Branded Jobber Contract - BP Products North America Inc. and MAPCO Express Inc.
Region
EASTERN
(BP LOGO) BRANDED JOBBER CONTRACT
(RETAIL)
DOCUMENTS CHECKLIST
(1-2003)
[X] Contact Renewal
[ ] Trial Franchise
Date
DECEMBER 15, 2005
Jobber Sales Manager
PAUL SPARROW
Jobber Number
_______________
Document Name Document Number
------------- ----------------------
[X] Branded Jobber Contract (Retail) BJC(R) (1-2003)
[X] Attachment A to Branded Jobber Contract (Retail) - Products, BJC(R)-A (10-2001)
Quantities, Approved Retail Sites and Jobber's Designated
Terminals
[X] Attachment A-1 to Branded Jobber Contract (Retail) - Annual BJC(R)-A1 (10-2001)
Minimum Volumes
[X] Trade Signage Agreement (Jobber) BJC(R)-SIGNS (10-2001)
[X] Unlimited Guaranty BJC(R)-GUAR (12-2001)
[X] Revised Summary of Title I of the Petroleum Marketing Practices BJC(R)-PMPA (10-2001)
Act
[ ] Trial Franchise Rider to Branded Jobber Contract Retail BJC(R)-TF (10-2001)
[ ] Acknowledgement of Trial Franchise (Jobber) BJC(R)-ATF (10-2001)
[X] Minutes of a Joint Special Meeting of the Stockholders and BJC(R)-CORP (10-2001)
Board of Directors of Corporation (Jobber)
[ ] Certification of Unanimous Action of Partnership (Jobber) BJC(R)-PART (10-2001)
[ ] Certification of Unanimous Action of Limited Liability Company BJC(R)-LLC (10-2001)
(Jobber)
LIST ALL MISCELLANEOUS DOCUMENTS/ATTACHMENTS, TO THE BRANDED JOBBER CONTRACT,
BELOW:
[X] SIDE LETTER
[X] RIDER TO BRANDED JOBBER CONTRACT
[X] BRANDED JOBBER CONTRACT - LETTER AMENDMENT
[ ] ___________________________________________________________________________
Each of the documents are to be properly executed and returned to the Regional
Office for further handling.
----------------------------------------
BP Signature
Enclosures
[***] CONFIDENTIAL TREATMENT REQUESTED
-1-
<PAGE>
(BP LOGO) JOBBER NUMBER
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(State "Trial Franchise," If applicable)
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BRANDED JOBBER CONTRACT
(RETAIL)
BJC(R) (1-2003)
This branded jobber contract ("Contract"), dated DECEMBER 15, 2005, is by and
between BP Products North America Inc. and hereinafter referred to as "Company,"
and with a principal office located at
28100 TORCH PARKWAY, WARRENVILLE, II, 60555
(State complete company address including street address, city and zip code)
and MAPCO EXPRESS, INC. ("Jobber")
(State exact legal name of Jobber)
a CORPORATION with its principal offices located at
(State type of legal entity: corporation, partnership, LLC, sole
proprietorship, etc.)
830 CRESCENT CENTRE DRIVE, SUITE 300, FRANKLIN, TN 37067
(State complete address of Jobber's principal office including street
address, city and zip code. A post office box is not sufficient.)
NOW, THEREFORE, Company and Jobber, intending to be legally bound, agree to the
following:
1. TERM. The term covered by this Contract will be for a period of 3 year(s)
beginning on DECEMBER 15, 2005 and ending on December 14, 2008, unless
terminated earlier by law or by the terms of this Contract or unless extended by
Company upon written notice. If the franchise relationship underlying this
Contract continues for any reason beyond the expiration date indicated above,
this Contract will be extended until terminated or until superseded by a now
branded Jobber contract, if offered.
2. PRODUCTS, QUANTITIES AND APPROVED RETAIL SITES.
(A) PRODUCTS AND QUANTITIES TO BE PURCHASED/RESALE FROM APPROVED RETAIL SITES
(ATTACHMENT A). Company agrees to sell and Jobber agrees to purchase and receive
Company's currently offered and available branded petroleum products as
determined and designated by Company ("Products"), and as more fully and
specifically set forth in Attachment A, a copy of which is attached to and
incorporated in this Contract. Jobber agrees to purchase these Products ratably
in the quantities set forth in Attachment A within every continuous 12-month
period, or any portion thereof, during the term of this Contract, Attachment A
will also set forth, among other things, the retail sites approved under
paragraph 6(a) below from which the Products purchased from Company may be
resold ("Approved Retail Sites"). Products purchased under this Contract will
not be resold, under Company's Trade Identities (as defined in paragraph 5(a)
below), from any location unless and until said location is set forth on
Attachment A and/or unless and until said location has been approved pursuant to
paragraph 6(a) below. Jobber will advise Company immediately if it is no longer
able to supply an Approved Retail Site listed in Attachment A. The cessation or
reduction in supply of Products to an Approved Retail Site will not reduce the
Jobber's annual Product purchase requirements set forth on Attachment A, without
Company's written consent.
(B) ANNUAL DEVELOPMENT OF ATTACHMENT A. Jobber will provide the following
information to Company between January 1 and February 15 of each Contract year
of the Contract term, or at any other times requested by Company, for the
purpose of developing each and every Attachment A for each Contract year of the
Contract term: the quantities of all Products supplied to and resold during the
prior calendar year, by Product grade, at each Approved Retail Site. Company may
also require that Jobber provide an estimate of any additional quantities of
Products that it expects to purchase and supply during any Contract year, by
Product grade, for any and all sites that are newly approved during said year.
Company may use this estimate to amend or develop a new Attachment A. In the
case of a trial franchise, Jobber will provide, 90 days prior to the beginning
of the Contract term, its estimate of the quantities of all Products that it
expects to purchase and supply during the Contract year, by Product grade, at
each of its newly Approved Retail Sites.
[***] CONFIDENTIAL TREATMENT REQUESTED
Page 1
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(C) ANNUAL MINIMUM QUANTITIES (ATTACHMENT A-1). In addition to the other terms
and conditions contained in the Contract pertaining to Jobber's obligation to
purchase certain quantities of Products, including but not limited to those
obligations contained in Attachment A. Jobber will be required to purchase a
minimum quantity of Products during each continuous 12-month period of the
Contract term, as determined and designated by Company and as more fully set
forth in Attachment A-1, a copy of which is attached to and incorporated in this
Contract.
(D) COMPANY'S DIRECTLY-SUPPLIED SITES. Jobber will not sell, supply or deliver
any Products purchased under this Contract to any retail location that is
directly-supplied by Company or that is designated by Company as a
directly-supplied location.
3. PRICE OF PRODUCTS, JOBBER'S DESIGNATED TERMINALS, TITLE AND RISK OF LOSS.
(A) PRICES. The price which jobber will pay for each Product sold under this
Contract will be Company's jobber buying price, as recorded at the applicable
Company business unit office, regional office of such other office as Company
may designate from time to time, in effect on the data and at the time of sale
from the respective terminals designated by Company ("Jobber Buying Price"). All
terminals where Jobber will take delivery of the Products sold under this
Contract will be determined and designated by Company ("Jobber's Designated
Terminals") and set forth in Attachment A, as amended from time to time. In
addition to the applicable Jobber Buying Price, Jobber will also pay all other
applicable charges, including but not limited to those charges categorized in
paragraph 25 below.
(B) TITLE AND RISK OF LOSE. Title and risk of loss to all Products sold to
Jobber under this Contract will pass to Jobber f.o.b. Jobber's Designated
Terminals at the time loading into Jobber's transport equipment, including any
contract carrier equipment engaged by Jobber.
4. PAYMENT TERMS.
(A) CREDIT. Nothing in this Contract will be constructed as obligating Company
to extend credit to Jobber. In the event Company does extend credit to Jobber,
such extension of credit will be subject to Company's established credit terms
as amended from time to time and to the following requirements Including but not
limited to: submitting on annual financial statement and executing an unlimited
guaranty, Jobber will also provide Company with a letter of Credit, deposit or
other forms of security, along with interim financial statements upon Company's
request. Company reserves the right to change its credit terms at any time
either for the class of trade generally or for Jobber individually and, among
other things, to require that Jobber pay for all Products and services under
this Contract - in advance or at the time of delivery - in cash, in certified
funds or via wire transfer. In no instance will the terms of any sale discounts
apply to taxes, inspection fees and the like. One of more incidents of failure
by Jobber to timely or fully pay according to established credit terms,
including a check or electronic funds transfer that is presented and dishonored
for nonsufficient or uncollected funds; or failure to supply required or
requested financial information or security: financial distress or a
determination by Company that Jobber may be unable to timely or fully pay in the
future, will entitle Company to suspend deliveries, Impose pre-pay or
cash-on-delivery ("COD") terms, require additional security and/or terminate
this Contract, in addition to exercising any other rights Company may have under
this Contract or at law.
(B) JOBBER PAYMENTS MADE VIA EFT. Jobber will pay for all Products, open account
items and all other items and services under this Contract via electronic funds
transfer ("EFT"), or by such other methods as Company may require. Jobber will
establish an account with a financial institution, on terms acceptable to
Company, that provides EFT services and will authorize Company to initiate
transfers of funds between Jobber's account and Company's accounts for payment
of any and all amounts due to Company under this or any other Contract. Jobber
will provide Company with all information and authorization necessary to debit
and credit Jobber's account via EFT. These drafting authorities will remain in
full force and effect during the entire term of the Contract giving Company the
right, at all times, to withdraw funds for sums owed to Company from Jobber's
account, via EFT.
(C) FINANCE AND SERVICE CHARGES. Company will, at its election, assess finance
charges on all amounts not paid by Jobber on the not due date. Finance charges
will be assessed monthly at an annualized rate of either 8% or 2% over the
highest Prime Rate published in the Wall Street Journal ("Money Rates" section)
on the last business day of the month preceding the assessed charge, whichever
rate is higher. Company reserves the right to change this finance charge rate at
any time without prior notice to Jobber. Company will also impose a service
charge for each check and/or EFT which is dishonored for nonsufficient or
uncollected funds, whether or not subsequently paid by Jobber. All charges
assessed by Company hereunder will be collected by withdrawing funds from
Jobber's account via EFT.
