EXHIBIT 10.14
TRADEMARK LICENSE AGREEMENT
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(Unocal Agreement No. 09578)
THIS TRADEMARK LICENSE AGREEMENT (this "Agreement"), effective as of
the Closing Date as defined in the Asset Purchase Agreement dated as of November
23, 1992 (the "Asset Purchase Agreement"), made by and between UNION OIL COMPANY
OF CALIFORNIA, a California corporation doing business as UNOCAL (hereinafter
referred to as "UNOCAL"), and NATIONAL AUTO/TRUCKSTOPS, INC., a Delaware
corporation (hereinafter referred to as "NATIONAL").
WHEREAS, NATIONAL and UNOCAL have entered into the Asset
Purchase Agreement; and
WHEREAS, each of UNOCAL and NATIONAL is obligated under the Asset
Purchase Agreement to enter into this Agreement; and
WHEREAS, UNOCAL is the owner of certain marks (including without
limitation "UNOCAL", "76" and "UNOCAL 76") when used as registered or
unregistered trademarks and/or trade names in various fields, including the
field of manufacturing and marketing various petroleum and related products and
services; and
WHEREAS, UNOCAL is also the owner of certain registered and/or
unregistered product trademarks and/or service marks used in connection with the
manufacture and sale of various petroleum and related products and services; and
WHEREAS, UNOCAL has established and maintains very high standards
for its products and services and in its business practices, with the result
that it has achieved excellent customer acceptance of its products and services;
and
WHEREAS, NATIONAL desires to acquire the right to use the aforesaid
marks, product trademarks and service marks in connection with the marketing of
petroleum and related products and the manufacture of fuel products; and
WHEREAS, it is very important to both parties that UNOCAL continue
to maintain its high standards in its related activities, and that NATIONAL
conform to such standards in its activities hereunder, in order to ensure that
both parties benefit from the substantial name recognition and customer loyalty
which stems from those high standards;
NOW, THEREFORE,, in consideration of the mutual covenants,
agreements and undertakings contained or referred to in this Agreement, the
parties hereby agree as follows:
ARTICLE ONE - DEFINITIONS
1.1 DEFINITIONS - Each capitalized term used herein but not
otherwise defined herein shall have the meaning assigned to it in the Asset
Purchase Agreement. In addition, as used herein:
(a) "APPROVED PRODUCTS" shall mean those Products which meet
or exceed the specifications for that type of Product as established by UNOCAL
as of the date hereof (subject to any changes necessary to comply with
applicable law or which represent changes in specifications of a product
actually marketed by UNOCAL or its Affiliate in the relevant marketing area or
changes agreed to by the parties) and any additional products designated as
Approved Products by agreement of the parties.
(b) "APPROVED SERVICES" shall mean Services which meet or
exceed the standards for that type of Service established as of the date hereof.
(c) "AUTO/TRUCKSTOP" shall mean those fuel facilities within
the Territory which include the features set forth therefor in Schedule II, or
are excluded from certain requirements or restrictions by the provisions of
Schedule II.
(d) "BLS INDEX", as used with respect to a particular calendar
year, shall mean the average of the monthly indices for the consecutive twelve
[12] month period ending October 31 of the preceding calendar year from the
"Producers Price Index of Industrial Commodities" as published by the Bureau of
Labor Statistics, United States Department of Labor, using the year 1982 as the
base index equal to 100. If , at any time, the above index should cease to be
published, then another suitable index shall be substituted upon notice by
UNOCAL to NATIONAL.
(e) "BLS FACTOR" is a number equal to (a) the BLS Index for
the calendar year in which a payment is actually made, divided by (b) the BLS
Index for the twelve (12) month period ending October 31, 1992.
(f) "DESIGNATED FACILITY" shall mean an Auto/Truckstop
and/or a Fuel Stop.
(g) "EXISTING FACILITY" shall mean an Auto/Truckstop or Fuel
Stop facility of UNOCAL or its Reseller listed on Schedule A.
(h) "FUEL STOP" shall mean those fuel facilities within the
Territory which include the features set forth therefor in Schedule II, or are
excluded from certain requirements or restrictions by the provisions of Schedule
II.
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(i) "INTERSTATE HIGHWAY" shall mean a highway which is or
becomes part of the United States interstate highway system.
(j) "MARKS" shall mean those registered or unregistered marks
which are identified in Schedule I attached hereto.
(k) "MISCELLANEOUS MARKS" shall mean all marks and service
marks, registered and unregistered, utilized by UNOCAL in connection with its
auto/truckstop network prior to the Closing Date; provided, that Miscellaneous
Marks shall not include (i) the Marks, (ii) "Pure", "Firebird" or "Protech",
(iii) the Service Marks and (iv) any marks or service marks conveyed to National
pursuant to the Asset Purchase Agreement.
