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Exhibit 10.23(a)
AMENDED AND RESTATED
TRADEMARK LICENSE AGREEMENT
THIS AMENDED AND RESTATED TRADEMARK LICENSE AGREEMENT (together with all
Schedules attached hereto and made a part hereof, this "License Agreement"),
effective as of the Restatement Effective Date (as defined in the Master Lease
(as hereinafter defined)), is entered into by and between: Getty Properties
Corp. (f/k/a Getty Realty Corp.) (hereinafter called "REALTY"), a corporation
organized and existing under the laws of the State of Delaware, located at 000
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000; and Getty Petroleum Marketing Inc.
(together with any successors and permitted assignees, hereinafter called
"MARKETING"), a corporation organized and existing under the laws of the State
of Maryland, located at 000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000.
WHEREAS, REALTY is the owner of certain trademarks, service marks and
trade names that have been utilized in, among other businesses, the motor fuels
marketing business, as conducted in certain areas of the United States (defined
below as the Licensed Territory);
WHEREAS, REALTY has leased and subleased various motor fuels outlet
properties to MARKETING under certain net lease agreements, all of which net
lease agreements have been incorporated, consolidated, amended and restated as
of the date hereof pursuant to that certain Consolidated, Amended and Restated
Master Lease between REALTY, as landlord, and MARKETING, as tenant (as so
incorporated, consolidated, amended and restated, the "Master Lease");
WHEREAS, REALTY licensed certain trademarks, service marks and trade
names to MARKETING for use in its marketing business pursuant to the Trademark
License
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Agreement between Getty Properties Corp. and MARKETING dated February 1, 1997
(the "Original License Agreement") in the Original Licensed Territory (as
defined below);
WHEREAS, REALTY and MARKETING seek to amend and restate in its entirety
the Original License Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises hereinafter set forth, the parties hereby amend, restate and supersede
the Original License Agreement in its entirety as follows:
1. DEFINITIONS
A. "Affiliate" means any stockholder of MARKETING that beneficially
owns at least a majority of the then issued and outstanding capital stock of
MARKETING or any wholly-owned or majority-owned subsidiary of MARKETING that are
involved in the Marketing Business (as defined hereinafter).
B. "Branded Gasoline" means gasoline that is sold through a Branded
Outlet and is identified using any of the Licensed Marks.
C. "Branded Outlet" means a retail service station with signage bearing
any of the Licensed Marks and located in the Licensed Territory that is, or is
hereafter, owned or operated by MARKETING or persons that sublicense the
Licensed Marks from MARKETING pursuant to Xxxxxxxxx 0X hereof.
D. "Licensed Marks" means the trademarks, service marks or trade names
listed on Schedule A attached hereto and as subsequently included pursuant to
Xxxxxxxxx 0X hereof.
E. "Licensed Territory" means the following states and district, as
applicable, of the United States: Maine, New Hampshire, Vermont, Massachusetts,
Rhode Island,
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Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia
and the District of Columbia.
F. "Marketing Business" means: (i) the purchase, storage, distribution,
marketing, and sale of gasoline, diesel fuel and other related products at
wholesale and through terminals and a retail service station network; (ii) the
operation of convenience stores; and (iii) the purchase, storage, transportation
and sale of home heating oil to residential and commercial customers in mid
Xxxxxx Valley, New York. By way of example, "Marketing Business" does not
include the real estate business previously carried on by Getty Petroleum Corp.,
which is currently being carried on by REALTY.
G. "Material Non-Monetary Default" means a material breach or breaches
of MARKETING's obligations under this License Agreement that reasonably would be
expected to result in a significant and lasting diminution of the value of the
Licensed Marks in the Marketing Business.
H. "Original Licensed Territory" means the following states of the
United States: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,
Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia
and West Virginia.
2. GRANT OF LICENSE
A. Subject to the terms and conditions set out herein, REALTY grants to
MARKETING an exclusive license to use the Licensed Marks in the Licensed
Territory in connection with its Marketing Business. The license shall be
royalty-free except for the royalty payments required to be made pursuant to the
Master Lease, which such payments are defined therein as the "Royalty Fee."
