EXHIBIT 10.3
TRADEMARK
LICENSE AGREEMENT
This Trademark License Agreement ("License Agreement"), effective as
of the 31st day of July, 2000, by and between FINAMARK, INC., and ATOFINA
PETROCHEMICALS, INC., both Delaware corporations, having offices at World
Houston Plaza, 00000 XXX Xxxx., Xxxxxxx, Xxxxx 00000 XXX (hereinafter
collectively referred to as "Licensor"), and SWBU, L.P., a Delaware Limited
Partnership, having offices at 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxx 00000-0000
(hereinafter referred to as "Licensee").
RECITALS
WHEREAS, the ownership of all of the general and limited partnership
interests of Licensee have been purchased by Alon U.S. General Partner, L.L.C.
and Alon USA Limited Partner, L.L.C. (the "Alon Partners") from ATOFINA
Petrochemicals, Inc., pursuant to an LP Interest Purchase Agreement dated July
31, 2000, between ATOFINA Petrochemicals, Inc., and Sigma Coatings, Inc., and
the Alon Partners (the "LP Interest Agreement"); and,
WHEREAS, Licensee has pursuant to the closing of the LP Interest
Agreement, acquired ownership of the Partnership Business as defined in the LP
Interest Agreement ("Partnership Business") previously operated by Licensor;
and,
WHEREAS, Licensor owns the federally registered trademarks as set
forth in the attached Exhibit "A" (the "Licensed Marks"); which marks are used
by Licensor more particularly in connection with its motor fuel sales and sales
of other products, throughout the United States as well as abroad; and,
WHEREAS, Licensor has achieved public acceptance of and a favorable
reputation and good will throughout the United States and abroad for the
Licensed Marks; and,
WHEREAS, In connection with the acquisition of all of the Partnership
Business, and its future operation and development, Licensee is desirous of
acquiring from Licensor the following rights and interests: (i) an exclusive
License to use the Licensed Marks in connection with Licensee's manufacture
and sale (including for resale by distributors) of certain petroleum products
(the "Licensed Products"), namely gasoline, kerosene, diesel, and aircraft
fuels, (the "Exclusive Licensed Products"), in the Exclusive Licensed
Territory, as described in the attached Exhibit "B" (the "Exclusive Licensed
Territory"); (ii) an exclusive license to use the Licensed Marks in conjunction
with the manufacture and sale of asphalt in the Exclusive Licensed Territory,
and in Montana, Idaho, Wyoming, Nevada, North Dakota and South Dakota, such
exclusivity to extend for as long as Licensee retains an exclusive license
pursuant to the terms of an Asphalt Technology License Agreement of even date
between Licensor and ATOFINA Petrochemicals, Inc., herewith (the "Asphalt
Agreement"); and (iii) a nonexclusive license to use the Licensed Marks in
connection with Licensee's manufacture and sale of certain products, including
without limitation but subject to Article 1.G. herein, refinery product
chemicals (such as benzene and propylene), asphalt and heavier refined oils (the
"Other Licensed Products") in the Exclusive Licensed Territory and throughout
the United States (the "Licensed Territory");
NOW THEREFORE, in consideration of the purchase of the Partnership
Business, and the mutual covenants and agreements set forth in this License
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Licensor and Licensee agree as
follows:
1. LICENSE.
A. Commencing on the effective date hereof and continuing until
terminated as provided herein, Licensor hereby grants Licensee,
solely in connection with the Licensed Products and pursuant to the
terms, representations, warranties, covenants, restrictions and
conditions contained in this License Agreement, the following rights:
(i) an exclusive license to use the Licensed Marks in connection with
the manufacture and sale of the Exclusive Licensed Products in the
Exclusive Licensed Territory; (ii) an exclusive license to use the
Licensed Marks in connection with the manufacture and sale of
asphalt in the Exclusive Licensed Territory, and in Montana, Idaho,
Wyoming, Nevada, North Dakota and South Dakota, such exclusivity to
extend for as long as Licensee retains an exclusive license under the
terms of the Asphalt Agreement; and, (iii) a non-exclusive license to
use the Licensed Marks on Other Licensed Products in the Exclusive
Licensed Territory and throughout the United States. It is understood
that, in the event that the Licensee ceases to hold exclusivity
rights under the Asphalt Agreement in accordance to its terms,
Licensee shall have non-exclusive rights to sell asphalt under the
Licensed marks throughout the Licensed Territory.