(l) "NATIONAL FACILITY or UNOCAL FACILITY or UNO-VEN FACILITY"
shall mean a retail fuel facility of NATIONAL, UNOCAL or The UNO-VEN Company,
respectively, or its Reseller at which one or more of the Marks and/or Service
Marks is used.
(m) "PAD V AREA" shall mean the states of Arizona, California,
Nevada, Oregon and Washington.
(n) "PRODUCTS" shall mean petroleum and related products
(including without limitation petroleum fuels and lubricants, automobile and
other vehicular parts, accessories, as well as clothing, recreational gear,
stationery, hardware supplies, toiletries, notions, and the like), but excluding
petrochemicals (such as solvents, polymers and the like, agricultural chemicals,
specialty chemicals, needle coke, and the like).
(o) "RESELLERS" shall mean third parties (such as
distributors, marketers, operators and retail dealers) licensed by UNOCAL or
sublicensed by NATIONAL to use the Marks or which are otherwise permitted to
sell Unocal Branded Products or provide Unocal Branded Services.
(p) "SERVICE MARKS" shall mean those registered or
unregistered service marks which are identified in Schedule I.
(q) "SERVICES" shall mean services provided to customers by a
party hereto or its Resellers in connection with the marketing of Unocal Branded
Products, including without limitation vehicle repair and maintenance services,
car washing, towing, food services, shower facilities, and the like.
(r) "STANDARD METROPOLITAN STATISTICAL AREA" shall mean an
area (i) which comprises a city with a population of at least 50,000, or (ii)
which contains an urbanized area of at least 50,000 within a total metropolitan
area population of at least 100,000. In addition to the county containing the
central city, a
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Standard Metropolitan Statistical Area may include additional counties that have
close economic and social ties to the core county.
(s) "TERRITORY" shall mean the area within one (1) mile of the
center line of an Interstate Highway located in the lower 48 contiguous states
of the United States of America.
(t) "UNOCAL BRANDED PRODUCT" shall mean any Product which
bears or is marketed using any of the Marks.
(u) "UNOCAL BRANDED SERVICES" shall mean any Service or which
is marketed using any of the Marks or any of the Service Marks.
(v) "UNO-VEN AREA" shall mean the area listed as such in
Schedule III.
(w) "UNO-VEN AUTO/TRUCKSTOP AREA", as used with respect to a
UNO-VEN Facility which uses one or more of the Marks, shall mean any location
within the UNO-VEN Area which:
(i) is on or along an Interstate Highway, and (A) is
less than two (2) miles from a UNO-VEN Area Existing Facility, or (B) is less
than twenty-five (25) miles from a UNO-VEN Area Existing Facility (if such
UNO-VEN Facility dispenses diesel fuel, but through no more than two (2) hoses),
or (C) is less than one hundred (100) miles from a UNO-VEN Area Existing
Facility (if such UNO-VEN Facility dispenses diesel fuel through more than two
(2) hoses); or
(ii)is on or along any street, highway or road that
intersects an Interstate Highway at the location of a UNO-VEN Area Existing
Facility (an "Intersecting Road"), and (A) is less than one (1) mile from a
UNO-VEN Area Existing Facility, or (B) is less than twenty-five (25) miles from
a UNO-VEN Area Existing Facility (if such UNO-VEN Facility dispenses diesel
fuel, but through no more than two (2) hoses), or (C) is less than fifty (50)
miles from a UNO-VEN Area Existing Facility (if such UNO-VEN Facility dispenses
diesel fuel through more than two (2) hoses);
provided, however, that notwithstanding clauses (ii)(A) through (ii)(C) above,
no UNO-VEN Facility shall be considered to be located within the UNO-VEN
Auto/Truckstop Area if such UNO-VEN Facility primarily serves customers arriving
from or traveling on or to an Interstate Highway adjacent to or parallel to the
Interstate Highway on which the UNO-VEN Area Existing Facility is located. For
purposes of this definition, (i) the above mileages shall be measured from the
nearest point of access for the UNO-VEN Area Existing Facility to the nearest
point of access for the UNO-VEN Facility in question along the shortest
connecting roadway between the two; and (ii) a given location shall be
considered to be "on or along" an Interstate
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Xxxxxxx xx Xxxxxxxxxxxx Xxxx if it is located (A) directly on or alongside such
Interstate Highway or Intersecting Road, or (B) within a radius of two (2) miles
from the point of access of the Interstate Highway or Intersecting Road to such
location.
(x) "UNO-VEN Area Existing Facility" shall mean a facility
which is listed on Schedule IV.