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B. MARKETING and any Affiliate may use and continue to use the name
"Getty" in the name under which it incorporates, organizes or conducts its
business and its subsidiaries; provided that there is no likelihood of confusion
between MARKETING's and its subsidiaries' incorporated name and Getty Properties
Corp. or Getty Realty Corp., and that the use of the name "Getty" in MARKETING's
or its subsidiaries' incorporated name does not exceed REALTY's rights to the
name "Getty". The parties agree that the use by MARKETING and its subsidiary of
the incorporated names Getty Petroleum Marketing Inc. and Getty Terminals Corp.
does not create any likelihood of confusion. MARKETING or any Affiliate may use
the name "Getty" in combination with the name "Lukoil", or any variation
thereof, and any other name under which OAO LUKOIL operates, or subsequently
operates, all or part of its operations, in the names under which such entities
incorporate, organize or conduct their respective businesses, provided that such
use of the name "Getty" does not exceed REALTY's rights to the name "Getty" and
does not create a likelihood of confusion with Getty Properties Corp. or Getty
Realty Corp. The act of combining the name "Lukoil", or any stylistic variation
thereof, or any other name with the name "Getty" or using such combined name in
commerce shall give no rights to REALTY to use the names combined with "Getty".
Upon the request of MARKETING, REALTY shall execute and deliver to MARKETING any
consents that may be required from time to time by the secretary of state or
similar office of a state, commonwealth or other jurisdiction in order for
MARKETING or any Affiliate to use the name "Getty" in the name under which it
incorporates, organizes or conducts its business. MARKETING accepts the license
subject to the terms and conditions of this License Agreement.
C. Subject to the consent of REALTY, which consent shall not be
unreasonably withheld or delayed, MARKETING may sublicense the Licensed Marks to
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retailers or wholesalers of petroleum and other related products and operators
of convenience stores, including but not limited to service station retailers,
jobbers and distributors, but only subject to the terms and conditions of this
License Agreement, all of which shall be equally binding on the sublicensees. In
determining the reasonableness of a refusal to consent to a sublicense, the
parties shall be guided by the following considerations: (i) the parties shall
not knowingly take any action which would materially tarnish the image or cause
a material adverse impact on the value of the Licensed Marks; and (ii) the
parties shall not permit the indiscriminate proliferation of sublicensees which
would reasonably be expected to cause the Licensed Marks to lose significance as
a source of origin. In connection with any sublicense granted hereunder, the
sublicensee shall be required to agree in writing to be bound by and comply with
all terms and conditions of this License Agreement, except the obligation to pay
royalty fees under the Master Lease which shall remain an obligation of
MARKETING.
REALTY hereby consents to the sublicensing of the Licensed Marks
pursuant to this Xxxxxxxxx 0X and authorizes MARKETING to make amendments and
revisions in those sublicenses that are not of a material nature.
D. Nothing in this License Agreement shall be construed as restricting
MARKETING'S ability to (i) purchase, store, distribute, market, or sell
gasoline, diesel fuel and other related products at wholesale and through
terminals and a retail service station network, (ii) to operate convenience
stores and (iii) to purchase, store, transport and sell home heating oil to
residential and commercial customers in Mid-Xxxxxx Valley, New York, in the
Licensed Territory, in each case using any trademark, trade name or service xxxx
other than the Licensed Marks.
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3. OWNERSHIP OF MARKS
MARKETING acknowledges REALTY's ownership of the Licensed Marks in the
Licensed Territory. MARKETING agrees that it will do nothing inconsistent with
such ownership and that all use of the Licensed Marks by MARKETING shall inure
to the benefit of, and be on behalf of, REALTY. MARKETING agrees that nothing in
this License Agreement shall give MARKETING any right, title or interest in the
Licensed Marks other than the right to use the Licensed Marks in accordance with
this License Agreement. MARKETING agrees that it will not attack the title of
REALTY to the Licensed Marks or attack the validity of the rights granted under
this License Agreement.
