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EXHIBIT 10.3
TRADEMARK
LICENSE AGREEMENT
This Trademark License Agreement ("License Agreement"),
effective as
of the 31st day of July, 2000, by and between FINAMARK, INC.,
and ATOFINA
PETROCHEMICALS, INC., both Delaware corporations, having offices
at World
Houston Plaza, 15710 JFK Blvd., Houston, Texas 77032 USA
(hereinafter
collectively referred to as "Licensor"), and SWBU, L.P., a
Delaware Limited
Partnership, having offices at 6000 Legacy Drive, Plano, Texas
75204-3601
(hereinafter referred to as "Licensee").
RECITALS
WHEREAS, the ownership of all of the general and limited
partnership
interests of Licensee have been purchased by Alon U.S. General
Partner, L.L.C.
and Alon USA Limited Partner, L.L.C. (the "Alon Partners") from
ATOFINA
Petrochemicals, Inc., pursuant to an LP Interest Purchase
Agreement dated July
31, 2000, between ATOFINA Petrochemicals, Inc., and Sigma
Coatings, Inc., and
the Alon Partners (the "LP Interest Agreement"); and,
WHEREAS, Licensee has pursuant to the closing of the LP
Interest
Agreement, acquired ownership of the Partnership Business as
defined in the LP
Interest Agreement ("Partnership Business") previously operated
by Licensor;
and,
WHEREAS, Licensor owns the federally registered trademarks as
set
forth in the attached Exhibit "A" (the "Licensed Marks"); which
marks are used
by Licensor more particularly in connection with its motor fuel
sales and sales
of other products, throughout the United States as well as
abroad; and,
WHEREAS, Licensor has achieved public acceptance of and a
favorable
reputation and good will throughout the United States and abroad
for the
Licensed Marks; and,
WHEREAS, In connection with the acquisition of all of the
Partnership
Business, and its future operation and development, Licensee is
desirous of
acquiring from Licensor the following rights and interests: (i)
an exclusive
License to use the Licensed Marks in connection with Licensee's
manufacture
and sale (including for resale by distributors) of certain
petroleum products
(the "Licensed Products"), namely gasoline, kerosene, diesel,
and aircraft
fuels, (the "Exclusive Licensed Products"), in the Exclusive
Licensed
Territory, as described in the attached Exhibit "B" (the
"Exclusive Licensed
Territory"); (ii) an exclusive license to use the Licensed Marks
in conjunction
with the manufacture and sale of asphalt in the Exclusive
Licensed Territory,
and in Montana, Idaho, Wyoming, Nevada, North Dakota and South
Dakota, such
exclusivity to extend for as long as Licensee retains an
exclusive license
pursuant to the terms of an Asphalt Technology License Agreement
of even date
between Licensor and ATOFINA Petrochemicals, Inc., herewith (the
"Asphalt
Agreement"); and (iii) a nonexclusive license to use the
Licensed Marks in
connection with Licensee's manufacture and sale of certain
products, including
without limitation but subject to Article 1.G. herein, refinery
product
chemicals (such as benzene and propylene), asphalt and heavier
refined oils (the
"Other Licensed Products") in the Exclusive Licensed Territory
and throughout
the United States (the "Licensed Territory");
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NOW THEREFORE, in consideration of the purchase of the
Partnership
Business, and the mutual covenants and agreements set forth in
this License
Agreement, and other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, Licensor and
Licensee agree as
follows:
1. LICENSE.
A. Commencing on the effective date hereof and continuing
until
terminated as provided herein, Licensor hereby grants
Licensee,
solely in connection with the Licensed Products and pursuant to
the
terms, representations, warranties, covenants, restrictions
and
conditions contained in this License Agreement, the following
rights:
(i) an exclusive license to use the Licensed Marks in connection
with
the manufacture and sale of the Exclusive Licensed Products in
the
Exclusive Licensed Territory; (ii) an exclusive license to use
the
Licensed Marks in connection with the manufacture and sale
of
asphalt in the Exclusive Licensed Territory, and in Montana,
Idaho,
Wyoming, Nevada, North Dakota and South Dakota, such exclusivity
to
extend for as long as Licensee retains an exclusive license
under the
terms of the Asphalt Agreement; and, (iii) a non-exclusive
license to
use the Licensed Marks on Other Licensed Products in the
Exclusive
Licensed Territory and throughout the United States. It is
understood
that, in the event that the Licensee ceases to hold
exclusivity
rights under the Asphalt Agreement in accordance to its
terms,
Licensee shall have non-exclusive rights to sell asphalt under
the
Licensed marks throughout the Licensed Territory.
B. Licensee's rights to make and sell Licensed Products, as
provided
above, shall include all rights deriving therefrom in connection
with
the promotion and distribution of Licensed Products, including
the
right to advertise and promote sales, construct signs, and use
the
Licensed Marks on and in service stations operated in the
Partnership
Business, in at least the same manner as used by Licensor in
connection with its operation of the Partnership Business, prior
to
the date of this License Agreement.
C. Licensor shall not have the right to issue further licenses
to others
nor to make use for itself, of the Licensed Marks in the
Exclusive
Licensed Territory on Exclusive Licensed Products, nor the right
to
license or use any other marks on such products within the
Exclusive
Licensed Territory which a reasonably prudent purchaser of
such
products would find confusingly similar to the Licensed
Marks;
however, Licensor retains the right to use and license the
Licensed
Marks on all products outside the Exclusive Licensed Territory,
and
to license and use the Licensed Marks on all products except
the
Exclusive Licensed Products, and asphalt, inside the
Exclusive
Licensed territory.
D. Licensee shall not be required to pay a fee or royalty for
Licensee's
use of the Licensed Marks. The right and license herein granted
is
fully paid up and shall be royalty-free in that consideration
has
been provided to Licensor pursuant to the LP Interest
Purchase
Agreement dated July 31, 2000 between Licensor and the
owners
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of the general and limited partner interests of Licensee (the
"LP
Interest Agreement"). This is not a franchise arrangement, but
is
merely a license to use the Licensed Marks with respect to
the
Exclusive Licensed Products and Other Licensed Products.
Licensee shall
not be considered an agent or representative of Licensor.
Licensee
shall have no rights of ownership in the Licensed Marks nor
shall
Licensee have the general right to sublicense the Licensed
Marks,
(other than a limited right to sublicense distributors as set
forth in
Paragraph 3.H below), without the prior written consent of
Licensor.
E. Pursuant to the LP Interest Purchase Agreement, Licensor
has
transferred to Licensee Licensor's credit card program and all
branded
wholesaler agreements currently in place.
F. Licensor acknowledges that it does not claim exclusive rights
to the
mere colors used in any of the Licensed Marks and that this
License
Agreement shall not in any way restrict Licensee from using such
colors
in Licensee's service station operations after the term of this
License
Agreement; and furthermore, notwithstanding any provisions
contained
herein to the contrary, those particular Licensed Marks that
are
directed to color combinations, namely U.S. Trademark
Registrations
Nos. 1,642,553; 1,644,206; 1,649,241; and 1,661,952, are
excluded from
the time limitations contained in Sections 2. and 5. herebelow,
and are
licensed on a royalty-free basis, in perpetuity. Should
Licensee
decided to cease use of any one or more of these four marks at
any
time, it will promptly notify Licensor of such decision, well
in
advance of any renewal deadlines for any of said Licensed
Marks.
G. For the purposes of limiting the scope of Other Licensed
Products and
Exclusive Licensed Products, such categories shall specifically
exclude
lubricants, such as motor oil, diesel engine oil, greases,
transmission
fluids, and any other lubricants.
2. LICENSOR'S MARKS.
A. Licensee acknowledges that the Licensed Marks are a valuable
and
important property right owned by Licensor, and are essential to
the
continued good will and reputation developed by Licensor.