B. Licensee's rights to make and sell Licensed Products, as provided
above, shall include all rights deriving therefrom in connection with
the promotion and distribution of Licensed Products, including the
right to advertise and promote sales, construct signs, and use the
Licensed Marks on and in service stations operated in the Partnership
Business, in at least the same manner as used by Licensor in
connection with its operation of the Partnership Business, prior to
the date of this License Agreement.
C. Licensor shall not have the right to issue further licenses to others
nor to make use for itself, of the Licensed Marks in the Exclusive
Licensed Territory on Exclusive Licensed Products, nor the right to
license or use any other marks on such products within the Exclusive
Licensed Territory which a reasonably prudent purchaser of such
products would find confusingly similar to the Licensed Marks;
however, Licensor retains the right to use and license the Licensed
Marks on all products outside the Exclusive Licensed Territory, and
to license and use the Licensed Marks on all products except the
Exclusive Licensed Products, and asphalt, inside the Exclusive
Licensed territory.
D. Licensee shall not be required to pay a fee or royalty for Licensee's
use of the Licensed Marks. The right and license herein granted is
fully paid up and shall be royalty-free in that consideration has
been provided to Licensor pursuant to the LP Interest Purchase
Agreement dated July 31, 2000 between Licensor and the owners
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of the general and limited partner interests of Licensee (the "LP
Interest Agreement"). This is not a franchise arrangement, but is
merely a license to use the Licensed Marks with respect to the
Exclusive Licensed Products and Other Licensed Products. Licensee shall
not be considered an agent or representative of Licensor. Licensee
shall have no rights of ownership in the Licensed Marks nor shall
Licensee have the general right to sublicense the Licensed Marks,
(other than a limited right to sublicense distributors as set forth in
Paragraph 3.H below), without the prior written consent of Licensor.
E. Pursuant to the LP Interest Purchase Agreement, Licensor has
transferred to Licensee Licensor's credit card program and all branded
wholesaler agreements currently in place.
F. Licensor acknowledges that it does not claim exclusive rights to the
mere colors used in any of the Licensed Marks and that this License
Agreement shall not in any way restrict Licensee from using such colors
in Licensee's service station operations after the term of this License
Agreement; and furthermore, notwithstanding any provisions contained
herein to the contrary, those particular Licensed Marks that are
directed to color combinations, namely U.S. Trademark Registrations
Nos. 1,642,553; 1,644,206; 1,649,241; and 1,661,952, are excluded from
the time limitations contained in Sections 2. and 5. herebelow, and are
licensed on a royalty-free basis, in perpetuity. Should Licensee
decided to cease use of any one or more of these four marks at any
time, it will promptly notify Licensor of such decision, well in
advance of any renewal deadlines for any of said Licensed Marks.
G. For the purposes of limiting the scope of Other Licensed Products and
Exclusive Licensed Products, such categories shall specifically exclude
lubricants, such as motor oil, diesel engine oil, greases, transmission
fluids, and any other lubricants.
2. LICENSOR'S MARKS.
A. Licensee acknowledges that the Licensed Marks are a valuable and
important property right owned by Licensor, and are essential to the
continued good will and reputation developed by Licensor. Licensee
shall not sell or transfer any products which are manufactured by
Licensee or supplied to Licensee by third parties, which exhibit any of
Licensor's Marks unless such products meet the minimum standards for
Licensor's products as set forth hereinbelow; however, Licensee may
advertise, utilize and sell other brands of products under its own name
or names, such uses of other brands inuring (as between Licensor and
Licensee) entirely to Licensee. Licensee agrees not to claim or assert
any rights, title or interest in or to the Licensed Marks in any way
other than its rights under this Agreement.