4. QUALITY STANDARDS
MARKETING agrees that the nature and quality of all services rendered
by MARKETING in connection with the Licensed Marks; all goods sold by MARKETING
under the Licensed Marks; and all related advertising, promotional and other
related uses of the Licensed Marks by MARKETING shall conform to reasonable
standards set by and be under the control of REALTY. MARKETING agrees that the
quality of all such services, goods, and advertising and promotional materials
associated with the Licensed Marks shall be of the same high-level quality as
previously associated with the Licensed Marks. MARKETING further agrees that the
quality of all such services, goods, and advertising, promotional and other
related uses of the Licensed Marks shall conform with the standards,
specifications, and instructions as established by REALTY or such subsequent
standards, specifications, or instructions reasonably comparable thereto
promulgated by MARKETING subject to the approval of REALTY, such approval not to
be unreasonably withheld or delayed. MARKETING shall be deemed to have complied
with the quality standards in existence from time to time under this License
Agreement so long as MARKETING maintains the physical condition of, and the
services provided through,
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Branded Outlets not materially worse than the physical condition and level of
service generally characteristic on the date hereof of retail service stations
of MARKETING and its sublicensees that use the Licensed Marks. Except as may be
required by law or as reasonably necessary to protect the Licensed Marks, REALTY
shall not set quality standards higher than those generally characteristic on
the date hereof of services rendered and goods sold through retail service
stations of MARKETING and its sublicensees that use the Licensed Marks. REALTY
shall not set quality standards for other licensees of the Licensed Marks that
are lower than those set for MARKETING from time to time during the term of this
License Agreement. Without limiting the generality of the foregoing, MARKETING
agrees to comply with the standards, specifications, and instructions set out in
Schedule B hereto, as may be modified from time to time in accordance with this
Paragraph 4. If MARKETING intends to use the Licensed Marks on a new product
within the ambit of a particular registration it shall request approval for such
new product from REALTY at least thirty (30) days prior to initiating such new
product use, and such approval shall not be unreasonably withheld by REALTY.
REALTY shall provide MARKETING with notice of approval or non-approval, as the
case may be, within thirty (30) days of the receipt of the notice with respect
to MARKETING's intended new product; provided that REALTY shall be deemed to
have given such approval if REALTY fails to deliver to MARKETING any notice
within such 30-day period. If REALTY rejects any proposal to use any of the
Licensed Marks with a new product, then REALTY shall provide a reasonably
detailed explanation to MARKETING as to why REALTY found the proposed use of the
Licensed Marks unacceptable. MARKETING may resubmit to REALTY, and REALTY shall
give reasonable consideration to, an amended proposal for such new product.
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5. QUALITY MAINTENANCE
MARKETING agrees to cooperate with REALTY in facilitating REALTY's
control of the nature and quality of goods, services and related uses associated
with the Licensed Marks, to permit reasonable inspection of MARKETING's
operations once in any four-month period during normal business hours and upon
ten day's prior written notice, and to supply REALTY with specimens of all uses
of the Licensed Marks upon request. REALTY shall have no right to inspect the
books and records of MARKETING other than those books and records reasonably
related to the use of the Licensed Marks by MARKETING in accordance with the
terms of this License Agreement, and REALTY shall maintain all such information
in the strictest of confidence. MARKETING shall comply with all applicable laws
and regulations, including, but not limited to laws and regulations applicable
to the storage and sale of gasoline at Branded Outlets and will obtain all
appropriate government approvals pertaining to the sale, distribution and
advertising of goods and services covered by this License Agreement. REALTY
shall have the right to enter and inspect up to fifteen Branded Outlets in any
three-month period, which number, for purposes of clarification, includes
Branded Outlets operated by sublicensees of the Licensed Marks. REALTY shall
have the right to receive from MARKETING, upon request and without charge, a
reasonable number of samples of products sold by MARKETING as well as labels,
promotional materials, advertising materials, sales materials and related
materials using any of the Licensed Marks.
6. FORM OF USE
A. MARKETING agrees to use the Licensed Marks only in the form, manner
and trade dress and with appropriate legends as reasonably prescribed from time
to time by REALTY, and not to use any other trademark, trade name, trade dress,
or service xxxx in combination with any of the Licensed Marks without prior
written approval of REALTY.