ARTICLE TWO - LICENSE
2.1 LICENSE GRANT/EXTENSION TO RESELLERS - Subject to the terms
hereof, UNOCAL hereby grants to NATIONAL in the Territory (i) an exclusive
license to use the Marks, the Miscellaneous Marks and/or Service Marks in
connection with marketing Approved Products and Approved Services through
Designated Facilities (both Auto/Truckstops and Fuel Stops) (ii) a license to
affix the Marks and the Miscellaneous Marks to fuel products which are Approved
Products marketed and sold through Designated Facilities, and (iii) the right
and power to sublicense others to use the Marks, the Miscellaneous Marks and/or
Service Marks in connection with the marketing of Approved Products and Approved
Services through Designated Facilities, all subject to the following
limitations:
(a) WITHIN THE UNO-VEN AREA: The licenses granted above shall
apply only to UNO-VEN Area Existing Facilities. However, NATIONAL shall have the
right to extend the licenses granted above to replacement facilities in the
UNO-VEN Area provided that (i) the total number of Designate Facilities using
the Marks and operating within the UNO-VEN Area at any one time shall not exceed
fifty-two (52), (ii) no replacement Designated Facility shall be located so as
to place an existing UNO-VEN Facility within the UNO-VEN Auto/Truckstop Area,
and (iii) the products an services sold through such replacement Designated
Facility shall not differ materially from those of the existing Designated
Facility being replaced. NATIONAL shall give UNOCAL one hundred twenty (120)
days' prior written notice of its intention to build any replacement Designated
Facility, which notice shall be accompanied by sufficient information to
describe the parameters of the replacement facility and the operation thereof.
Otherwise, NATIONAL must first obtain the prior written approval of The UNO-VEN
Company before operating any other Designated Facility using the Marks within
the UNO-VEN Area. NATIONAL shall submit a branding request to UNOCAL which will
forward it to The UNO-VEN Company for its approval.
(b) WITHIN THE PAD V AREA (EXCLUDING CALIFORNIA: The licenses
granted above may be extended to new Auto/Truckstops without prior approval of
UNOCAL. The licenses granted above may be extended to new Fuel Stops, but only
with the prior written approval of UNOCAL. Notwithstanding the foregoing, prior
written approval of UNOCAL is not required if, after such extension of a
license, the total number of NATIONAL Facilities within the PAD V Area
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(excluding California) does not exceed five (5). The licenses granted above may
not be extended to any other facilities other than as indicated above, nor may
they be extended to any facility (i) if such facility is located in a Standard
Metropolitan Statistical Area, it is located closer than a one (1) mile radius
from a UNOCAL Facility then in existence or (ii) if such facility is not located
in a Standard Metropolitan Statistical Area, it is located closer than a five
(5) mile radius from a UNOCAL Facility then in existence.
(c) WITHIN CALIFORNIA: The licenses granted above may be
extended to new Designated Facilities within California only with the prior
written approval of UNOCAL. Notwithstanding the foregoing, prior written
approval of UNOCAL is not required if, after such extension of a license, the
total number of NATIONAL Facilities within California does not exceed the total
number of NATIONAL Facilities in California as of the Closing Date, provided
that such new Designated Facility is not located within one (1) mile of a UNOCAL
Facility then in existence, measured along the Interstate Highway or any street,
highway or road upon which such UNOCAL Facility is located.
Any and all contracts extending NATIONAL's license to use the Marks and/or
Service Marks to its Resellers, shall be in writing and in a form which has
first been approved by UNOCAL in writing, which approval shall not be
unreasonably withheld. UNOCAL shall have the right, at its expense, upon
reasonable notice, to inspect and copy all fully signed extensions or contracts.
No other right or license, express or implied, is granted under this Agreement
by either party hereto for the use of any trademark, service xxxx or trade name.
2.2 FUTURE MARKS. Notwithstanding the last sentence of Section 2.1
hereof, in the event UNOCAL in the future uses or licenses any marks or service
marks in the Territory not identified in Schedule I (other than Pure, Firebird
and Protech), the parties agree to negotiate in good faith a nonexclusive
license with respect to the use of such marks or service marks in connection
with Designated Facilities.
2.3 MANUFACTURE OF UNOCAL BRANDED PRODUCTS. UNOCAL shall provide to
NATIONAL the formulations of, and specifications for (including, without
limitation, specifications relating to product quality, distributing and
storing), all fuel products sold as Unocal Branded Products which were being
sold by UNOCAL or its Resellers in the Territory at any time during the six
month period immediately prior to the date of this Agreement and will continue
to provide any updated formulations and specifications which UNOCAL may
establish for such fuel products during the term of this Agreement. UNOCAL
hereby authorizes NATIONAL to make and/or have made and to affix the appropriate
Xxxx(s) to such fuel products which qualify as Approved Products pursuant to the
license granted in Section 2.1, above. UNOCAL agrees to make available to
NATIONAL and/or its Resellers all other Approved Products for resale pursuant to
one or more separate agreements.