(D) COMPANY INVOICES. Other than those disputes governed by paragraph 20 below.
Jobber must notify Company in writing of disputes regarding any charges or other
items on any Company Invoice or statement within 60 days after Jobber's receipt
of same. If Jobber fails to dispute a charge or other item within this 60 day
period, the invoice or statement in question will be presumed to be accurate.
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FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
5. COMPANY'S TRADE IDENTITIES AND IMAGE.
(A) USE OF TRADE IDENTITIES GENERALLY. Jobber will be permitted to use, and will
be permitted to allow the jobber-dealers and sub-jobbers it supplies with
Products purchased under this Contract ("Jobber-Marketers") to use - on a
non-exclusive, limited, site-specific basis at Approved Retail Sites - certain
and specifically designated Company's trademarks, service marks, trade names,
brand names, trade dress, logos. color patterns, color schemes, design schemes,
Insignia, image standards and the like (individually and collectively. "Trade
Identities ") in connection with the advertising, distribution and/or resale of
the Products authorized by, supplied by and/or purchased from Company under this
Contract. Company's Trade Identities may include those in use at the time this
Contract is executed and may also include, in the Company's sole discretion,
those Trade Identities that the Company may subsequently develop, adopt or
otherwise obtain through licenses or other means. Company will retain at all
times, the right to determine which Trade identities will be used or displayed,
and the manner of their use or display, at an Approved Retail Site and the right
to restrict the use or display of certain Trade Identities to certain Approved
Retail Sites (or to certain locations at an Approved Retail Site). Company will
also have the right, at any time and for any reason, to revoke its approval to
use certain or all of its Trade Identities at certain or all Approved Retail
Sites (or at certain locations at an Approved Retail Site)-- as further provided
in paragraphs 5(e) and 6(b) below -- and, where applicable and in its sole
discretion, to substitute any other Trade Identities in their place.
(B) USE OF TRADE IDENTITIES GOVERNED BY THIS CONTRACT, RELATED AGREEMENTS AND
RELATED GUIDELINES, ETC, The permission to the Company's Trade Identities will
be governed by the terms and conditions of this Contract and related agreements,
including all attachments, schedules, appendices and amendments attached to and
incorporated in those agreements, in addition, Company's Trade Identities will
only be used in accordance with - and only if Jobber compiles with - the
guidelines, policies, procedures, programs, requirements, specifications,
standards (both operational and visual) and strategies issued by Company, as
amended from time to time.
(C) USE OF TRADE IDENTITIES ON SIGNAGE. Jobber will be permitted to acquire and
display approved signage bearing Company's Trade Identities, in connection with
the advertising, distribution and/or resale of Products under this Contract, on
an Approved Retail Site-specific basis. Under no circumstances will Jobber be
allowed to relocate signage bearing Company's Trade Identities to another
location without Company's consent. Jobber will provide Company with a list of
all signage bearing Company's Trade Identities in Jobber's possession and/or
control and the location of said signage, upon Company's request. In addition to
the terms and conditions of this Contract, the use of Company's Trade Identities
on all signage and the use of that signage generally will be governed by a Trade
Signage Agreement (Jobber), a copy of which is attached to and incorporated in
this Contract.
(D) USE OF TRADE IDENTITIES IN CONJUCTION WITH THE SALE REPERESENTATIVE AMOUNTS
OF CERTAIN PRODUCTS. At all times at each Approved Retail Site, including each
Jobber-Marketer Approved Retail Site, Jobber will offer for sale, or cause to be
offered for sale, representative amounts of each grade of Company-designated
Products that are necessary, In Company's discretion, to satisfy public demand
("Representative Amounts"). If Jobber ceases to offer or maker available one or
more of these designated Products in the required Representative Amounts at an
Approved Retail Site, Jobber will cease using of displaying, or cause its
Jobber-Marketers to cease using or displaying, Company's Trade Identities at
that site.
(E) USE OF TRADE IDENTITIES IN CONJUCTION WITH COMPANY'S RETAIL MARKETING
STRATEGIES AND DEVELOPMENT PLANS, IMAGE PROGRAMS AND STANDARDS. At each Approved
Retail Site, including each Jobber-Marketer Approved Retail Site, Jobber will
comply with, and ensure that all of its Jobber-Marketers comply with, Company's
then current image programs and standards (both operational and visual), as
amended from time to time. As part of this image compliance requirement, Jobber
will ensure that no items of a pornographic or sexually explicit nature are
displayed, used, stored, offered, rented or sold at any Approved Retail Site.
For purposes of this Contract, items of this nature will include, but will not
be limited to, pornographic, sexually explicit or so-called "adult:" magazines;
videotapes; compact disks; digital video disks; or like materials. Jobber also
agrees that its right to use Company's Trade Identities under this Contract will
be subject to Company's then current retail marketing strategies and development
plans, as amended from time to time. If an Approval Retail Site no longer
conforms or fails to conform to Company's then current retail marketing
strategies and development plans, as amended from time to time, or to Company's
then current programs or standards (both operational and visual), as amended
from time to time, Company may revoke its prior approval to use certain or all
of its Trade Identities at the Approved Retail Site, in which case Jobber will
cease using or displaying, or cause its Jobber-Marketer to cease using or
displaying, certain or all of Company's Trade Identities at that site, whichever
the case may be.
(F) USE OF TRADE IDENTTIIES ON JOBBER'S PROPERTY INCLUDING WEBSITES. Jobber will
be permitted to display Company's Trade Identities in conjunction with Jobber's
websites, business forms, advertising materials, structures, vehicles, and other
Jobber property directly related to the advertising, distribution and/or resale
of products under this Contract. Jobber may only do so, however, if the words
"Products Distributor" or "Products Jobber" appear immediately adjacent to the
displayed location of said Trade Identities. Company will have the right to
approve such use of its Trade Identities in advance and to revoke its approval
at any time and for any reason. If Company exercises its right to revoke,
terminate or nonrenew or if the property in question is sold or otherwise
transferred, Jobber will immediately cease using or displaying, or cause any
third party to immediately cease using or displaying - or will immediatly
remove, cover or oblilerate, or cause any third party to immediately remove,
cover or obliterate -- the Trade Identities on the property in question.
PAGE 3 - BRANDED JOBBER CONTRACT (RETAIL) BJC(R)(1-2003)
FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
(G) MISUSE OF TRADE IDENTITIES WITH JOBBER'S COMPANY NAME OR JOBBER'S OWN TRADE
IDENTITIES. Jobber will not use any of Company's Trade Identities as part of
Jobber's company name. If Jobber has formed a company or has acquired a company
that uses any of Company's Trade Identities as part of Jobber's company name, it
will be required to amend its articles of incorporation or organization so as to
delete Company's Trade Identities form its company name. Likewise, Jobber will
not use any of Company's Trade Identities as part of Jobber's own trade
identities. If Jobber has developed trade Identities or has acquired trade
identities that incorporate any of Company's Trade Identities as part of
Jobber's trade identities, it will be required to delete Company's Trade
Identities from its own trade identities.
(H) MISUSE OF TRADE IDENTITIES IN CONNECTION WITH CERTAIN SALES. Jobbers will
not use any of Company's Trade Identities in connection with the advertising,
distribution and/or resale of: (1) any dilution or adulteration of a Product
authorized by, supplied by and/or purchased from Company; (2) any mixture or
blend of Products authorized by, supplied by and/or purchased from Company,
without Company's prior written consent (which consent may be revoked at any
time and for any reason); (3) any Product authorized by, supplied by and/or
purchased from Company but sold under an incorrect or inappropriate Company Mark
or sold through unapproved or disapproved packages, containers or equipment; or
(4) any product not authorized by, supplied by and/or purchased from Company.
(I) COMPANY'S RIGHT TO AUDIT. To verify Jobber's performance under this Contract
and related agreements or as part of a Company compliance program, as issued and
amended from time to time, Company will have the right to; audit records in the
possession or control or Jobber or its Jobber-Marketers: inspect all Approved
Retail Sites; and sample all Products in the possession or control of Jobber
and/or its Jobber-Marketers. Jobber will cooperate fully and completely
throughout the audit and Inspection processes, and ensure that its
Jobber-Marketers cooperate fully and completely. If Jobber designates its
records as confidential, Company will not voluntarily disclose sold information
to anyone without Jobber's written consent, except to those Company employees
and agents with a need to know.
(J) DISCONTINUED USE OF TRADE IDENTITIES UPON EXPIRATION OR TERMINATION OF THIS
CONTRACT. Upon the expiration or termination of this Contract, for any reason,
Jobber will Immediately cease using or displaying and cause its Jobber-Marketers
to cease using or displaying, Company's Trade Identities and will dispose of all
signage in accordance with the Trade Signage Agreement. All remaining evidence
of Company's Trade indentifies will be immediately obliterated by Jobber. If
Jobber does not immediately cease using or displaying and cause its
Jobber-Marketers to cease using or displaying, Company's Trade Identities,
Company will have the irrevocable right to use any means necessary to remove,
cover or obliterate the Trade Identities, Including entering upon the relevant
promises or filing a legal action, with Jobber's full and complete cooperation
and at Jobber's expense. Jobber will reimburse Company for all expenditures
incurred in removing Company's Trade Identities hereunder.