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REALTY hereby approves of the use of the Licensed Marks used in combination with
other trademarks, trade names, trade dress, or service marks set out in Schedule
C.
B. MARKETING shall submit to REALTY for prior approval all new or
revised labels that are a material departure from those presently used at least
sixty (60) days prior to initiating use of a revised or new label. REALTY's
approval shall not be unreasonably withheld or delayed. REALTY shall provide
MARKETING with notice of approval or non-approval, as the case may be, within
thirty (30) days of the receipt of the notice with respect to MARKETING's
intended new or revised label; provided that REALTY shall be deemed to have
given such approval if REALTY fails to deliver to MARKETING any notice within
such 30-day period. If REALTY rejects any proposal to use any new or revised
labels, then REALTY shall provide a reasonably detailed explanation to MARKETING
as to why REALTY found the proposed labels unacceptable, and MARKETING may
resubmit to REALTY, and REALTY shall give reasonable consideration to, any
amended proposal for such new or revised label.
C. If during the term of this Agreement REALTY owns or obtains the
right to use any trademark, service xxxx or trade name that incorporates the
name "Getty" and is associated with the Marketing Business, REALTY promptly
shall give written notice of such new trademark, service xxxx or trade name to
MARKETING, and upon the written request of MARKETING, such trademark, service
xxxx or trade name shall become a Licensed Xxxx.
7. TRADEMARK NOTICES
MARKETING will utilize on its products bearing the Licensed Marks,
packaging and advertising, whatever lawful notice is reasonably requested in
writing by REALTY in order to protect the Licensed Marks and properly designate
REALTY's legal ownership thereof. Without limiting the foregoing, MARKETING
agrees to utilize, where commercially practicable, a notice sufficient to
indicate that each of the utilized Licensed Marks is a registered trademark
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of Getty Properties Corp. If REALTY does not request a particular trademark
notice, MARKETING shall utilize such notice as in the opinion of its counsel is
appropriate in order to protect the Licensed Marks and properly designate
REALTY's legal ownership thereof and the fact of registration thereof. However,
MARKETING shall advise REALTY of each such intended notice, and make any changes
thereto reasonably requested by REALTY.
8. APPROVALS AND PROTECTION OF THE LICENSED MARKS
In discharging their respective rights and obligations with respect to
Paragraphs 4, 5, 6, or 7 above, the parties shall be guided by the following
consideration: The parties shall not knowingly take any action which would
materially tarnish the image or cause a material adverse impact on the value of
the Licensed Marks including, without limitation, the indiscriminate
proliferation of uses of the Licensed Marks which would cause any of the
Licensed Marks to lose significance as a source of origin. If there is any
dispute as to either party's obligations with respect to Paragraphs 4, 5, 6, or
7 above, or the application thereof, the parties shall promptly consult to
resolve the matter. If the parties cannot resolve the matter, the dispute shall
be submitted to arbitration in accordance with Paragraph 15 below and the
arbitrator in that case shall be guided by the same considerations described
above in this Paragraph 8.
9. CONFLICTING TRADEMARKS
MARKETING will not at any time adopt or use, without REALTY's prior
written consent, any word, xxxx, or designation which is similar or likely to be
confused with any of the Licensed Marks.
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10. FUTURE DOCUMENTS, RECORDING AND TRADEMARK MAINTENANCE
A. The parties agree to cooperate in the execution and delivery, from
time to time, throughout the term of this License Agreement, of any documents
that may be reasonably required or desirable to effectuate and carry out the
purpose and intent of this License Agreement. Such documents shall include
instruments required to file, renew, protect, perfect and/or maintain the
Licensed Marks and REALTY's ownership therein, or to provide for the granting of
any license hereunder. Without limiting the generality of the foregoing, REALTY
shall enter MARKETING or its local designee or cause MARKETING or its local
designee to be entered as a registered user of the Licensed Marks wherever
necessary or desirable, and MARKETING and/or its local designee shall, upon
written request, execute such registered user agreements.