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2.4 REGISTRATION OF MARKS. Where permitted or required by law,
NATIONAL shall be registered as a permitted user of the Marks and Service Marks,
and any use of the same by NATIONAL prior to or after such registration shall
inure to the benefit of UNOCAL. NATIONAL and UNOCAL will cooperate with each
other in obtaining and maintaining registration of the Marks and the Service
Marks, as well as such other marks and service marks as UNOCAL may reasonably
request, in the Territory or elsewhere, including execution of any documents
necessary for such registration and/or for registration of NATIONAL as a
permitted user thereof.
2.5 TITLE. No ownership interest in the Marks or in the Service
Marks is conveyed to NATIONAL hereunder; all title in and to the same shall
remain with UNOCAL. NATIONAL agrees that it will not acquire (by use,
registration or otherwise) any trade name, trademark or service xxxx which is
confusingly similar to or likely to conflict with the Marks and/or the Service
Marks. UNOCAL agrees that NATIONAL shall have the right to use its own name to
indicate that NATIONAL is the manufacturer or packager of any Products or
Services manufactured or packaged by it for sale.
2.6 MANNER OF USE OF TRADEMARKS AND SERVICE MARKS. NATIONAL agrees
that it shall use the Marks and the Service Marks, as the case may be, (a)
solely upon and/or in connection with the operations of Designated Facilities
and/or the sale of Approved Products and/or Approved Services pursuant to the
license granted in Paragraph 2.1 hereof, and (b) solely in strict compliance
with instructions supplied from UNOCAL to NATIONAL from time to time consistent
with UNOCAL's own use of the same, concerning the manner of use of such Marks
and Service Marks (including but not limited to UNOCAL's manual concerning the
standards for signs, colors, appearance, etc. of the same, and UNOCAL's manual
concerning packaging and label requirements), and (c) only during the term of
this Agreement. Notwithstanding the foregoing, UNOCAL may (in the sole
discretion of its product specification committee) elect to waive minor
variations from UNOCAL's specifications for Approved Products on a lot by lot
basis. In the event that UNOCAL changes the specifications with respect to the
manner of use of any Xxxx or Service Xxxx during the term of this Agreement,
NATIONAL shall be permitted up to one [1] year after such change to complete
compliance with such change at all Designated Facilities.
ARTICLE THREE - BRAND MAINTENANCE
3.1 MARKETING RESPONSIBILITIES. Each party's responsibilities
concerning the marketing of Products and Services using the Marks and/or the
Service Marks, during the term of this Agreement, shall be as follows:
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(a) UNOCAL shall not have any responsibility for promoting and
maintaining customer acceptance of any Unocal Branded Products and Unocal
Branded Services sold by NATIONAL and/or its Resellers.
(b) CUSTOMER RELATIONS. NATIONAL shall ensure that all of the
Designated Facilities of NATIONAL and/or its Resellers shall, in accordance with
the standards established by UNOCAL from time to time, provide courteous and
efficient service, use fair and honest selling techniques, and provide equitable
treatment of all of their customers, in order to serve adequately and promptly
the customer's needs for Products and Services. This shall include, but not be
limited to, serving the public with care, prudence, good judgment, skill and
courtesy, and refraining from using any dishonest, or fraudulent selling
practices.
(c) RESPONSES TO CUSTOMER COMPLAINTS. The frequency and
handling of customer complaints will be an important measure of NATIONAL's
maintenance of customer acceptance. Accordingly, NATIONAL and its Resellers
shall develop and follow a procedure (reasonably acceptable to UNOCAL) for
documenting and resolving customer complaints, which procedure shall be at least
as favorable to the customer as UNOCAL's corresponding procedure as of the date
hereof. NATIONAL's customer complaint procedure shall include benchmarks for
minimum standards with respect to customer complaint levels. NATIONAL shall
maintain records of each customer complaint received (including the details of
the nature of the complaint and of the resolution of the complaint) for UNOCAL's
inspection (in a non-interfering manner during customary business hours) and
determination of whether or not NATIONAL and its Resellers are in compliance
with the provisions of this Section.
(d) UNIFORM WARRANTY OFFERING. The parties agree that each of
them and their Resellers will offer substantially uniform warranties and/or
guarantees with respect to the marketing of Unocal Branded Products within the
Territory. Any modifications of such warranties and/or guarantees shall be made
only by mutual agreement of NATIONAL and UNOCAL; PROVIDED, HOWEVER, that the
parties shall use their best efforts to offer comparable warranties and
guarantees within the Territory. Further, each of the parties and their
Resellers shall act cooperatively and promptly to resolve any warranty or
guarantee claims presented to them by a customer of any of them, without regard
(as far as such customer is concerned) of which of them supplied the Product in
question. The responding party or Reseller and the party or Reseller supplying
the Product in question will then negotiate an equitable compensation for the
responding party or Reseller's efforts.
