modification may be recorded or filed by Big O or its affiliate in the event an Option and Store Lease is required.

Source: Item 23 — RECEIPTS (FDD pages 102–535)