B. Licensor reserves the right at any time to change or modify any one or
more of the Licensed Marks for its own use, at its sole discretion. In
the event Licensor changes any of the Licensed Marks, it will promptly
communicate such changes to Licensee. Any such changed Licensed Marks
shall be deemed a Licensed Xxxx under the terms
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of this Agreement. The decision whether to use any of the
Licensed marks shall be at the sole discretion of Licensee,
and there is no obligation upon Licensee to use any Licensed
Xxxx or to make changes to any Licensed Xxxx in use by
Licensee at the time of a change by Licensor.
C. Licensee agrees that, upon Licensor's termination of this
License Agreement in accordance to its terms Licensee will
immediately cease applying the Licensed Marks to its products,
and will promptly destroy all remaining printed materials
bearing the Licensed Marks, and remove all traces of the
Licensed Marks from its stations and facilities as more fully
set forth in paragraphs 8 and 9 hereinbelow. However, upon a
termination prior to expiration of this License, Licensee
shall have a reasonable time, not to exceed two (2) years to
dispose of all its signage inventory that display any of the
Licensed Marks.
D. Licensee agrees that, as far as is practical and according to
normal business customs, it will utilize the symbol RMR in
conjunction with the federally registered trademarks and
service marks contained in the Licensed Marks when used on
Exclusive Licensed Products and Other Licensed Products, on
signage, and in printed materials.
E. Licensor shall be responsible for maintaining the Licensed
Marks in the United States Trademark Office, including the
costs for registering the Licensed Marks, and renewing the
registrations of the Licensed Marks.
3. IMAGE REQUIREMENTS.
A. Licensee will take all reasonable steps to protect the good
will associated with the Licensed Marks and, in order to
prevent any deception to the public, will operate its business
in accordance with the standards and requirements of quality,
production, appearance, cleanliness, safety, and service as
are from time to time proscribed by Licensor, provided
such provisions are reasonable and do not inflict unreasonable
costs or expenses on Licensee; but in no event will Licensee
operate according to any standards which are lower than those
currently being practiced by Licensor. This shall include
keeping the manufacturing, shipping, and retail facilities of
Licensee in a neat, attractive and safe condition and also
includes making such repairs and renovations as may be
reasonably necessary in order to meet the reasonable standards
set by Licensor. In addition, Licensee shall at all times
maintain adequate inventories and trained personnel to serve
the public in a manner commensurate with the reputation of
Licensor's Facilities bearing the Licensed Marks. In order to
ensure common identity of products and services to the public,
Licensee shall place the Licensed Marks on such products,
buildings, and displays as Licensor is doing in its commercial
locations, or as Licensor may reasonably direct in writing to
Licensee.
B. Licensor shall, at its own expense, provide supervisory
assistance to Licensee concerning proper use of the Licensed
Marks and proper quality control as set forth in Paragraph
3.A. above. In order to facilitate such assistance and further
to ensure compliance with quality specifications and standards
for use of the Licensed Marks,
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Licensee shall allow representatives of Licensor at reasonable times,
to enter upon the Licensed Facilities for inspection of the same, and
upon reasonable written notice will make available to such
representatives any information requested, including the right to
inspect the premises, the Licensed Products, supplies being used to
manufacture the Licensed Products, relevant manufacturing methods, and
to conduct any tests necessary to determine if sufficient quality is
being maintained.
C. Licensee shall not make any representations to its customers as to the
existence of any warranties of Licensor with respect to the Licensed
Products being sold by Licensee, nor shall Licensee represent that
anyone other than Licensee is in any way responsible for the quality of
any product or service being provided by Licensee. Licensee shall make
no representations that Licensee is affiliated in any manner with
Licensor, nor that Licensor in any manner guarantees the debts,
obligations, or liabilities of Licensee.