(e) QUALITY CONTROL. In order for UNOCAL to be able to ensure
that the Products marketed by NATIONAL and/or its Resellers through Designated
Facilities or as Unocal Branded Products, conform to the specifications for
Approved Products of that type, NATIONAL will permit, and shall require its
Resellers to permit, an authorized representative of UNOCAL to enter NATIONAL
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its contractors' and/or its Resellers' premises (in a non-interfering manner
during customary business hours) where such Products are manufactured, stored,
shipped and/or marketed, so as to inspect the facilities, processes, containers
and materials used by NATIONAL, its contractors and/or Resellers in
manufacturing and/or marketing such Products, and to procure one or more samples
thereof for UNOCAL's testing for conformance to such specifications. The product
specifications shall be those established as of the date of this Agreement.
NATIONAL may request a change to any specification by reasonable prior written
notice, subject to the written approval of UNOCAL, which approval shall not be
unreasonably withheld. Similarly, NATIONAL shall permit an authorized
representative of UNOCAL to enter NATIONAL and/or its Resellers' premises (in a
non-interfering manner during customary business hours) so as to inspect the
Unocal Branded Services provided for conformance to the specifications for
Approved Services of that type.
(f) FIVE STAR PROGRAM. As a condition of the license terms
granted hereunder, NATIONAL shall at all times during the term of this Agreement
implement a Five Star quality program substantially as offered by UNOCAL as of
the date of this Agreement and as is described in Schedule V, attached hereto.
(g) INDUSTRY OR OTHER STANDARDS. Neither NATIONAL nor its
Resellers shall claim that any of Unocal Branded Products or Unocal Branded
Services which are marketed by it meet any industry or other performance
standards unless (i) UNOCAL has first given NATIONAL UNOCAL's written
concurrence therein, or (ii) UNOCAL's specification sheets or promotional
materials expressly indicate that such products or services meet such industry
or other performance standards.
(h) COMPLIANCE WITH THE LAW. NATIONAL shall use its best
efforts to ensure that all operations at the Designated Facilities of NATIONAL
and/or its Resellers which are reasonably related to the use of any or all of
the Marks and/or Service Marks are in compliance with all laws, ordinances and
regulations of the relevant governmental authorities, particularly the Clean Air
Act, the Occupational Safety and Health Act, and other regulations governing the
storage, dispensing, and sale of Products or the providing of Services.
3.2 DEBRANDING OF DESIGNATED FACILITIES. NATIONAL shall establish
and maintain a level of standards for the Designated Facilities of NATIONAL and
facilities of its Resellers which are (i) at least equal to the general level of
standards UNOCAL required for its own similar facilities as of the date hereof,
or (ii) which meet or exceed the standards of the average competitor in the
market relevant to such facility. In the event that any particular Designated
Facility of NATIONAL or its Resellers fails to meet such standards, and fails to
remedy such failure as promptly as practicable after NATIONAL's receipt of
written notice from UNOCAL, or in the event such a Designated Facility
repeatedly fails to meet such standards (even if it endeavors to remedy the
individual failures), UNOCAL may
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demand that NATIONAL initiate and diligently pursue proceedings to debrand such
facility, and NATIONAL agrees that it shall, as promptly as the law allows,
undertake whatever steps are required to lawfully remove, or cause to be
removed, all Marks and/or Service Marks from such facility and the Unocal
Branded Products and Unocal Branded Services marketed at or from such facility.
ARTICLE FOUR - FEES AND REPORTING
4.1 FEES. In consideration of and in recognition of the significant
benefits which will accrue to the operations of the Designated Facilities of
NATIONAL and its Resellers, and to NATIONAL and its Resellers' other marketing
of Unocal Branded Products and Unocal Branded Services pursuant to the license
granted in Section 2.1 hereof, NATIONAL agrees that it shall pay to UNOCAL a fee
of Six Hundred Thousand United States Dollars [$600,000 U.S.] per year. The
above amount as calculated for each calendar year shall be adjusted annually by
multiplying said amount by the BLS Factor. If this Agreement becomes effective
as of a date other than January 1, or terminates as of a date other than
December 31, then for the calendar year in which this Agreement becomes
effective or terminates, as the case may be, the fee shall be determined by
multiplying a fraction, the numerator of which shall be the number of days the
Agreement is in effect during the calendar year and the denominator of which
shall be the total number of days in the calendar year (either 365 or 366),
times the amount that otherwise would be payable for the full calendar year
pursuant to this Section 4.1.