B. Except as provided in Paragraph 11B below with respect to
infringement of the Licensed Marks by third parties, REALTY shall take such
action as is reasonably required or desirable to obtain and maintain appropriate
protection, of the Licensed Marks applicable to MARKETING's business. Except as
provided in Paragraph 11B below, with respect to infringement of the Licensed
Marks by third parties, REALTY shall bear the full cost of all trademark
filings, renewals, registered user entries and actions to protect, perfect or
maintain the Licensed Marks applicable to the Marketing Business, including the
attorney's and local agent's fees, taxes, government filing and other fees.
11. INFRINGEMENT AND OTHER ACTIONS
A. The parties shall promptly notify each other of any claim that is
asserted, and of any action or proceeding that is threatened or commenced, in
which a third party (i) challenges MARKETING's right to use any of the Licensed
Marks, (ii) alleges that any Licensed
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Xxxx infringes the trademark or trade name rights of such third party, or (iii)
in which the revocation, cancellation or declaration of invalidity of any of the
Licensed Marks is sought. REALTY and MARKETING shall consult with respect to
each such claim, action, or proceeding, the assertion of counterclaims thereto
and the settlement thereof and shall jointly defend, in the name of REALTY
and/or in the name of MARKETING, each such action or proceeding that is
commenced. If an action or proceeding brought by a third party concerns the
registrations and/or products of both REALTY and MARKETING, both REALTY and
MARKETING shall be responsible for their pro rata share of legal expenses
incurred in defending such action or proceeding, said pro rata share to be
determined by the proportion of products and/or registrations at issue in the
third party action or proceeding. If there is a disagreement as to the
appropriate pro rata share of legal expenses to be borne by each party, the
matter shall be submitted to arbitration in accordance with Paragraph 15 below.
If the claim or action concerns only products (other than claims pertaining to
the Licensed Marks) and/or registrations of MARKETING, MARKETING shall bear all
legal expenses incurred in defending such actions and proceedings and bear all
damages and costs, if any, recovered by the third party.
B. REALTY and MARKETING will each undertake commercially reasonable
efforts to learn of any unauthorized uses of the Licensed Marks. Promptly upon
receiving notice or knowledge thereof, the parties shall notify each other of
any infringement or other violation by a third party of any of the Licensed
Marks. REALTY and MARKETING shall consult with respect to any such infringement,
and any action or proceeding, including opposition and cancellation actions,
that may be brought against such infringement. REALTY shall exercise its
discretion with respect to taking appropriate action including the bringing of
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actions at REALTY's expense in the name of REALTY and/or MARKETING, but shall
not be obligated to take any action or institute any proceedings. If such action
or proceeding is commenced by REALTY, it shall promptly notify MARKETING and
MARKETING shall cooperate, including the defense of counterclaims, and REALTY
shall bear the expenses of MARKETING except for fees charged by any attorneys
retained solely by MARKETING in connection with such cooperation. MARKETING
shall be given an opportunity to participate with counsel of its choice bearing
its own legal and other costs.
In the event that REALTY determines not to commence such action or
proceeding at its expense, it shall promptly notify MARKETING. MARKETING may
then, at its expense, initiate such action or proceedings in its capacity as a
licensee of such Licensed Marks, provided however, that MARKETING must obtain
the prior written approval of REALTY regarding commencement of such action, such
consent not to be unreasonably withheld. The foregoing notwithstanding, in the
event of any unauthorized use of the Licensed Marks by one of MARKETING'S
sublicensees, MARKETING shall undertake efforts to cause the unauthorized use to
stop. In the event those efforts are unsuccessful, MARKETING shall, at its
expense, initiate such action or proceedings in its capacity as a licensee of
such Licensed Marks with respect to such unauthorized use. REALTY shall
cooperate with MARKETING in any such proceeding or action, including the defense
of any counterclaims, and MARKETING shall bear the expenses of REALTY, except
for fees charged by any attorneys retained solely by REALTY in connection with
such cooperation. REALTY may, if not a party, join in, with counsel of its own
choice, bearing its own legal and other costs. The party bringing any action or
proceeding under this sub-paragraph (B) shall keep the other party informed of
the proceedings and give the other party an opportunity to participate in any
settlements, but the final decision whether to
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settle the action or proceeding shall be made by the party bringing the action
or proceeding, subject to the approval of REALTY (if not a party), such approval
not to be unreasonably withheld. If within ten (10) business days or such
shorter time period as shall be reasonably practicable under the circumstances
REALTY does not approve a proposed settlement recommended by MARKETING in good
faith, REALTY shall be deemed to have taken over responsibility for the action
or proceeding, including subsequent legal fees, awards against REALTY or
MARKETING and expenses relating thereto. No settlement by either party shall
bind the other to make any payment or suffer any loss of existing or future
rights without such other party's consent, which shall not be unreasonably
withheld. Any recovery in such action or proceeding shall be applied first to
reimburse the party or parties for its or their legal expenses in maintaining
such action or proceeding. The excess shall belong to the party maintaining the
action or proceeding at the time such recovery is awarded. If the action is
brought jointly and the recovery is not sufficient to reimburse REALTY and
MARKETING for their legal expenses in such action, the unreimbursed portion of
such legal expenses shall be borne equally by each party.