D. Licensee will not do nor permit to be done any act that would tend to
disparage the good will and reputation of Licensor or of any of the
Licensed Marks, nor permit any act that could be reasonably foreseen to
prejudice, affect, impair, or destroy the titles, interest, and/or
ownership of Licensor in the Licensed Marks or the legal existence or
enforceability of the Licensed Marks.
E. Under no circumstances will Licensee challenge the validity of the
Licensed Marks in any court or proceeding, nor attempt to cancel or
invalidate the registrations of the Licensed Marks. Licensee will
cooperate fully with Licensor in renewing any registrations of the
Licensed Marks as they become due, including providing to Licensor a
reasonable number of specimens exhibiting Licensee's commercial usage
of the Licensed Marks, and specific information about dates and types
of Licensee's usage thereof, without imposing on Licensee any
obligation to pay registration fees.
F. Licensee will not use the Licensed Marks in any sales of Exclusive
Licensed Products outside the Exclusive Licensed Territory, nor will it
use the Licensed Marks in any sale of Exclusive Licensed Products to,
or accept any orders for the sale of Exclusive Licensed Products
carrying the Licensed Marks from, any entity which Licensee knows or
has reason to believe intends to sell the Exclusive Licensed Products
using the Licensed Marks outside the Exclusive Licensed Territory. For
the avoidance of doubt it is hereby clarified, that notwithstanding
anything contained in this agreement Licensee is free to make and sell
any products not bearing the Licensed Marks, without restriction,
throughout the world.
G. Licensee will remove the Licensed Marks specifically from the gate and
entry way of Licensee's refinery and of Licensee's other manufacturing
facilities within six (6) months after the effective date of this
License Agreement. Nothing in this Agreement shall be construed,
however, as preventing Licensee from advertising Licensed Products or
Fina credit cards at the Big Spring Refinery or other transportation
facilities or otherwise using the Licensed Marks as permitted
hereunder.
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H. Licensee is hereby granted a limited right to sublicense the Licensed
Marks without the prior written approval of Licensor; but only in the
Exclusive Licensed Territory, only for Exclusive Licensed Products,
only to reputable jobbers and distributors, and only under terms and
conditions at least as restrictive as those contained in this
License Agreement. It is hereby agreed that the jobbers and
distributors with whom Licensor has contractual relations prior to
the date of this Agreement, are to be considered reputable, and the
terms and conditions of said contractual relationships are deemed to
be as restrictive as those contained herein, for the purposes of this
Section 3.H. In the event of any such sublicense, Licensee agrees that
it will enforce the quality control provisions to which Licensee is
subjected herein, and further, that Licensee will include in each and
every one of such sublicenses, provisions allowing Licensor to audit
and inspect the sublicensees' products and facilities to the same
extent Licensor has the rights hereunder with respect to Licensee's
products and facilities. Each and every sublicense granted by Licensee
hereunder, and each renewal by Licensee of existing sublicenses
hereunder, shall include specific language setting forth that the
trademarks being sublicensed are not owned by Licensee but are
licensed from Licensor. Such language shall refer specifically to this
Trademark License Agreement and shall contain provisions describing
the exact time period that this License is to run, as well as the
obligation on each sublicensee to debrand their products and
facilities when legally obligated to by the terms of the relevant
sublicense, and within the time period granted therefore. Licensee
agrees to obey all laws, rules, regulations, ordinances, and standards
of all pertinent governmental bodies in the Licensed Territory with
respect to Licensee's use of the Licensed marks in the manufacture and
sale of the Licensed Products, and to insert similar provisions in all
new and renewed sublicenses, with the intent to bind all sublicensees
to identical obligations. However, nothing in this agreement is to be
construed as imposing on the Licensee an obligation to guarantee the
performance by sublicensees of their obligations.
I. Licensor and Licensee agree that sale of Exclusive Licensed Products
and Other Licensed Products under this License Agreement will be
facilitated and increased by use of the Internet as a communications
medium to existing and potential customers. Licensor and Licensee
agree to develop and provide a mutually agreeable hypertext link
from Licensor's web pages to Licensee's web page on the Internet for
inquiries made via the Internet of Licensor for Exclusive Licensed
Product or Other Licensed Products, or both of such Products. Such
hypertext link, its format and the operating requirements and
conditions shall be mutually agreed upon by Licensor and Licensee.