6. SITE APPROVAL.
(A) USE OF COMPANY'S TRADE IDENTITIES AT EACH APPROVED RETAIL SITE. It is and
will be an on-going condition of the right to use Company's Trade Identities
under this Contract, that Jobber must first obtain Company's prior written
consent for each and every location that Jobber desires to identify with
Company's Trade Identities, including all Jobber-Marketer retail locations. The
approval and designation as an Approved Retail Site will be within Company's
sole discretion and will be based on certain factors and upon certain criteria
relative to the site, including but not limited to: current or proposed
appearance; current or proposed Trade Identities to be used: location of
underlying real estate: ownership status of underlying real estate; current or
proposed mode of operation; current or proposed offer, current or projected
volume; current or proposed hours of operation, current or proposed training
capabilities; current or proposed improvements, facilities or equipment:
enrollment or participation in the Company's "mystery" shop program; Company's
then current image programs and standards (both operational and visual), as
amended; or Company's then current or amended retail marketing strategies and
development plans in the vicinity of the proposed location, or elsewhere. For
purposes of emphasis and elaboration, but without limitation, Company will have
the right to require gasoline dispensers to be covered by approved canoples and
to be equipped with approved card readers. Company will also have the right to
determine the appropriate geographic density and channel-of-trade mix for all
retail locations identified and/or to be identified with Company's Trade
Identities. It will be a further requirement that Jobber has used and/or is
using its best efforts to develop, operate and/or supply its then currently
Approved Retail Sites. Company's right of approval hereunder will also apply to
those situations where Jobber desires to supply a retail location that is then
currently identified with Company's Trade Identities but supplied by another
branded jobber or other supplier of Company's Products. Company will retain, at
all times, the right to determine or the right to approve which Trade Identities
will be used or displayed, and the manner of their use or display, at an
Approved Retail Site and the right to restrict the use or display of certain
Trade Identities to certain Approved Retail Sites (or to certain locations at an
Approved Retail Site)
(B) SITE APPROVAL REVOKED. Company will have the right to revoke its prior
approval identifying an Approved Retail Site if the site no longer conforms to
or fails to conform to: the terms or conditions of this Control and related
agreements; the Company's then current image programs or standards (both
operational and visual), as amended from time to time; the Company's then
current retail marketing strategies and development plans, as amended from time
to time; or to any relevant law or regulation. Company will also have the right
to revoke its prior approval Identifying an Approval Retail Site based upon, but
not limited to the factors and criteria set forth in paragraph 6(a) above. For
purposes of emphasis and elaboration, but without limitation, Company will have
the right to revoke its prior approval Identifying an Approved Retail Site if -
after 6
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FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
months from Company's request - the site is not identified with approved Trade
identities or the gasoline dispensers at the site are not covered by approved
canopies or said dispensers are not equipped with approved card readers. If
Company revokes, its approval, Jobber will immediately cease using or
displaying, or cause its Jobber-Marketer to cease using or displaying, Company's
Trade identities at that retail location. Company will also have the right, at
any time and for any reason, to revoke its prior approval to use certain or all
of its Trade Identitites at certain or all Approved Retail Sites (or at certain
locations at an Approved Retail Site) and, when applicable and in its sole
discretion, to substitute any other Trade Identities in their place.
(C) JOBBER'S RIGHT TO SUPPLY DISAPPROVED OR REVOKED SITES. Nothing in this
Contract will prevent Jobber from supplying a disapproved retail location or a
retail location at which Company's approval has been revoked provided that
Jobber does not permit Company's Trade Identities to be displayed at that
location.
(D) DISCONTINUED USE OF TRADE IDENTITIES AT RETAIL LOCATION. Company will have
the right to cause any and all signage bearing Company's Trade Identities to be
removed, covered or obliterated, from any disapproved retail location or from
any retail location at which Company's approval has been revoked. If Jobber does
not immediately cease using or displaying, or cause its Jobber-Marketer to cease
using or displaying certain, or all of Company's Trade Identities after
Company's request to do so, Company will have the irrevocable right to use any
means necessary to remove, cover or obliterate the Trade Identities, including
entering upon the relevant premise or filing a legal action, with Jobber's
complete cooperation and at Jobber's expense. Jobber may be required to
reimburse Company for all expenditures incurred in removing its Trade Identities
hereunder.
(E) ALL APPROVED RETAIL SITES LISTED ON ATTACHMENT A. In accordance with the
terms of this Contract, all Approved Retail Sites that are operated and/or
supplied by Jobber will be listed on Attachment A. Jobber will provide Company,
among other things, with the complete address for each Approved Retail Site
listed. All retail locations at which Company's approval has been revoked will
be removed from Attachment A.
7. MARKETING RESPONSIBILITY AT APPROVED RETAIL SITES.
(A) JOBBER TO USE BEST EFFORTS TO MARKET AT EACH APPROVED RETAIL SITE. Jobber
will use its best efforts to market, or cause to market, the Products covered by
this Contract at each and every Approved Retail Site and within the trade area
of each and every Approved Retail Site.
(B) MARKETING WITHIN THE TRADE AREA OF AN APPROVED RETAIL SITE NOT EXCLUSIVE.
This Contract does not confer upon Jobber exclusive marketing rights and/or
trademark rights within any trade areas. Company will, at all times and for any
reason, maintain its sole and unlimited right to make other provisions for the
marketing of its Products and services under any of its Trade Identitites within
the trade areas of Jobber's Approved Retail Sites, or elsewhere, including but
not limited to: establishing its own directly-operated, contractor-operated, or
commission marketer retail locations; establishing its own directly-supplied
reseller/dealer retail locations; and/or approving retail locations to be
operated or supplied by other jobbers.
8. PAYMENT METHODS INCLUDING CREDIT CARDS.
(A) COMPANY'S PAYMENT METHODS PROGRAM. Company may from time to time endorse and
sponsor specific proprietary and third party payment methods including certain
credit cards, charge cards, fleet cards, debit cards, pre-paid cards and the
like (individually or collectively, "Payment Methods") for use at all specified
retail locations selling Company's Products. Company will not be obligated to
sponsor or participate in any specific Payment Methods program, or may withdraw
its sponsorship of, or participation in, any such program at any time, or may
condition any sponsorship or participation upon payment of service and equipment
fees by Jobber. If Company does sponsor a Payment Methods program ("Payment
Methods Program"). Jobber agrees that Company's proprietary Payment Methods and
all third party Payment Methods specified by Company will be accepted at each
payment point (Including card-readers-in-dispensers, if present) at each of
Jobber's Approved Retail Sites, including each payment point at each
Jobber-Marketer Approved Retail Site. Jobber will strictly comply with the
operating rules, terms and conditions of any Payment Methods Program that
Company may sponsor, by and through any manuals, bulletins, or other forms of
written or electronic communications, as issued and as amended from time to
time. Company will have the right to charge back sales transaction amount--made
by Jobber's customers or by customers of its Jobber-Marketers-for a period of 6
months from the date of a transaction. Jobber must maintain, or cause to
maintain, a record of each transaction (including the actual draft generated at
the time of sale) for a period of 6 months.
(B) ELECTRONIC POINT-OF-SALE EQUIPMENT, SOFTWARE AND FIRMWARE. Jobber will
comply with Company's point-of-sale policies and guidelines, as amended from
time to time, and will equip, or cause to equip, all of its Approval Retail
Sites with electronic point-of-sale ("EPOS") equipment approved by Company for
processing transactions on Company's Payment Methods network. All such
Company-approved EPOS equipment will, at all times, be connected to Company's
Payment Methods network and will be operated using Company's most current
Payment Methods software and firmware. Jobber will install Company's most
current software and firmware within 6 months of its release. Unless otherwise
specified, no right, title or ownership interest in any software or firmware
will be transferred to Jobber. Jobber acknowledges that the software and
firmware and the specifications are proprietary products of Company or its
vendors. Under no circumstances will Jobber reverse engineer, decompile,
disassemble or otherwise attempt to derive the source code for the software or
firmware or alter its intended functionality. Within 6 months of Company's
request, Jobber will pay any and all additional or now costs or fees
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[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
associated with the operation of the EPOS equipment, including but not limited
to costs associated with satellite connections, access and telecommunications
and upgrading the EPOS equipment or related software or firmware.
9. ADDITIONAL JOBBER RESPONSIBILITIES.
(A) BULK PLANTS. Jobber will operate, where necessary, one or more bulk storage
plants so as to efficiently perform its supply and distribution functions under
this Contract.
(B) TRANSPORT AND TANK TRUCKS. Jobber will operate or cause to operate, where
necessary. a sufficient number of transport and/or tank trucks so as to
efficiently perform its delivery functions under this Contract.
(C) DELIVERIES FOR COMPANY. From time to time, Company may request that Jobber
make deliveries, from Jobber's inventories of Products purchased under this
Contract, to other Company customers. If Jobber elects to make any such
deliveries, Company will pay Jobber a mutually agreed upon handling fee.
(D) JOBBER MARKET PLANS. As part of Company's Jobber Market Planning Process, as
amended from time to time, Jobber will provide Company -- at a minimum -- with a
3-year jobber market plan, in a format provided by or acceptable to Company.
Jobber will update its jobber market plan each year, also in a format provided
by or acceptable to Company. If Jobber designates its jobber market plan as
confidential, Company will not voluntarily disclose said information to anyone
except to those Company employees and agents with a need to know.
(E) EMERGENCY NOTIFICATION PROCEDURES. From time to time Company may provide
Jobber with notification procedures to be utilized if and when emergency
situations or other situations occur at any Approved Retail Site and/or if and
when such situations directly or indirectly involve the Trade Identities being
utilized by Jobber. For purposes of this Contract, reportable situations may
include, but may not be limited to: death or serious injury; transport or tank
truck accidents; Product spills or other incidents of significant environmental
impact and other significant events as defined from time to time. Jobber agrees
that it will comply with said procedures, if and when provided, and if and when
a defined, reportable situation occurs.
(F) COMMUNICATION WITH COMPANY VIA THE INTERNET. Within 6 months of Company's
request. Jobber must be equipped with e-mail capability and access to the
Internet so that Company may communicate and exchange information with Jobber
via the Internet and via the Company's Intranet, extranet and/or web pages.
(G) CUSTOMER INQUIRIES AND COMPLAINTS. Jobber will develop a program designed to
respond to and resolve customer inquiries and complaints within no less than 10
business days of receipt. This program will apply to inquiries and complaints
regarding an Approved Retail Site, including its Jobber-Marketer Approved Retail
Site, that are either received directly by Jobber or those referred to Jobber by
Company.