12. TERM
This License Agreement shall continue in force and effect until fifteen
years from the effective date of this License Agreement unless sooner terminated
as provided for herein. This License Agreement shall be automatically renewed
when and to the extent that the Master Lease is extended. All extended terms of
this License Agreement shall be coterminous with the Master Lease.
13. TERMINATION AND BREACH
This License Agreement shall be terminated upon (a) the voluntary
filing by MARKETING of a bankruptcy petition or an involuntary bankruptcy
proceeding having been
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commenced and not stayed or terminated within 120 days of such commencement or
(b) the termination of the Master Lease in accordance with its terms. REALTY
shall have the right to terminate this License Agreement upon the determination
that a Material Non-Monetary Default has occurred, as provided in this Paragraph
13, and such Material Non-Monetary Default has not been cured by MARKETING
within one year of such determination or within thirty (30) days of such
determination if the breach giving rise to such Material Non-Monetary Default is
the commingling of Branded Gasoline as described in Section 1 of Schedule B
attached hereto. REALTY's only remedy with respect to breaches by MARKETING
other than Material Non-Monetary Defaults shall be to seek damages or injunctive
relief. In the event of any breach or threatened breach of this License
Agreement or a claimed Material Non-Monetary Default, notice shall be given and
the parties shall promptly consult in good faith to cure such breach, with the
party at fault being given an adequate period of time to remedy the matter. If
such breach or claimed Material Non-Monetary Default is not cured within sixty
(60) days of the notice, the matter may be submitted to arbitration in
accordance with Paragraph 15 below, which may include a determination whether a
material breach or Material Non-Monetary Default, as the case may be, has
occurred and/or been cured. In the event the arbitrator determines that a
material breach has occurred, the arbitrator shall not be authorized to
terminate this License Agreement but shall be authorized to issue any other
order or award any other relief deemed appropriate, including, without
limitation, injunctive relief.
14. EFFECT OF TERMINATION
Upon termination of this License Agreement, MARKETING agrees (a) to
immediately discontinue all use of the Licensed Marks and any term confusingly
similar thereto, and to delete the same from its corporate or business name; (b)
to cooperate with REALTY or its appointed agent to apply to the appropriate
authorities to cancel any recording of this License
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Agreement from all government records; (c) to use reasonable best efforts to
destroy or cause the destruction of all printed materials and signs bearing any
of the Licensed Marks; (d) that all rights in the Licensed Marks and the good
will connected therewith shall remain the property of REALTY; (e) to cause all
sublicenses to terminate; and (f) to use reasonable best efforts to cause all
sublicensees to immediately discontinue all use of the Licensed Marks and any
term confusingly similar thereto, and to delete the same from their respective
business names, if applicable. Notwithstanding the foregoing, MARKETING and its
sublicensees may continue to sell all goods bearing any of the Licensed Marks on
packaging in inventory at the time this License Agreement is terminated for a
period of 30 days.