4. INDEMNIFICATION.
Licensee hereby indemnifies and holds Licensor harmless from any and all
product liability and personal injury damages, legal actions, and
governmental actions, incurred by Licensee after the Closing, as defined
in the LP Interest Agreement, with respect to its manufacture and sale
after the Closing of Exclusive Licensed Products and Other Licensed
Products displaying the Licensed Marks, and with respect to the Licensed
Facilities displaying after the Closing the Licensed Marks, including all
reasonable legal costs and attorneys' fees
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incurred by Licensor in defending any such actions or causes post
Closing. However, such indemnity shall not apply to losses caused
primarily by the negligence or willful misconduct of Licensor.
Licensor hereby indemnifies and holds Licensee harmless from any and
all breaches by Licensor of any one or more of the representations and
warranties made in this License Agreement.
5. TERM.
The term of this License Agreement shall run for twelve (12) years, or
as long as Licensee continues to manufacture and sell Licensed
Products in the Licensed Territory which display the Licensed Marks,
whichever period is shorter.
6. USE OF THE MARKS.
A. Licensee will not use any of the Licensed Marks as a part of its
corporate or business name. Licensee will only use, and will limit
and permit the use of, the Licensed Marks solely in connection with
the promotion and sale of Licensed Products. Licensee shall not use
the Licensed Marks in connection with any other business, or any
other property. No title to the Licensed Marks will pass hereunder
to Licensee, or thereafter through or from Licensee; and only the
rights granted in or pursuant to this License Agreement are
provided to Licensee. However, nothing herein shall be construed as
preventing or prohibiting Licensee from stating in any publication
that it is a licensee of Licensor.
B. Licensee's use of the Marks shall at all times be in accordance
with styles and standards set forth from time to time by Licensor.
7. ASSIGNMENT.
Assignability of this Agreement shall be governed by Section 18.04 of
the LP Purchase Agreement, a copy of which is attached hereto as
Exhibit "C." Notwithstanding anything to the contrary herein, an
assignment at any time of any or all of Licensee's rights or
obligations under this Agreement to the Purchaser under the Asset and
Stock Purchase Agreement of even date herewith, will be a permitted
assignment not requiring prior approval by Licensor.
8. TERMINATION.
If Licensee defaults in the performance of any term, covenant or
condition provided in this License Agreement, and such default
continues uncorrected by Licensee or by Licensee's lender, for a
period of ninety (90) days following notice thereof by Licensor to
Licensee and Licensee's lender, this License shall thereafter
terminate immediately upon delivery of written notice from Licensor to
Licensee of notice of termination. However, breaches or infringement
by any third party which are addressed diligently by Licensee under
Section 3.H. or Section 19. hereof, shall not constitute a breach by
Licensee of any of the terms of this Agreement. Defaults of this
Agreement by Licensee may be cured by Licensee or by Licensee's
lender.
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9. OBLIGATIONS OF LICENSEE UPON TERMINATION.
Subject to the provisions of Article 1.F. herein, upon expiration of
the twelve year term of this License Agreement, Licensee shall
immediately cease to use or display the Licensed Marks, and will
return to Licensor, or destroy, all written and printed materials and
signage bearing the Licensed Marks within ninety (90) days after such
expiration. Upon expiration of the License Agreement, Licensee shall
have disposed of all Licensed Products in its inventory which have any
of the Licensed Marks permanently affixed thereon; and upon
termination or expiration, Licensee shall immediately cease labeling
any further products with the Licensed Marks. Upon expiration or
termination of this License, it shall be Licensee's sole
responsibility to complete the debranding of the Licensed Facilities
and insure that all use and display of the Licensed Marks, and all
labeling and branding of the Licensed Facilities, shall have
completely ceased, and the Licensee shall forthwith cease to use the
name FINA on any advertising or promotional materials, including any
reference to FINA.