4.2 REPORTS AND PAYMENTS. On or before the last day of each calendar
quarter (whether March 31, June 30, September 30, or December 31), NATIONAL
shall render to UNOCAL a payment equal to one-fourth (1/4) of the annual fee due
for the year in which such calendar quarter falls as set forth in Section 4.1
above; provided, however, that if payment pursuant to the foregoing provision
would result in an underpayment of the total fees due for a year, then the
December 31 payment shall be increased to include all amounts due and unpaid for
the year. Any amount due under this Section that is not paid as of the due date
shall bear interest at the Reference Rate set forth in the Asset Purchase
Agreement.
ARTICLE FIVE - INDEMNIFICATION
5.1 NATIONAL LIABILITY. Except to the extent provided in any other
agreement between the parties and subject to the provisions of this Article
Five, from and after the date hereof NATIONAL agrees to pay and to indemnify
fully, hold harmless and defend UNOCAL and its Affiliates, agents, officers,
directors, partners, employees, servants, consultants and assigns from and
against any and all claims based upon allegations of and/or damages (whether
based on negligent acts or omissions, statutory liability, strict liability or
otherwise), but excluding any claims
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based upon allegations of or damages arising out of any UNOCAL Liability, as
defined hereinbelow, arising out of:
(a) any Product or Service sold or otherwise transferred or
furnished to any member of the public by NATIONAL or its Resellers;
(b) any act or omission by NATIONAL or its Resellers in
connection with the lawful exercise of any phase of their respective businesses;
(c) any breach of this Agreement by NATIONAL; and
(d) any violation of any valid and applicable law, statute,
regulation or ruling issued by any governmental agency in the proper exercise of
its authority, or willful misconduct by NATIONAL or its Resellers.
Each of the liabilities described in Section 5.1(a)-(d) shall be defined as a
"NATIONAL Liability".
5.2 UNOCAL LIABILITY. Except to the extent provided in any other
agreement between the parties and subject to the provisions of this Article
Five, from and after the date hereof UNOCAL agrees to pay and to indemnify
fully, hold harmless and defend NATIONAL and its Affiliates, agents, officers,
directors, partners, employees, servants, consultants and assigns from and
against any and all claims based upon allegations of and/or damages (whether
based on negligent acts or omissions, statutory liability, strict liability or
otherwise), but excluding any claims based upon allegations of or damages
arising out of any NATIONAL Liability, as defined hereinabove, arising out of:
(a) any Product or Service sold or otherwise transferred or
furnished to any member of the public by UNOCAL or its Resellers, either
directly or through NATIONAL;
(b) any act or omission by UNOCAL or its Resellers in
connection with the lawful exercise of any phase of their respective businesses;
(c) any breach of this Agreement by UNOCAL; and
(d) any violation of any valid and applicable law, statute,
regulation or ruling issued by any governmental agency in the proper exercise of
its authority, or willful misconduct by UNOCAL or its Resellers.
Each of the liabilities described in Section 5.2(a)-(d) shall be defined as a
"UNOCAL Liability".
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5.3 CLAIMS. Any party making a claim under this Article Five shall
follow the method of asserting claims set forth in Section 7.3 of the Asset
Purchase Agreement.
ARTICLE SIX - CONFIDENTIALITY
6.1 CONFIDENTIAL INFORMATION. NATIONAL agrees that it will maintain
in confidence and prevent the duplication or disclosure to others of UNOCAL's
Confidential Information, except that NATIONAL, to the extent necessary for its
manufacture, use and/or sale of Unocal Branded Products, may disclose UNOCAL's
Confidential Information to its suppliers or NATIONAL's Resellers under written
obligations of confidentiality at least as stringent as those contained herein.
NATIONAL agrees that it shall not use UNOCAL's Confidential Information for any
purpose other than as specifically contemplated hereunder. For purposes of this
Agreement, the term "Confidential Information", shall mean confidential
information disclosed directly or indirectly by UNOCAL hereunder, including, but
not limited to, product information disclosed pursuant to Sections 2.4 and 3.1,
except:
(a) information which at the time of its disclosure is in the
public domain; or
(b) information which after disclosure hereunder becomes part
of the public domain by publication or otherwise through no fault of NATIONAL
(but only after it is published or otherwise becomes part of the public domain);
or
(c) information which NATIONAL can show was, at the time of
its receipt of the same hereunder, either developed by and/or for NATIONAL or
previously received by the recipient from a party who had a lawful right to
disclose the same and who did not require NATIONAL to hold the same in
confidence; or
(d) information which was received by NATIONAL after the time
of its disclosure hereunder from a third party who had a lawful right to
disclose the same to NATIONAL and who did not require NATIONAL to hold the same
in confidence.