Licensee
shall not sell or transfer any products which are manufactured
by
Licensee or supplied to Licensee by third parties, which exhibit
any of
Licensor's Marks unless such products meet the minimum standards
for
Licensor's products as set forth hereinbelow; however, Licensee
may
advertise, utilize and sell other brands of products under its
own name
or names, such uses of other brands inuring (as between Licensor
and
Licensee) entirely to Licensee. Licensee agrees not to claim or
assert
any rights, title or interest in or to the Licensed Marks in any
way
other than its rights under this Agreement.
B. Licensor reserves the right at any time to change or modify
any one or
more of the Licensed Marks for its own use, at its sole
discretion. In
the event Licensor changes any of the Licensed Marks, it will
promptly
communicate such changes to Licensee. Any such changed Licensed
Marks
shall be deemed a Licensed Mark under the terms
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of this Agreement. The decision whether to use any of the
Licensed marks shall be at the sole discretion of Licensee,
and there is no obligation upon Licensee to use any Licensed
Mark or to make changes to any Licensed Mark in use by
Licensee at the time of a change by Licensor.
C. Licensee agrees that, upon Licensor's termination of this
License Agreement in accordance to its terms Licensee will
immediately cease applying the Licensed Marks to its
products,
and will promptly destroy all remaining printed materials
bearing the Licensed Marks, and remove all traces of the
Licensed Marks from its stations and facilities as more
fully
set forth in paragraphs 8 and 9 hereinbelow. However, upon a
termination prior to expiration of this License, Licensee
shall have a reasonable time, not to exceed two (2) years to
dispose of all its signage inventory that display any of the
Licensed Marks.
D. Licensee agrees that, as far as is practical and according
to
normal business customs, it will utilize the symbol RMR in
conjunction with the federally registered trademarks and
service marks contained in the Licensed Marks when used on
Exclusive Licensed Products and Other Licensed Products, on
signage, and in printed materials.
E. Licensor shall be responsible for maintaining the
Licensed
Marks in the United States Trademark Office, including the
costs for registering the Licensed Marks, and renewing the
registrations of the Licensed Marks.
3. IMAGE REQUIREMENTS.
A. Licensee will take all reasonable steps to protect the
good
will associated with the Licensed Marks and, in order to
prevent any deception to the public, will operate its
business
in accordance with the standards and requirements of
quality,
production, appearance, cleanliness, safety, and service as
are from time to time proscribed by Licensor, provided
such provisions are reasonable and do not inflict
unreasonable
costs or expenses on Licensee; but in no event will Licensee
operate according to any standards which are lower than
those
currently being practiced by Licensor. This shall include
keeping the manufacturing, shipping, and retail facilities
of
Licensee in a neat, attractive and safe condition and also
includes making such repairs and renovations as may be
reasonably necessary in order to meet the reasonable
standards
set by Licensor. In addition, Licensee shall at all times
maintain adequate inventories and trained personnel to serve
the public in a manner commensurate with the reputation of
Licensor's Facilities bearing the Licensed Marks. In order
to
ensure common identity of products and services to the
public,
Licensee shall place the Licensed Marks on such products,
buildings, and displays as Licensor is doing in its
commercial
locations, or as Licensor may reasonably direct in writing
to
Licensee.
B. Licensor shall, at its own expense, provide supervisory
assistance to Licensee concerning proper use of the Licensed
Marks and proper quality control as set forth in Paragraph
3.A. above. In order to facilitate such assistance and
further
to ensure compliance with quality specifications and
standards
for use of the Licensed Marks,
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Licensee shall allow representatives of Licensor at reasonable
times,
to enter upon the Licensed Facilities for inspection of the
same, and
upon reasonable written notice will make available to such
representatives any information requested, including the right
to
inspect the premises, the Licensed Products, supplies being used
to
manufacture the Licensed Products, relevant manufacturing
methods, and
to conduct any tests necessary to determine if s
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