10. NOTICES AND ADDRESSES.
Any notice or document required to be delivered hereunder shall be
deemed to be delivered, when it is either: (i) sent via confirmed
facsimile transmission to the number given below, or (ii)
hand-delivered to the parties at their respective addresses set forth
below, or (iii) placed in an envelope addressed to the party intended,
and mailed via the U.S. Postal service as first class Certified Mail
with sufficient postage affixed thereto, to:
Licensor: ATOFINA Petrochemicals, Inc.
Attention: President
World Houston Plaza
00000 XXX Xxxxxxxxx
Xxxxxxx, XX. 00000
Fax No. (000) 000-0000
Licensee: SWBU, L.P.
Attention: President
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000-0000
Fax Number: ( ) ____________________
With a copy to: Xxxxxxxxx & Xxxxxxxxx, L.L.P.
000 X. Xxxxx Xx., Xxxxx 0000
Xxxxxx, XX. 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx
Israel Discount Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
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Facsimile No.: (000) 000-0000
Either party may change the address or facsimile number to which notices are to
be sent by giving the other party written notice of the new address or
facsimile number in the manner provided in this section.
11. NO WAIVER.
No waiver by one party of any breach by the other party of any of the
other party's obligations, agreements, or covenants hereunder shall be
a waiver of any subsequent breach or forbearance by the first party of
its rights and remedies with respect to such or any subsequent breach.
No waiver, change, modification, or discharge by either party hereto
of any provision of this License Agreement shall be deemed to have
been made, or shall be effective, unless expressed in writing and
signed by both parties.
12. PARTIAL INVALIDITY.
If any term or provision of this License Agreement shall be held to
be invalid or unenforceable, the remaining terms and provisions of
this License Agreement shall not be affected thereby, but each term
and provision shall be valid and enforced to the fullest extent
permitted by law. Moreover, a valid provision, as similar as possible
in its terms and effect, shall be substituted for the provision which
is held invalid.
13. ENTIRE AGREEMENT.
This License Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof, and any alterations
or additions hereto shall have effect only if reduced to writing and
signed by the duly authorized representative of each party. This
License Agreement supersedes any prior understandings or written or
oral agreements between the parties respecting the subject matter
hereof. The terms used in this Agreement and not otherwise defined in
this Agreement have the meanings given them in the LP Interest
Agreement. No delay or omission on the part of any party in exercising
any right or privilege under this Agreement shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right or
privilege under this Agreement operate as a waiver of any other right
or privilege under this Agreement.
14. ATTORNEYS' FEES AND COSTS.
[This section is left Intentionally Blank.]
15. GOVERNING LAW.
This Licensee Agreement shall be governed, construed and enforced in
accordance with the laws of the State of Texas, USA, without giving
effect to Texas conflict of laws statutes.
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16. PARTIES BOUND.
This License Agreement and all of its provisions shall inure to the
benefit of and be binding upon the respective heirs and permitted
successors and assigns of the parties hereto.
17. RECITALS.
The recitals set forth on the first page of this License Agreement are
true and correct in all material respects and are incorporated herein
by reference.
18. WARRANTY.
Except as expressly provided herein, nothing contained herein shall be
construed as, and Licensor specifically disclaims, any warranty of
validity with respect to any of the Marks; nor shall any provision of
this License Agreement be construed as an obligation on Licensor to
renew, maintain, or defend in court any one or more of the Licensed
Marks. Licensor represents and warrants that the ownership and validity
of the Licensed Marks are not being disputed or challenged in any court
or other contested proceeding and that the Licensed Marks are currently
in full force and effect; and further, that Licensor is not aware of
any threat of any such dispute or challenge, nor of any circumstance
that will cause Licensee's use of the Licensed Marks to infringe any
existing valid third party trademark registration in effect at the time
of execution of this Agreement. Licensor further warrants and
represents that it has the right to grant the licenses herein granted
and has not entered into any agreement that contravenes the license
herein granted.