(H) MYSTERY SHOP PROGRAM. If Company sponsors or conducts a "mystery" shop audit
program, Jobber will enroll and participate in such a program at each Approved
Retail Site selected by Company. Jobber will promptly take corrective measures
at each and every Approved Retail Site that scores below the target score
established by Company for the marketing area that includes said Approved Retail
Site. If Jobber desires to use its own "mystery" shop service, said vendor must:
(1) be approved by Company in writing; (2) use Company's approved "mystery" shop
forms; and (3) provide Company with audit results promptly, using said forms.
Company reserves the right to withdraw its approval of any "mystery" shop
service at any time and for any reason.
(I) BRANDED LUBRICANTS AND MOTOR OILS. Jobber will use its best efforts to offer
for sale Representative Amounts of certain and specifically designated
lubricants and motor oils (including certain and specifically designated
Castrol(R)-branded and BP Visco Select(R)-branded lubricants and motor oils) at
each of its Approved Retail Sites, including its Jobber-Marketer Approved Retail
Sites.
10. JOBBER AS INDEPENDENT BUSINESS/SALE OF COMPETITIVE PRODUCTS.
(A) INDEPENDENT BUSINESS. Company and Jobber are and will remain separate and
independent businesses. None of the provisions of this Contract are intended to
provide a party hereto with any management direction or control over the other
party's business, business operations or employees. Jobber has no authority to
act, or employ any person to act, as an agent for or on behalf of Company.
Jobber will not place or allow the placement of any signage upon or near any
premises owned, leased, operated or supplied by Jobber which might indicate that
Company is the owner or operator of the business conducted upon said premises.
(B) SALE OF COMPETITIVE PRODUTS. Subject to paragraph 5(h) above and all other
applicable provisions of the Contract, nothing in this Contract will prevent
Jobber from purchasing, supplying or reselling the products of Company's
competitors. In the event that Jobber does purchase and resell competitive-brand
products, it will comply with the applicable terms and conditions of this
Contract and all applicable guidelines, policies, procedures, requirements,
specifications and standards issued by Company, as amended from time to time,
including any policies pertaining to the proper handling of non-Company motor
fuels.
PAGE 6 - BRANDED JOBBER CONTRACT (RETAIL) BJC(R) (1-2003)
FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
11. JOBBER-MARKETERS.
(A) ACTS AND OMISSIONS OF JOBBER-MARKETERS IMPUTED TO JOBBER. Subject to
paragraph 26 below, Jobber will inform those Jobber-Marketers permitted to use
Company's Trade Identities of the specific terms and conditions of this Contract
and all related agreements, including all attachments, schedules, appendices and
amendments attached to and incorporated in those agreements which pertain to the
use of Company's Trade Identities and related matters. In addition, Jobber will
inform those Jobber-Marketers of the specific guidelines, policies, procedures,
programs, promotions, requirements, specifications, standards (both operational
and visual) and strategies periodically issued by Company, as amended from time
to time, which pertain to the use of Company's Trade Identities and related
matters. Notwithstanding the Jobber's best efforts to ensure its
Jobber-Marketers' compliance, and regardless of any contractual relationship
between Jobber and its Jobber-Marketer, any act or omission by a Jobber-Marketer
that, if committed or omitted by Jobber would place Jobber in violation of this
Contract or related agreements, will be imputed to Jobber and will give Company
the right, in its sole discretion, to take appropriate action against Jobber up
to and including site approval revocation or termination of this Contract.
(B) ACTIONS AGAINST JOBBER-MARKETERS. Nothing in this Contract will prevent or
preclude Company from exercising any legal or equitable rights against a
Jobber-Marketer directly, separate and apart from any actions taken against
Jobber.
12. RIGHT OF FIRST OFFER AND RIGHT TO PURCHASE.
(A) COMPANY'S RIGHT OF FIRST OFFER/JOBBER'S COMPANY-BRANDED ASSETS. Jobber will
not sell, lease or otherwise transfer - or allow the sale, lease or transfer -
of any assets, or portions thereof, in its possession or control, or in the
possession or control or its subsidiaries, affiliates or principals as the case
may be, which are related to this Contract and which, at any time during the
franchise relationship, have been identified with or by Company's Trade
Identities including but not limited to Jobber-owned or leased; Approved Retail
Sites; other retail locations, bulk plant and terminal facilities; transport and
tank trucks; and all related real and personal property, contract rights, or
good will ("Jobber's Company-Branded Assets") without first giving Company a
right of first offer to purchase or otherwise acquire the assets in the manner
described in paragraph 12(b) below ("Right of First Offer").
(B) COMPANY'S RIGHT OF FIRST OFFER/INFORMATION JOBBER MUST PROVIDE. To satisfy
its obligations under paragraph 12(a) above, Jobber will promptly submit to
Company written notice and a term sheet ("Term Sheet") containing the following
items: (i) the Jobber's Company-Branded Assets intended to be sold, conveyed or
otherwise transferred; (ii) the amount and nature of consideration sought in the
proposed transaction, along with all payment terms; and (iii) all other
substantive and commercially reasonable terms intended to be included in the
proposed transaction.
(C) COMPANY'S RIGHT OF FIRST OFFER/60 DAYS TO EXERCISE. Upon Jobber's submission
of a Term Sheet, and any additional Information, facts or data requested by
Company to evaluate the Right of First Offer, Company will thereafter have 60
days within which to exercise its Right of First Offer, by written notice. If
Company exercises its Right of First Offer, the applicable parties will have an
additional 30 days to develop and execute a contract for the sale, conveyance or
transfer of the Jobber's Company-Branded Assets in question ("Purchase and Sale
Agreement"). Closing will be held at a time and place agreeable to Company and
Jobber, but no later than 60 days after a Purchase and Sale Agreement has been
signed by the parties.
(D) COMPANY'S RIGHT OF FIRST OFFER/RIGHT TO SELL IF COMPANY DOESN'T EXERCISE. If
Company does not exercise its Right of First Offer, Jobber will have the right
within a period of 90 days thereafter to execute or cause to execute, an
agreement to sell, convey or otherwise transfer the Jobber's Company-Branded
Assets in question to any third party, but only upon terms substantially and
commercially identical to those set forth in the Term Sheet. It is specifically
agreed that a reduction of up to and including 5% of the consideration set forth
in the Term sheet is a substantially and commercially identical similar term.
(E) EXCEPTION TO COMPANY'S RIGHT OF FIRST OFFER. Notwithstanding paragraph 12(a)
above, Jobber will be permitted to sell, lease or otherwise transfer, or cause
to sell, lease or transfer, Jobber's Company-Branded Assets to: (i) a spouse,
child, son-in-law, daughter-in-law, parent, brother or sister ("Immediate Family
Member"), if Jobber is a sole proprietorship; (ii) an immediate Family Member of
a partner's immediate family or of a member's immediate family, if Jobber is a
partnership or limited liability company ("LLC"), respectively; (iii) an
Immediate Family Member of a stockholder's immediate family, if Jobber is a
corporation; or (iv) a fellow partner, fellow member or fellow shareholder
("Fellow Stakeholder"), if Jobber is a partnership, LLC or corporation,
respectively, without providing Company with a Right of First Offer, provided,
however, that each Immediate Family Member or Fellow stakeholder who receives
assets hereunder, is at least 21 years of age with at least one year of active
management experience in Jobber's business and, provided further, that no
agreement executed in accordance with this paragraph 12(e) will operate as a
mere means or device to transfer control or ownership of Jobber's
Company-Branded Assets to someone other than an Immediate Family Member or
Fellow Stakeholder without providing Company with its Right of First Offer.
Regardless of the exception allowed in this paragraph 12(e), Jobber will
promptly provide Company with written notice as required under paragraph 12(b)
above.
PAGE 7 - BRANDED JOBBER CONTRACT (RETAIL) BJC(R) (1-2003)
FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
(F) COMPANY'S RIGHTS TO PURCHASE/SALE OF JOBBERSHIP/CHANGE OF CONTROL. Any
intended sale, conveyance, allenation, transfer, merger or other intended change
of legal or beneficial interest that will result in change in control of
Jobber's corporation, partnership, LLC, sole proprietorship or other entity,
whichever the case may be, at any time during the franchise relationship,
either voluntarily or involuntarily, by operation of law, by merger or by or
through any other type of proceedings, will trigger Company's right to purchase
the entirely of Jobber's Company-Branded Assets for a cash price equal to the
fair market value of those assets ("Rights to Purchase"), as determined by the
average of three independent appraisals made pursuant to paragraph 12(g) below,
and will be considered a request to assign or transfer the Contract.
(G) COMPANY'S RIGHT TO PURCHASE/INFORMATION JOBBER MUST PROVIDE/COMPANY'S
ELECTION TO APPRAISE. Pursuant to paragraph 12(f) above. Jobber will promptly
provide Company with written notice of an intended change in control. Jobber
will also promptly submit to Company complete and fully executed copies of all
contract documents that evidence the intended transaction and corresponding
change in control, and any information, facts and data requested by Company to
evaluate the bona fide nature of said transaction and to evaluate Jobber's
request to assign or transfer the Contract. After receiving all requested
information, Company will thereafter have 90 days within which to appraise
Jobber's Company-Branded Assets and exercise its Right to Purchase (the "90-Day
Exercise "Period"), by written notive to Jobber. If Company elects to appraise,
the process must be initiated in writing within the first 30 days of three 90
Day Exercise Period. The process will consist of three independent appraisal
institute MAI-certified ("MAI") appraisers--one chosen by Company within the
first 30 days of the 90 Day Exercise period. One chosen by jobber within the
first 40 days of the 90 Day Exercise period and one chosen by the other two MAI
appraisers within the first 60 days of the 90 Day-Exercise period. Each
appraiser will appraise the entirely of Jobber's Company-Branded Assets and
provide their respective appraisals within the first 70 days of the 90-Day
Exercise Period. Each appraiser will provide Company with a written appraisal
and the average of these appraisals will be the price Company would pay, should
Company decide to exercise its Right to purchase. Jobber will cooperate fully
and completely with company by promptly naming an appraiser and by providing any
information, facts and data required by Company and/or the appraisers to
evaluate and appraise Jobber's Company- Branded Assets. Company and Jobber will
each pay for their own appraiser and will each pay one half of the third
appraiser's fee. Closing will be in accordance with paragraph 12(c) above.
