EXHIBIT 10.12 AMENDED AND
RESTATED TRADEMARK LICENSE AGREEMENT, DATED NOVEMBER 2, 2000,
BETWEEN GETTY PROPERTIES CORP. AND GETTY PETROLEUM MARKETING
INC.
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 125 Jericho Turnpike,
Jericho, New York 11753; 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 125
Jericho Turnpike, Jericho, New York 11753.
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
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:
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 Paragraph 2C hereof.
D.
“Licensed Marks” means the trademarks, service marks or
trade names listed on Schedule A attached hereto and as
subsequently included pursuant to Paragraph 6C 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
Hudson 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.
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 Paragraph 2C 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-Hudson Valley, New York, in the
Licensed Territory, in each case using any trademark, trade name or
service mark other than the Licensed Marks.
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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.
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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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