19. INFRINGEMENT.
A. Should Licensee become aware of any third party infringement
of any one or more of the Licensed Marks in the Licensed
Territory, or any improper or wrongful use of the Licensed
Marks, Licensee shall immediately bring such improper use or
infringement to Licensor's attention in writing. Licensor, at
its sole discretion and expense, may choose to pursue legal
action against third parties infringing or misusing the
Licensed Marks in the Licensed Territory. If Licensor chooses
to pursue legal action against such third parties, Licensee
will take every reasonable step to cooperate with and assist
Licensor in such action, at Licensor's sole cost and expense.
Any and all damages recovered by Licensor from third parties
for trademark infringement or misuse shall be the sole
property of Licensor. Licensor shall reimburse Licensee for
Licensee's reasonable, provable costs incurred in cooperating
with Licensor during such recovery actions.
B. Should Licensor choose not to institute legal action against
any third party infringer of the Licensed Marks in the
Licensed Territory, such decision shall promptly be
communicated in writing by Licensor to Licensee, and Licensee
may choose to pursue such infringer at Licensee's sole
direction and expense. At Licensee's written request in such
action, Licensor will cooperate fully with Licensee in such
action and will provide to Licensee any necessary
documentation required for Licensee to bring
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lawful suit under the Licensed Marks against third party infringers,
including voluntarily being added to the litigation as a necessary
party. Any damages or monetary recovery gained by Licensee under such
circumstances shall belong exclusively to Licensee, after paying
Licensor's reasonable, incurred expenses. Licensee may not enter into
any settlement agreement with any third party which has not received
the prior written approval of Licensor, which approval shall not be
unreasonably withheld; and in no event may Licensee agree to any
settlement term which diminishes the scope, validity, or enforceability
of any of the Licensed Marks, nor attempts to create any right of use
or license in any third party, subject however, to Licensee's limited
right to sublicense as set forth in Section 3.H. above. If, at any time
during such legal action, Licensor decides it wishes to assume control
of such litigation, it may do so without permission of Licensee, and
upon full reimbursement of Licensee for all reasonable, provable costs
(including attorney's fees) incurred in connection with such
litigation. Licensor will be responsible for its own costs and
attorney's fees incurred in such litigation. In the case of a monetary
recovery thereafter, both parties shall share in the recovery
proportionately to the amount of damages each has incurred by reason of
said third party infringement, after deduction of all litigation
expenses incurred by Licensor and Licensee.
20. ARBITRATION.
The parties hereto agree, as a severable and independent arbitration
agreement separately enforceable from the remainder of this Agreement,
that in the event Licensor and Licensee are unable to amicably resolve any
dispute or difference arising under or our of, in relation to or in any
way connected with this Agreement (whether contractual, tortious,
equitable, statutory, or otherwise, and including any dispute as to the
construction, existence, validity, interpretation, enforceability,
amendment or breach of this Agreement), all such disputes or differences,
upon the election of Licensor or Licensee, shall be finally and
exclusively resolved by binding arbitration in Houston, Texas, in
accordance with the arbitration provisions of Section 18.13 of the LP
Interest Purchase Agreement.
IN WITNESS WHEREOF, Licensor and Licensee have caused this License
Agreement to be executed by the respective authorized parties to be effective as
of the date set forth above.
FINAMARK, INC. ATOFINA PETROCHEMICALS, INC.
By: /s/ XXXXX X. XXXXXXXXXX By: /s/ XXX X. XXXXXXX
------------------------------ --------------------------------
Printed Name: Xxxxx X. Xxxxxxxxxx Printed Name: Xxx X. Xxxxxxx
-------------------- ----------------------
Title: Sec/Treas. Title: ATTORNEY-IN-FACT
--------------------------- -----------------------------
SWBU, L.P.
By: ALON USA GP, INC., Its General Partner
---------------------------------------
By: /s/ XXXXX XXXXXXXX
---------------------------------------
Printed Name: Xxxxx Xxxxxxxx
-----------------------------
Title: Chairman
------------------------------------
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