(H) EXCEPTION TO COMPANY'S RIGHT TO PURCHASE. Notwithstanding paragraph 12(f)
above, Jobber will be permitted to effect a sale, conveyance, allenation,
transfer, merger or other change of legal or beneficial interest resulting in a
change in control of Jobber's corporation, partnership, LLC, sold
proprietorship or other entity, whichever the case may be, to an Immediate
Family Member or Fellow Stakeholder, without triggering Company's Right to
Purchase; provided, however, that the Immediate Family Member or Fellow
Stakeholder is at least 21 years of age with at least one year of active
management experience in Jobber's business and, provided further, that no
transaction executed in accordance with the paragraph 12(h) will operate as a
more means or device to transfer control or ownership of Jobber's
Company-Branded Assets to someone other than an Immediate Family Member or
Fellow Stakeholder without providing Company with its Right to Purchase.
Regardless of the exception allowed in this paragraph 12(h), Jobber will
promptly provide Company with written notice as required under paragraph 12(g)
above.
(I) COMPANY'S RIGHT TO VERIFY OWNERSHIP INTEREST. From time to time, Company may
request and Jobber will provide a confirmation of all shareholder interest
(legal and beneficial), partnership interest, membership interest, or other type
of ownership interest, whichever the case may be on a form acceptable to and/or
provided by Company. Such confirmation will include the names of all
shareholders, partners, members, or owners, whichever the case may be.
(J) STATUS OF CONTRACT AFTER SALE OF JOBBER'S COMPANY-BRANDED ASSETS OR AFTER
CHANGE OF COMPANY CONTROL. In the event of any sale, lease or transfer of
Jobber's Company-Branded Assets hereunder this Contract will continue in full
force and effect unless terminated by Company, upon written notice, or unless
assigned or transferred by Jobber, upon Company's written consent. Subject to
paragraph 13 below, Company's decision not to exercise its Right of First Offer
in accordance with this paragraph 12 will not prevent Company from withholding
its consent to assign this Contract to any third-party acquirer including any
Immediate Family Member or Fellow Stakeholder. In addition, and also subject to
paragraph 13 below. Company's decision not to exercise its Right to Purchase in
accordance with this paragraph 12 will not prevent Company from withholding its
consent to assign or transfer this Contract to any third-party acquirer and/or
newly formed entity. Including any acquirer or entity that is managed by or on
behalf of any Immediate Family Member or Fellow Stakeholder.
(K) COMPANY MAY ASSIGN ITS RIGHT OF FIRST OFFER AND/OR ITS RIGHT TO PURCHASE.
Company will have the right to assign its Right of First Offer or its Right or
Purchase to one or more third-party purchasers of its choosing.
PAGE 8-BRANDED JOBBER CONTRACT (RETAIL) BJC(R) (1-2003)
FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
13. ASSIGNMENT.
(a) JOBBER'S PRIOR WRITTEN REQUEST AND COMPANY'S WRITTEN CONSENT REQUIRED.
Jobber acknowledges and understands that the current ownership and control of
Jobber is a material element in Company's willingness to enter into this
Contract. Jobber, therefore, agrees that it will not assign or transfer its
interest in this Contract, or any franchise relationship attendant thereto,
without a prior written request and without Company's corresponding written
consent: provided, however, that Company will not unreasonably withhold its
consent, and provided further, that Company will consent to Jobber's request to
assign or transfer this Contract to an immediate Family Member or Fellow
Stakeholder designated by Jobber if said Immediate Family Member or Fellow
Stakeholder meets all of Company's then current qualifications for new jobbers,
including but not limited to, those qualifications related to financial
responsibility, creditworthiness, physical and mental fitness, moral character
and business experience.
(b) COMPANY MAY WITHHOLD CONSENT. In giving its consent to any assignment,
whether voluntarily or by operation of law, Company may, at its election,
condition its consent upon: (1) the agreement of the proposed assignee or
transferee to enter into a trial franchise; (2) the agreement of the Jobber to
simultaneously enter into a mutual cancellation of this Contract and related
agreements; and (3) the satisfaction of all indebtedness owned by Jobber to
Company. In addition, nothing stated in this paragraph 13 or elsewhere will
limit Company's right to impose other or additional conditions on its consent or
limit Company's right to withhold its consent for any reason, including but not
limited to, a decision by Company to limit or reduce this number of jobbers in a
geographic area.
(c) EFFECT OF ASSIGNMENT WITHOUT COMPANY'S CONSENT. Jobber agrees and
acknowledges that any attempted or purported assignment or transfer of this
Contract without Company's knowledge and/or Company's prior written consent may
result in the termination of this Contract and the non-renewal of any franchise
relationship.
(d) COMPANY MAY ASSIGN. Company may assign this Contract to a subsidiary,
affiliate or successor of Company or to a third party.
14. INDEMNITY.
Jobber agrees to indemnify, defend and hold Company, including but not limited
to Company's parents, subsidiaries, affiliates and all officers, directors,
shareholders, employees and agents of Company, its parents, subsidiaries and
affiliates, harmless from and against all losses, suits, claims, damages
(consequential or otherwise), demands, causes of action, liabilities, fines,
penalties, costs or expenses (including reasonable attorney's fees and other
costs of defense) of whatever kind and nature, directly or indirectly arising in
whole or in part out of; (a) any default or breach by Jobber of any obligation
contained in this Contract or any other agreement with Company; (b) the receipt,
shipment, delivery, storage, handling, use, sale, dispensing, labeling,
invoicing, advertising or promoting of the Products by Jobber or its
Jobber-Marketers; (c) any act of commission or omission at an Approved Retail
Site; (d) the use of any Company property (real or personal) by Jobber or its
Jobber-Marketer; (e) any allegation of agency or other alleged legal
relationship by which Company is being held or might be held responsible for the
acts or omissions of Jobber or its Jobber-Marketers; (f) the use of Company's
Trade Identities by Jobber or its Jobber-Marketers, including the use of said
Trade Identities on signage and in the advertising or promoting of Products sold
or services rendered by Jobber or its Jobber-Marketers; (g) the violation of any
federal, state or local law, rule, regulation, court order or government
directive by Jobber, its Jobber-Marketers, or any other customers of Jobber or
customers of its Jobber-Marketers; (h) all taxes incurred and owned by Jobber or
its Jobber-Marketers of whatever kind and nature; (i) the revocation of any
prior approval to use or display, or the loss of any right to use or display,
any or all of Company's Trade Identities; (j) Jobber's termination of any
franchise or non-renewal of any franchise relationship with its
Jobber-Marketer(s); (k) or any other act or omission of Jobber, its
Jobber-Marketers, any other customers of Jobber, or any of Jobber's -- or a
Jobber-Marketer's -- agents, employees, contractors, invitees, licensees, or
business associates, except such as may be due to the negligence of Company.
Notwithstanding the above, Jobber agrees that the defense obligation included in
this paragraph 14 will be immediate and ongoing, regardless of any ultimate
allocation of negligence or other form of liability.
15. INSURANCE.
(a) TYPES OF COVERAGE REQUIRED. Jobber will purchase and maintain at all times
insurance covering all business operations related to this Contract.
Specifically, Jobber will obtain and maintain, at its sole cost and expense,
insurance coverage through an insurer, and in a form acceptable to Company, as
follows: (1) Commercial general liability insurance of not less than $2,000,000
per occurrence, including coverage for contractual liability, bodily injury,
property damage, fire liability, premises and operations liability, products
completed operations hazard liability, independent contractor's liability,
garage keeper's liability, medical expense liability, liquor liability and
personal and advertising injury; (2) Worker's compensation, as required by law,
and employer's liability insurance of not less than $2,000,000 for each
accident and disease; (3) Business automobile liability insurance, including
coverage on all vehicles owned, hired or used in the performance of this
Contract, of not less than $2,000,000 per occurrence. Jobber may comply with
the stated coverage amounts using alternative methods, excluding
self-insurance, but including the use of umbrella coverage.
Page 9-Branded Jobber Contract (Retail) BJC(R)(1-2003)
for MAPCO Express, Inc.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
(b) REQUIREMENTS FOR EACH TYPE OF COVERAGE. All insurance policies required
under this Contract will:(1) name the Company as an additional insured, except
Worker's compensation insurance; (2) include an endorsement containing an
express waiver of any right of subrogation or other recovery, by Jobber or any
insurance company, against Company; (3) include an endorsement stipulating that
Jobber's insurance policies are primary to, not contributory with and not excess
to any other policies of self-insurance; (4) provide that no policy will be
materially changed, amended or canceled except after 30 days' written notice to
Company; and (5) provide that Jobber will be solely responsible for the payment
of any premium or assessment, with no recourse against Company.
(c) PROOF OF COVERAGE REQUIRED. Each time Jobber renews the insurance coverage
required under this Contract, but no less than annually, and at any time
requested by Company, Jobber will provide such proof of coverage as Company
determines is necessary for verification purposes including, but not limited to
certificates of insurance or copies of the policies themselves. If Jobber fails
to provide acceptable proof of insurance, as determined by Company, then
Company may, at its option and in addition to all other remedies available to
it under this Contract or at law, after 10 days notice to Jobber, obtain
coverage to protect Company's interests only and charge the cost of such
coverage to Jobber.
(d) ENVIRONMENTAL COVERAGE. If required by any applicable law, Jobber must
obtain environmental impairment coverage in the amount and of the type required
by such law.
(e) INDEMNITY NOT LIMITED BY INSURANCE. The existence or non-existence of any
insurance as required by the Contract will not limit the Jobber's indemnity or
other obligations under this Contract.
15. TERMINATION AND NON-RENEWAL.
(a) COMPANY'S BREACH. Jobber may terminate this Contract if Company fails to
comply with any material provision of this Contact, upon 90 days prior written
notice of such a failure, provided, however, that Jobber will provide Company
with a reasonable opportunity to exert good faith efforts to carry out such
provision.
(b) JOBBER'S BREACH/PMPA. Company may terminate this Contract and non-renew any
franchise relationship in accordance with Title I of the Petroleum Marketing
Practice Act, 15 U.S.C. 2801 al seq., as amended ("PMPA"), and/or other
applicable federal, state and/or local laws of the same nature and effect.