15. ARBITRATION
Any controversy or claim arising out of, or relating to, this License
Agreement or its interpretation, performance or nonperformance or any breach
thereof, which the parties are unable to resolve between themselves, shall first
be submitted to a single arbitrator who shall be knowledgeable in marketing and
trademark matters. The arbitrator shall be mutually appointed by the parties,
and shall not be bound by rules of the American Arbitration Association, but
shall adopt such procedures as shall appear appropriate to expedite decision
making, in order that disputes may be resolved within commercially reasonable
time periods. If the parties cannot agree on the selection of the arbitrator,
the arbitrator shall be selected by The American Arbitration Association. Each
party shall bear its own costs in any such proceeding. The decision of the
arbitrator shall be final and binding upon the parties and may be enforced in
any court of competent jurisdiction.
16. REPRESENTATIONS AND WARRANTIES
REALTY hereby represents and warrants to Marketing that: (a) REALTY has
title to the Licensed Marks in the Licensed Territory free and clear of any
liens and
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encumbrances; (b) to REALTY's knowledge, the Licensed Marks do not infringe any
trademark or other proprietary or intellectual property right of any third
party; (c) REALTY has the right, power and authority to enter into this License
Agreement and to perform all of REALTY's obligations hereunder; (d) REALTY has
not granted to any third party a license for the Licensed Property that would
conflict with the rights granted to MARKETING hereunder; and (e) to REALTY's
knowledge the Licensed Marks are the only trademarks, service marks or trade
names that incorporate the name "Getty" in the Marketing Business.
17. GENERAL PROVISION
A. Assignability: This license may be assigned by either party to the
successor in interest or assignee of substantially all of its business or
assets, or the surviving party of any merger or consolidation to which it is a
party provided that the assignee of any assignment assumes all the assignor's
obligations hereunder. Without the prior written consent of REALTY, MARKETING
shall be permitted to assign this License Agreement to any majority-owned
subsidiary of MARKETING or a wholly-owned subsidiary of Lukoil Americas
Corporation, provided that the Master Lease is also assigned to any such
subsidiary. Apart from any assignment permissible under the preceding sentences
of this paragraph 16A, MARKETING may not otherwise, assign the license granted
herein or the obligations undertaken herein without the prior written consent of
REALTY, which consent shall not be unreasonably withheld or delayed.
B. Notices: Any notice, approval, consent or other communication
required or permitted hereunder shall be in writing and shall be given by
personal delivery or telecopy, with acknowledgement of receipt, or by prepaid
registered mail, return receipt requested, addressed to the party at its address
first above written, to the attention of its General Counsel, or to any other
address that either party may subsequently designate, by notice in accordance
with
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this paragraph. Notices and other communications hereunder shall be deemed
effective one (1) day after dispatch, if personally delivered or telecopied, and
three (3) days after dispatch, if posted, subject to proof of delivery.
C. Waiver: The waiver by any party of a breach or default of any
provision of this License Agreement by the other party shall not constitute a
waiver by such party of any succeeding breach of the same or other provision;
nor shall any delay or omission on the part of either party to exercise or avail
itself of any right, power or privilege that it has or may have hereunder,
operate as a waiver of any such right, power or privilege by such party.
D. Governing Law: This License Agreement shall be governed by, subject
to and construed under the laws of the State of New York.
E. Unenforceability: In the event that any term, clause or provision of
this License Agreement shall be construed to be or adjudged invalid, void or
unenforceable, such term, clause or provision shall be construed as severed from
this License Agreement, and the remaining terms, clauses and provisions shall
remain in effect.
F. Association: The parties, by this License Agreement, do not intend
to create a partnership, principal/agent, master/servant, franchisor/franchisee,
or joint venture relationship, and nothing in this License Agreement shall be
construed as creating such a relationship between the parties. The parties agree
that this License Agreement does not create any franchise relationship between
them that is subject to the provisions of the Petroleum Marketing Practices Act
or any similar state or local government law.
G. Counterparts: This License Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this License Agreement
to be executed as of the day and year first above written.
GETTY PROPERTIES CORP. (f/k/a Getty Realty Corp.)
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
GETTY PETROLEUM MARKETING INC.
By: /s/ Xxx Xxxxxxxxx
--------------------------------------------
Name: Xxx Xxxxxxxxx
Title: Chairman and Chief Executive Officer
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