For the purposes of this Section 6.1, specific technical information shall not
be deemed to be within any of the above four exceptions merely because it is
embraced by more general information within one of said exceptions; nor shall a
combination of features be deemed to be within any of said exceptions merely
because the individual features, separately considered, are within said
exceptions.
6.2 Nothing in this Agreement shall prohibit NATIONAL from
disclosing any Confidential Information as specifically required by law;
including, but
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not limited to, the federal securities laws, or as required by the rules and
regulations of any securities exchange on which any securities or NATIONAL may
be listed, provided that such disclosure is made so as to secure any
confidentiality protection available under the applicable law.
ARTICLE SEVEN - TERM AND TERMINATION
7.1 TERM. This Agreement shall become effective as of the date first
written above and shall remain in full force and effect for a period of ten [10]
years from the Closing Date and thereafter for successive terms of two (2) years
each; PROVIDED, HOWEVER, that by written notice to the other party, either party
may terminate this Agreement as follows: (i) as of the end of the initial ten
(10)-year term, by such a notice delivered within eight (8) years of the Closing
Date, or (ii) as of the end of any subsequent two (2)-year term, by such a
notice delivered on, or prior to, the commencement date of that term.
Notwithstanding the above, this Agreement may also be terminated as follows:
(a) by written mutual consent of the parties at any time;
(b) by UNOCAL, upon ten [10] days' prior written notice, if
NATIONAL is in default of a material provision hereunder and fails to correct
such default within ninety [90] days of such written notice of default;
PROVIDED, HOWEVER, that if the action of any one or more of NATIONAL's Resellers
results in a default by NATIONAL, NATIONAL's commencement and diligent pursuit
of action against such Reseller(s) shall satisfy its obligation to correct such
default for the purposes of this Section 7.1;
(c) By NATIONAL, upon 180 days' prior written notice.
7.2 RENEWAL. If UNOCAL has delivered a termination notice pursuant
to Section 7.1 (i) or (ii) above, NATIONAL may at any time during the final year
of the initial ten (10)-year term or subsequent two (2)-year term, as the case
may be, request that the Agreement be renewed. UNOCAL agrees to negotiate in
good faith the terms on which such renewal would be granted.
7.3 CONTINUING OBLIGATIONS. Upon and after any termination of this
Agreement:
(a) Each party shall remain obligated to make any payment that
became due to the other hereunder prior to termination.
(b) Liabilities of any party arising from any act, default or
occurrence prior to termination shall remain with such party.
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(c) The parties' rights and obligations under Sections 2.4,
2.5, 4.3 and Articles 5 and 6 shall survive termination of this Agreement.
7.4 DISPOSAL OF INVENTORY FOLLOWING TERMINATION. In the event that
NATIONAL or its Resellers, upon the termination or expiration of this Agreement
for any reason, have in inventory any Approved Products bearing the Marks which
have been manufactured but not sold, NATIONAL or said Reseller may sell such
Approved Products for a period of six [6] months following such termination or
expiration without having to remove such Marks from such Approved Products.
Thereafter, NATIONAL must remove the Marks from all of its and its Resellers'
Products.
7.5 OTHER OBLIGATIONS ON TERMINATION. Upon termination of this
Agreement, NATIONAL shall:
(a) immediately take all steps to cease using the Marks and/or
the Service Marks (including but not limited to removing the same from
packaging, advertising, commercial registers and directories, telephone
directories, and similar listings) as promptly as possible, which obligation
shall include a positive duty to remove the Marks and Service Marks from
Designated Facilities of NATIONAL and its Resellers, and from any unsold Unocal
Branded Products or Unocal Branded Services (other than as provided in Section
7.4 hereof);
(b) not thereafter use the Marks or the Service Marks, or any
confusingly similar xxxx, trademark or service xxxx, in any manner or form
whatsoever in the conduct of NATIONAL's or its Resellers' business (other than
as authorized in Section 7.4 hereof), unless specific prior written permission
to do so has been given by UNOCAL; and
(c) within thirty (30) days, pay to UNOCAL all amounts
remaining due under Section 4.1 for the calendar year in which the Agreement
terminates.
7.6 CONSENT TO INJUNCTIVE RELIEF. If NATIONAL or its Resellers fail
for any reason to remove the Marks or the Service Marks as provided herein or
otherwise to observe the covenants set forth in this Agreement, NATIONAL agrees
and hereby specifically consents to, and shall require its Resellers to agree
and consent to, UNOCAL's obtaining a decree of a court having suitable
Jurisdiction ordering NATIONAL and/or its Resellers to immediately comply with
such covenants. Said consent is based on an acknowledgment by NATIONAL and its
Resellers that monetary payments alone would be an inadequate remedy for UNOCAL.