Company expressly reserves all of its rights under the PMPA and Jobber
acknowledges and agrees that no omission by Company of any specific reference to
any specific PMPA right will constitute a waiver of that right. In addition,
Jobber agrees and acknowledges that Company's rights and remedies under the
PMPA will be without prejudice to all other rights and remedies available to
Company at law or in equity.
(c) PROCEDURES FOR TERMINATION AND NON-RENEWAL BY COMPANY. If Jobber fails to
comply with any of the terms and conditions of this Contract and/or related
agreements, including all attachments, schedules, appendices, and amendments
attached to and incorporated in those agreements, or if any other ground for
termination and/or non-renewal arises, Company may, at its election, terminate
this Contract and/or non-renew any franchise relationship upon 90 days written
notice (or upon less than 90 days notice as may be reasonable under a particular
circumstance). In the case of a market withdrawal, as defined in the PMPA,
Company may terminate this Contract and/or non-renew any franchise relationship
upon 180 days written notice.
(d) PHYSICAL OR MENTAL INCAPACITY AND DEATH. For purposes of emphasis and
elaboration, but without limitation, it is acknowledges and agreed by and
between Company and Jobber that the following will constitute grounds for
termination of this Contract and non-renewal of any franchise relationship;
death or continuous, severe physical or mental disability of at least 3 months
duration of: (1) the owner of the business, if Jobber is a sole proprietorship;
or (2) one of the partners, if Jobber is a partnership; or (3) one of the
members, if Jobber is an LLC; or (4) the beneficial owner(s) of a majority of
Jobber's voting stock, if Jobber is a corporation, unless the death or other
incapacity of said beneficial owner(s) results in the contemporaneous transfer
of a majority of said voting stock to an immediate Family Member or Members, or
to a Fellow Stakeholder or Stakeholders who is/are at least 21 years of age
with at least 1 year of active management experience in the Jobber's business.
(e) FAILURE TO PURCHASE MINIMUM QUANTITIES OF PRODUCTS PURSUANT TO ATTACHMENT
A-1. Jobber's failure to purchase the applicable, annual minimum volume set
forth in Attachment A-1, will constitute grounds for termination of this
Contract and non-renewal of any franchise relationship.
(f) UNDERLIFTING PRODUCT. Jobber's failure to purchase the applicable, annual
Attachment A purchase requirement over any 12-month continuous period during
the Contract term, or any pro rata portion thereof, will constitute grounds for
termination of this Contract and nonrenewal of any franchise relationship.
(g) EARLY TERMINATION. Jobber may terminate this Contract prior to the end of
its stated term by paying Company an early termination sum (Early Termination
Sum") that is calculated by adding the following 3 elements: (1) all financial
obligations
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
under Jobber's accounts, aggregated and accrued up to and including the
termination date; (2) the aggregated and unamortized portion of any and all
loans and advances made, and incentive and re-image funds provided to, Jobber;
and (3) an amount established by Company, in its sole discretion, determined by
multiplying the then current Attachment A annual purchase commitment (as
extrapolated from the termination date up to and including the date the Contract
would have expired under paragraph 1 above) by either: (i) a per gallon formula
comprised of the most recent 3 year average Jobber Buying Price (weighted by
grade) from Jobber's Designated Terminals, minus the most recent 3 year average
Platt's spot price (weighted by grade), plus the then Current cost of primary
transportation to Jobber's Designated Terminal, minus 1 cent per gallon; or by
(ii) 2 cents per gallon, whichever is higher. Jobber agrees that Company's
losses arising out of Jobber's early termination of the Contract would not be
readily ascertainable and that the Early Termination Sum, as developed above,
would represent a reasonable approximation of Company's losses in the event of
such early termination. Jobber also agrees that Company's rights and remedies
under the various provisions of this paragraph 16 will be without prejudice to
all other rights and remedies available to Company in this Contract or at law or
in equity, including but not limited to the right to actual, consequential
damages caused by and/or related to Jobber's breach of this Contract or any
provision therein.
(h) COMPANY'S EQUITABLE REMEDIES. Jobber agrees that money damages may not be a
sufficient remedy for its breach of this Contract and that, therefore, in
addition to all remedies available at law, Company will be entitled to specific
performance, injunctive relief, declaratory judgement and/or other equitable
remedies, as appropriate. Jobber agrees to waive any requirement for the
posting of any bond in connection with Company's effort to seek an equitable
remedy.
17. DELIVERIES.
(a) COMPANY'S RIGHT TO LIMIT DELIVERY QUALITIES. Unless otherwise specified in
the attachments, schedules, appendices or amendments to this Contract,
deliveries of each Product hereunder will be in equal and ratable quantities,
subject to weekly or daily pro rating or any seasonal adjustments. Company will
not be obligated to deliver to Jobber in any given month more than an amount
equal to 1/12 of the respective 12-month quantity for each such Product as set
forth in the then current Attachment A. Should Jobber at any time or for any
month order in quantities loss than its pro rated monthly amount, Company will
not be obligated to deliver the deficiency at any time. Should Jobber at any
time or for any month require more than said pro rated amount, Company will
have the right, at its option, to supply such excess requirement, but if Company
supplies same it will not be obligated to do so again in the future.
(b) COMPANY'S RIGHT TO SPECIFY MINIMUM DELIVERY QUANTITIES. Company will have
the right to specify minimum delivery quantities and either refuse to make
deliveries in quantities less than such minimums or, at Company's option, to
charge extra for making such deliveries.
(c) CHANGES IN AND AT JOBBER'S DESIGNATED TERMINALS. Company will have the
right, at any time, to change Jobber's Designated Terminals and/or to limit the
quantity of Products that Company will make available to Jobber at any of said
terminals by pro rating the annual quantities on a monthly, weekly or daily
basis. Company will also have the right to determine and designate the
percentage of Jobber's Attachment A quantities that Company will make available
to Jobber at Jobber's Designated Terminals.
(d) RETURNED VAPORS. Any petroleum product vapors that are redelivered to
Company's terminals or other delivery points from Jobber's transport equipment
in connection with the operation of any vapor recovery equipment or system,
will become the property of Company without any accounting therefor by Company
to Jobber.
18. DETERMINATION OF QUANTITIES. The quantities of Products sold hereunder will
be determined on the basis of the temperature thereof at 80 (degree)
Fahrenheit in accordance with "Table No. 6B of API Standard 2540, Manual of
Petroleum Measurement Standards, Chapter 11.1 -- Volume Correction Factors --
Volume II" (or any API/ASTM reissue or replacement thereof in effect at the
time of measurement), or at Company's option, on the basis of gross volume, as
established by Company for Jobber's class of trade in the applicable geographic
area, or as otherwise required by law.
19. DEMURRAGE. Jobber will pay any and all demurrage accruing on any barges,
tank cars, transport and/or tank trucks or other means of transportation at the
prevailing rates therefor, at the time of the particular delay. Jobber will
also pay to Company a tank car and/or truck transport rental at Company's then
prevailing rates for each chargeable demurrage day.
20. REJECTION OF PRODUCTS AND NOTICE OF BREACH.
(a) REJECTION MUST OCCUR WITHIN 48 HOURS OF RECEIPT. Jobber will have 48 hours
after its receipt of the Products sold under the Contract to inspect and either
accept or reject said Products.
(b) REQUIRED PROCEDURES IF PRODUCTS REJECTED. If Jobber intends to reject, it
must do so in writing within the 48 hour inspection period and Company must
receive said notice within 5 business days of Jobber's receipt of the Products
in question. If Jobber fails to timely reject or fails to specify a claimed
shortage, defect or nonconformity, said failure will constitute an irrevocable
acceptance of the Products in question and/or a waiver of the alleged shortage,
defect or nonconformity.
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<PAGE>
(c) REQUIRED PROCEDURES IF BREACH DISCOVERED AFTER ACCEPTANCE. In the event
that the Products are accepted pursuant to the terms of this paragraph 20,
Jobber agrees to notify Company in writing of any subsequently discovered
breach of warranty which could not have reasonably been discovered by careful
inspection at the time of delivery. Such notice will be given within 7 days
after discovery of the breach and must specify the facts
constituting the alleged breach. Failure to give such notice will be deemed
conclusive evidence that Jobber has no valid claim for breach of warranty.
21. EXPRESS WARRANTIES, DISCLAIMERS AND DAMAGE LIMITS.
(a) COMPANY WARRANTIES. Company warrants that the Products sold to Jobber under
this Contract will meet Company's then current specifications for the
respective Product and that said Product will be in merchantable condition.
(b) NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, ARE MADE.
(c) RIGHT TO DAMAGES LIMITED. Under no circumstances will Company be liable for
incidental, special, punitive or consequential damages whether under warranty,
tort, contract, strict liability or otherwise.
22. FORCE MAJEURE AND ALLOCATION.
(a) FORCE MAJEURE. Company will be excused from delay or nonperformance in the
event of a refinery turnaround, whether partial or complete, or if it is
otherwise unable to meet the demand for its Products at Company's normal and
usual distribution points for supplying Jobber (regardless of whether or not
Company may have diverted certain supplies from such distribution points in
order to alleviate shortages at other distribution points), or in the event of
failure or delay in delivery due to exhaustion, reduction or unavailability of
Product, or an element, item or component necessary in the manufacture,
production, or delivery of such Product. Either party will be excused from
delay or nonperformance in the event of any condition whatsoever beyond said
party's reasonable control, including without limitation: unavailability,
failure, or delay of transportation; "Acts of God", labor difficulties;
explosions; storms; breakdown of machinery or equipment; fire; riots; war
conditions in this or any other country; and compliance with any law or
governmental order, regulation, recommendation, request or allocation program
(whether voluntary or involuntary) affecting directly or indirectly said
party's ability to perform hereunder.
(b) ALLOCATION. In the event of any of the contingencies or conditions referred
to in paragraph 22(a) above, Company will have the right to curtail deliveries
or allocate its supply of Product for sale among its customers in any manner
that it deems to be fair and reasonable under the circumstances, and will not
be obligated to obtain or purchase other supplies of Product or in any way make
up for any Product not delivered. Jobber will not hold Company responsible
in any manner for any losses or damages which Jobber may claim as a result of
any such curtailment or allocation by Company.
23. DISCONTINUANCE OF PRODUCTS OR SERVICES. Company may at any time and for any
reason: (a) discontinue the production or sale of any Product covered hereby;
(b) change the specifications or grade of any such Product; (c) replace any
such Product with another Product; (d) change or withdraw the Trade Identities
applicable to any such Product; (e) change or withdraw services, equipment or
facilities offered in connection with any such Product, including but not
limited to Payment Methods services or privileges; and/or (f) withdraw from
marketing any such Product in the trade area encompassing any Approved Retail
Site and/or in which Jobber's bulk plants or any of Jobber's Designated
Terminals are located. Company will not be liable to Jobber by reason of any
such discontinuance, replacement, change or withdrawal.
24. COMPLIANCE WITH LAWS.
(a)COMPLIANCE WITH LAWS GENERALLY. Jobber will comply, and require its
Jobber-Marketers and other customers to comply with any and all applicable laws
and regulations of any and all governmental authorities regarding the receipt,
shipment, delivery, storage, handling, use, safe, dispensing, measuring,
calibrating, labelling, invoicing, advertising and/or promoting of the Products
purchased under this Contract.
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limiting the foregoing, Jobber
will comply, and require its Jobber-Marketers and other customers to comply,
with any and all applicable laws and regulations promulgated by any and all
governmental occupational, health and safety agencies and/or environmental
protection agencies; including but not limited to: (1) the following federal
Clean Air Act regulations and any corresponding state counterparts, as amended
from time to time; (i) 40 CFR. Part 80, Subpart D, regarding reformulated
gasoline; (ii) 40 CFR. Part 80, Subpart C, regarding oxygenated gasoline;
(iii) 40 CFR. Part 80, Subpart B (specifically 40 CFR. sections 80.27 and
80.28), regarding gasoline volatility; (iv) 40 CFR. Part 80, Subpart B
(specifically 40 CFR sections 80.29 and 80.30), regarding sulfur content in
diesel fuel; and (v) 40 CFR Part 80, Subpart G, regarding deposit control
additives in gasoline; (2) the Resource Conservation and Recovery Act, as
amended, 42 USC Section 6901 et seq.; (3) the Clean Water Act, as amended, 33
USC Section 1251 et seq.; and (4) the Safe Drinking Water Act, as amended, 42
USC Section 300 et seq.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
(c) COMPLIANCE WITH WEIGHTS AND MEASURES LAWS. Without limiting the foregoing,
Jobber will comply, and require its Jobber-Marketers and other customers to
comply, with any and all applicable weights and measures laws and regulations
promulgated by any and all governmental authorities. In addition, Jobber will
develop and maintain a program designed to assure and monitor compliances with
any and all applicable weights and measures laws and regulations for each of its
Approved Retail Sites, including its Jobber-Marketer Approved Retail Sites.
(d) COMPLIANCE WITH LAWS REGARDING YOUR ACCESS TO TOBACCO. Jobber will comply
with all laws regarding youth access to tobacco. Violation(s) of such laws can
constitute grounds for termination or non-renewal of this Agreement.
(e) COMPANY'S RIGHT TO MONITOR COMPLIANCE. As part of Company's compliance
programs, Jobber acknowledges and agrees that Company will have the right to
enter upon any premises, including any Approved Retail Site, in or upon which
any records necessary to demonstrate Jobber's compliance with the obligations
referred to in paragraphs 24(a), 24(b), and 24(c) above are kept. Jobber also
grants to Company the right to obtain and/or copy any records, inspect any
equipment and sample any Products covered by this Contract.
25. TAXES. Jobber will pay, or will reimburse Company for Company's payment of,
any tax, inspection or environmental fee, duty, tariff or other like charge
(including penalty and interest, if any) imposed, levied, or assessed by
federal, state, local, Native American, or foreign authority upon the Products
or transactions covered by this Contract, or upon the import, manufacture,
storage, sale, use, transportation, delivery, or export of the Products covered
by this Contract, or upon the privilege of doing any of these activities,
whether imposed on or measured by the volume, price, or proceeds of sale of the
Products covered by this Contract.
26. CONFIDENTIALITY. Jobber acknowledges and agrees that the guidelines,
manuals, methods, policies, procedures, programs, software, specifications,
standards (both operational and visual), strategies and all related information
provided by, or on behalf of, Company are proprietary and confidential
(individually and collectively, ""Confidential Information"). Accordingly,
Jobber will not disclose any Confidential Information to third parties or use it
for any purpose not authorized by Company, unless otherwise required by law. In
addition, Jobber may only disclose Confidential Information to its employees and
its Jobber-Marketers on a 'need to know' basis and only then if Jobber, its
employees and its Jobber-Marketers undertake to keep said disclosures
confidential.
27. NOTICES. All notices given under this Contract will be deemed properly
served if delivered in writing personally or sent by certified mail (return
receipt requested) to Company or Jobber at the addresses indicated in the
introduction to this Contract. The date of notice will be the date deposited in
the U.S. mail or, if delivered personally, the date of delivery. Any change of
address of a party will be communicated to the other party by written notice in
accordance with the terms of this paragraph 27.
28. ENTIRE AGREEMENT. This Contract cancels and supersedes all prior written and
unwritten agreements, attachments, schedules, appendices, amendments and
understandings between the parties pertaining to the matters covered in this
Contract, except any indebtedness owed to Company, and contains the entire
agreement between the parties. No representations or statements, other than
those expressly set forth in this Contract were relied upon by the parties in
entering into this Contract. No amendment, modification or waiver of, addition
to, or deletion from the terms of this Contract will be effective unless reduced
to writing and signed by Jobber and a Company representative with actual
authority to bind the Company, including a regional marketing vice president
("RVP"), or successor position, or other authorized Company representative with
equal or superior authority.
29. SEVERABILITY. In the event one or more paragraphs of this Contract, or
portions of any paragraph, are declared or adjudged invalid or void by a court
of competent jurisdiction, the remaining paragraphs of this Contract or
remaining portions of any paragraph, will remain in full force and affect.
Company may, in the alternative and at its sole discretion, cancel this Contract
with due notice to Jobber.
30. NO WAIVER. No course of dealing and no failure to act on any incident of
breach under this Contract will be construed against Company as a waiver of its
right to act in the future. The waiver of any breach of any term or condition in
this Contract will not be construed as a waiver of any subsequent breach of the
same or any other term or conditions. Any failure by Company to enforce its
rights or to seek remedies for any breach of this Contract will not prejudice
its rights or available remedies for any subsequent breach by Jobber.
31. PARAGRAPH TITLES. The titles and subtitles of paragraphs in this Contract
are for reference and identification purposes only. They are not intended to
modify, restrict or expand upon the content of the paragraphs themselves.
32. CAPITALIZED TERMS/DEFINITIONS. Capitalized terms in the Contract will be
defined and have the meanings as set forth herein.
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FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
33. EXECUTION. This Contract will not be binding upon Company unless and until
it is signed by Jobber and a Company representative with actual authority to
bind the Company, including an RVP, or successor position, or other authorized
Company representative, and a fully executed copy is returned to Jobber. The
signatures of authorized individuals from both Amoco Oil Company and BP
Exploration & Oil, Inc. will be required to bind both companies.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date
stated.
JOBBER: MAPCO EXPRESS, INC.
/s/ Lynwood E. Gregory III By: Uzi Yemin
Lynwood E. Gregory III Printed Name: Uzi Yemin
COO EXE VP
Title: President
BP PRODUCTS NORTH AMERICA INC.
By: /s/ Roger E. Williams
Title: SVP
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
bp ATTACHMENT A-1 TO
(BP LOGO) BRANDED JOBBER
CONTRACT (RETAIL)
ANNUAL MINIMUM VOLUMES
DJC(R)-A1 (10 2001)
This attachment A-1 ("Attachment A-1") is executed simultaneously with and
hereby made a part of the current branded
jobber contract ("Contract") dated DECEMBER 15, 2005 by and between BP Products
North America Inc.
(hereinafter referred to as "Company"), and MAPCO EXPRESS, INC. ("Jobber").
(State exact legal name of Jobber)
NOW, THEREFORE, Company and Jobber, intending to be legally bound, agree to the
following:
1. ANNUAL MINIMUM VOLUME REQUIREMENT. In addition to the terms and conditions
contained in the Contract pertaining to Jobber's obligation to purchase the
branded products (as defined in the Contract), including but not limited those
obligations contained in Attachment A to the Contract, Jobber will be required
to purchase a minimum of [***] gallons of branded gasoline Products during the
first, continuous 12-month period of the Contract; [***] gallons of branded
gasoline Products during the second, continuous 12-month period of the Contract;
and [***] gallons of branded gasoline Products during the third, continuous
12-month period of the Contract form.
2. ANNUAL MINIMUM VOLUME REQUIREMENT (TRIAL FRANCHISE). If the Contract is a
trial franchise, in addition to the terms and conditions contained therein
pertaining to Jobber's obligation to purchase certain quantities of branded
Products, including but not limited those obligations contained in Attachment A
to the Contract. Jobber will be required to purchase a minimum of ______ MILLION
gallons of branded gasoline Products during the continuous 12-month term of said
Contract.
3. ADDITIONAL TERMS. Company may, in its sole discretion, allow Jobber to
satisfy the minimum volume requirement slated above by including Jobber's
purchases of certain quantities of branded diesel Products. The minimum volume
of branded gasoline Products required above and the quantities of branded diesel
products allowed to fulfil Jobber's minimum volume requirement may. In Company's
sole discretion, vary by marketing business unit, region or area, and may be
amended from time to time.
4. GROUNDS FOR TERMINATION/NONRENEWAL. Jobber's failure to purchase the
above-stated annual minimum(s) is a ground for termination of the Contract
and/or a ground for the non-renewal of Jobber's franchise relationship with
Company.
5. ATTACHMENT INCORPORATED INTO CONTRACT. Company and Jobber ratify and affirm
the terms and conditions of the Contract and acknowledge that his Attachment A-1
is incorporated within said Contract.