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ARTICLE EIGHT - RIGHT OF ASSIGNMENT
8.1. ASSIGNMENT. This Agreement is personal to NATIONAL, and
NATIONAL may not assign any of its rights or benefits or delegate any of its
duties or obligations under this Agreement, and any attempted assignment or
delegation without the express prior written consent of UNOCAL shall be null,
void and without effect. The preceding sentence shall not limit the rights
granted in Section 2.1(iii).
8.2 SUCCESSORS AND ASSIGNS. The rights, benefits, duties and
obligations of each party hereto shall inure to the benefit of, and be binding
upon, any successors, assigns or delegates consented to by UNOCAL.
8.3 OBLIGATIONS, SURVIVE ASSIGNMENT. Any assignment of this
Agreement by NATIONAL shall provide that NATIONAL shall not be relieved of its
obligations hereunder with respect to the confidentiality, duplication, use
and/or export of UNOCAL's Confidential information.
ARTICLE NINE - NOTICES
9.1 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given (i) if personally
delivered, when so delivered, (ii) if mailed, two Business Days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to the intended recipient as set forth below, (iii) if
given by telex or telecopier, once such notice or other communication is
transmitted to the telex or telecopier number specified below and the
appropriate answer back or telephonic confirmation is received, provided that
such notice or other communication is promptly thereafter mailed in accordance
with the provisions of clause (ii) above or (iv) if sent through a reputable
overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent:
If to UNOCAL:
FOR ALL PAYMENTS:
Union Oil Company of California
000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: X.X. Xxxxxxxxx
Telecopy: (000) 000-0000
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FOR ALL OTHER COMMUNICATIONS:
Union Oil Company of California
X.X. Xxx 00
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxx 00000
Attn: Chief License Counsel (for legal notices)
Telecopy: (000) 000-0000
If to NATIONAL:
National Auto/Truckstops, Inc.
c/o Unocal Petroleum Products and
Chemicals Division
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
The Clipper Group, L.P.
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
Either party may give notice, request, demands, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless it actually is
received by the individual for whom it is intended. Either party may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth.
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ARTICLE TEN - MISCELLANEOUS
10.1 NO THIRD PARTY RIGHTS. This Agreement is intended to be solely
for the benefit of the parties hereto and is not intended to confer any benefits
upon, or create any rights in favor of, any person other than the parties
hereto, except as expressly provided to the contrary elsewhere in this
Agreement.
10.2 GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with, and governed by, the laws of the State of California without
reference to its conflicts-of-law principles.
10.3 ENTIRE AGREEMENT. This Agreement (including any Exhibits and
Schedules hereto) sets forth the entire understanding and agreement between the
parties as to the matters covered herein and supersedes and replaces any prior
understanding, agreement or statement of intent, in each case, written or oral.
10.4 WAIVERS AND AMENDMENTS. No waiver shall be deemed to have been
made by either party of any of its rights under this Agreement unless the same
shall be in a writing that is signed on its behalf by its authorized officer.
Any such waiver shall constitute a waiver only with respect to the specific
matter described in such writing and shall in no way impair the rights of the
party granting such waiver in any other respect or at any other time. This
Agreement shall not be amended or modified except by an instrument in writing
signed by the party against whom enforcement is sought.
10.5 UNO-VEN TRADEMARK LICENSE AGREEMENT. Unocal represents and
warrants to National that nothing in this Agreement conflicts with or causes a
breach or violation of the Trademark License Agreement dated December 1, 1989,
as amended, between The UNO-VEN Company and UNOCAL ("the UNO-VEN Trademark
License Agreement"). Without the prior consent of NATIONAL, UNOCAL shall not
amend, modify, waive or grant any consents with respect to any of the summarized
terms of the UNO-VEN Trademark License Agreement.
10.6 HEADINGS. The heading contained in this Agreement are for
convenience of reference only and do not qualify or affect in any way the
meaning or interpretation of this Agreement.
10.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute a single instrument.
10.8 NOT A FRANCHISE AGREEMENT. This Agreement does not create, nor
is it intended by the parties to create, a "franchise" as contemplated by the
Petroleum Marketing Practices Act, 15 U.S.C. ss. 2801 et seq.
17
IN WITNESS WHEREOF, this Agreement has been executed and delivered
as of the date first written above.
UNION OIL COMPANY OF CALIFORNIA
By: /s/ X.X. Xxxxxxxxx
----------------------------------------------
Name: X.X. Xxxxxxxxx
--------------------------------------------
Title: Vice President
-------------------------------------------
Date:
--------------------------------------------
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxxxx
--------------------------------------------
Title: Vice President and Chief Financial Officer
-------------------------------------------
Date:
--------------------------------------------
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