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the date
stated.
Jobber: MAPCO EXPRESS, INC.
/s/ Lynwood E. Gregory III
Lynwood E. Gregory III By: /s/ Uzi Yemin
COO EXE VP Printed Name: Uzi Yemin
Title: President
BP PRODUCTS NORTH AMERICA INC.
By: /s/ Roger E. Williams
Title: SVP
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
[BP LOGO] TRADE SIGNAGE AGREEMENT
(JOBBER)
BJC(R).SIGNS(10 2001)
This trade signage agreement ("Trade Signage Agreement") is executed
simultaneously with and hereby made a part of the current branded jobber
contract ("Contract") dated December 15, 2005 by and between BP Products North
America Inc. (hereinafter referred to as "Company"). MAPCO EXPRESS, INC.
("Jobber").
NOW, THEREFORE, Company and Jobber, intending to be legally bound, agree to the
following:
1. JOBBER'S ACQUISITION OF TRADE IDENTITY SIGNAGE. Jobber is engaged in
advertising, distribution and/or resale of branded Products (as defined in the
Contract) authorized by, supplied by and/or purchased from Company under the
above-referenced Contract. Accordingly, Jobber has purchased or otherwise
acquired and/or intends to purchase or otherwise acquire, approved advertising
signs and related materials bearing or consisting of Company's Trade Identities
(as defined in Contract) which signs (hereinafter referred to as "Trade
Identity Signage") which Jobber has installed or intends to install at each
Approved Retail Site (as defined in the Contract).
2. USE OF TRADE IDENTITY SIGNAGE GENERALLY. Jobber will be permitted to
display, and will be permitted to allow its Jobber-Marketers (as defined in the
Contract) to display -- on a non-exclusive, limited, site specific basis at its
Approved Retail Sites -- Trade Identity Signage in connection with the
advertising, distribution and/or resale of the Products authorized by, supplied
by and/or purchased from Company under said Contract.
3. USE OF TRADE IDENTITY SIGNAGE GOVERNED BY THE CONTRACT, THIS TRADE SIGNAGE
AGREEMENT AND RELATED AGREEMENTS. The permission to display Trade Identity
Signage will be governed by and subject to the terms and conditions of the
Contract (including paragraph 6(a) therein), this Trade Signage Agreement and
all related contracts, including all attachments, schedules, appendices, and
amendments attached to and incorporated in those agreements. In addition, Trade
Identity Signage will only be installed and/or displayed in accordance with the
guidelines, policies, procedures, requirements, specifications and standards
(both operational and visual) issued by Company, as amended from time to time,
Company will retain, at all times, the right to determine what Trade Identity
Signage will be used or displayed, and the manner of its use or display, at an
Approved Retail Site and the right to restrict the use or display of certain
Trade Identity Signage to certain Approved Retail Sites (or to certain locations
at an Approved Retail Site).
4. JOBBER TO PROVIDE LIST OF TRADE IDENTITY SIGNAGE WITH EXACT LOCATION(S).
Jobber will provide Company with a list of all Trade Identity Signage in
Jobber's possession and/or control and the exact location of the Trade Identity
Signage, upon Company's request. Under no circumstances will Jobber be allowed
to relocate Trade Identity Signage to another Approved Retail Site or other
retail location without Company's consent.
5. USE OF TRADE IDENTITY SIGNAGE IN CONJUNCTION WITH THE SALE OF REPRESENTATIVE
AMOUNTS OF CERTAIN PRODUCTS. At all times and at each Approved Retail Site where
Trade Identity Signage is displayed, including Jobber-Marketer sites, Jobber
will offer for sale, or cause to be offered for sale, Representative Amounts (as
defined in the Contract) of each grade of Company-branded Product. If Jobber
ceases to offer or make available one or more of these Products in the required
Representative Amounts at an Approved Retail Site supplied by Jobber, Jobber
will cease using or displaying, or cause its Jobber-Marketer to cease using or
displaying, Trade Identity Signage at that site.
6. USE OF TRADE IDENTITY SIGNAGE IN CONJUNCTION WITH COMPANY'S RETAIL MARKETING
STRATEGIES AND DEVELOPMENT PLANS, IMAGE PROGRAMS AND STANDARDS. Jobber's right
to use and display Trade Identity Signage will also be subject to Company's then
current image programs and standards (both operational and visual), as amended
from time to time, and Company's then current retail marketing strategies and
development plans, as amended from time to time. If an Approved Retail Site no
longer conforms or fails to conform to Company's image programs or standards
(both operational and visual), or its retail marketing strategies and
development plans, Company may revoke its prior approval identifying the
Approved Retail Site, as further provided in paragraph 6(b) of the Contract, in
which case Jobber will cease using or displaying, or cause its Jobber-Marketer
to cease using or displaying, Trade Identity Signage at that site. Company will
also have the right, at any time and for any reason, to revoke its prior
approval to use certain or all of its Trade Identities at certain or all
Approved Retail Sites (or at certain locations at an Approved Retail Site) and,
where applicable and in its sole discretion, to substitute any other Trade
Identities in their place, (in which case, Jobber will cease using or
displaying, or cause its Jobber-Marketers to cease using or displaying the
corresponding Trade Identity Signage in
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
question. Jobber agrees and acknowledges that Company's image programs and
standards (both operational and visual) will include those programs and
standards for the design, construction, maintenance, appearance and cleanliness
of the Approved Retail Sites at which the Trade Identity Signage is installed
and displayed.
7. MISUSE OF TRADE IDENTITY SIGNAGE IN CONNECTION WITH CERTAIN SALES. Jobber
will not use any Trade Identity Signage in connection with the advertising,
distribution and/or resale of: any dilution or adulteration of a Product
authorized by, supplied by and/or purchased from Company; any mixture or blend
of Products authorized by, supplied by and/or purchased from Company, without
Company's prior written consent (which consent may be revoked at any time and
for any reason); any Product authorized by, supplied by and/or purchased from
Company but sold under an incorrect or inappropriate Mark or through unapproved
or disapproved packages, containers or equipment; or any product not authorized
by, supplied by and/or purchased from Company.
8. REMOVAL AND/OR DISCONTINUED USE OF TRADE IDENTITY SIGNAGE. Company will have
the right to cause any and all Trade Identity Signage to be removed, covered or
obliterated, and the right to cause the Trade Identities on said Trade Identity
Signage to be removed, covered or obliterated, from any Approved Retail Site (or
from certain locations at an Approved Retail Site); found to be in violation of
any provision of the Contract or this Trade Signage Agreement; disapproved in
accordance with paragraph 6(a) of the Contract; or at which approval has been
revoked in accordance with paragraph 8(b) of the Contract. Likewise, upon the
expiration or termination of the Contract for any reason, Jobber will
immediately cease using or displaying, and cause its Jobber-Marketers to cease
using or displaying, all Trade Identity Signage in its possession or control.
Jobber will also immediately remove, cover or obliterate or, where appropriate,
cause any third party to immediately remove, cover or obliterate all Trade
Identity Signage on any personal property sold or transferred by Jobber or its
Jobber-Marketers.
9. COMPANY'S RIGHT TO REMOVE TRADE IDENTITY SIGNAGE. If, within 10 days after
Company's written request, Jobber fails to cease using or displaying the Trade
Identity Signage or fails to remove, cover or obliterate said Trade Identity
Signage, or fails to cause its Jobber-Marketer(s) to do the same, Company will
have the irrevocable right to use any means necessary to remove, cover or
obliterate said Trade Identity Signage, or the Marks thereon, including entering
onto the premises upon which the Trade Identity Signage is located or filing a
legal action, with Jobber's full and complete cooperation and at Jobber's
expense. Jobber will not directly or indirectly cause any Trade Identity Signage
to become fixtures or part of the real property upon which the Trade Identity
Signage may be used or displayed. No action taken by Company in accordance with
this paragraph 9 will be construed as an exercise of Company's option to
purchase any Trade Identity Signage.
10. COMPANY'S RIGHT TO PURCHASE TRADE IDENTITY SIGNAGE VIA PURCHASE OPTION.
Company will have the option, but not the obligation, at any time and for any
reason to purchase any and all Trade Identity Signage owned by Jobber, on the
basis of a depreciated cost determined by the period of Jobber's ownership and
beginning with the date of Jobber's purchase. The date upon which the Trade
Identity Signage is placed in Company's possession will also be used to compute
the period of Jobber's ownership, Company will initiate its option by providing
Jobber with a list of the Trade Identity Signage it desires to purchase, along
with a request for proof of purchase. Within 10 days of receiving Company's
list, Jobber will provide Company with the requisite proof of purchase in a form
or forms satisfactory to Company. Within 10 days of receiving satisfactory proof
of purchase, Company may exercise its option to purchase the Trade Identity
Signage by providing Jobber with written notice. In the event Company exercises
its option under this paragraph 10, Jobber agrees to do all things necessary to
place Company in full ownership and possession of the Trade Identity Signage,
within 30 days of Company's notice. Pursuant to this paragraph 10, Company
agrees to pay Jobber for the Trade Identity Signage as follows:
During the first year of ownership 100% of Jobber's purchase price
During the second year of ownership 90% of Jobber's purchase price
During the third year of ownership 80% of Jobber's purchase price
During the fourth year of ownership 70% of Jobber's purchase price
During the fifth year of ownership 60% of Jobber's purchase price
During the sixth year of ownership 50% of Jobber's purchase price
During the seventh year of ownership 40% of Jobber's purchase price
During the eighth year of ownership 30% of Jobber's purchase price
After the eighth year of ownership 25% of Jobber's purchase price
11. COMPANY'S RIGHT TO TERMINATE TRADE IDENTITY SIGNAGE LEASE OR RENTAL
AGREEMENT. Company will have the right to terminate any Trade Identity Signage
lease or rental agreement at any time and for any reason and to take possession
of any and all Trade Identity Signage leased, rented or otherwise provided
thereunder. Company may exercise its right to terminate under this paragraph 11
by providing Jobber with written notice. In the event Company does terminate,
Jobber agrees to do all things necessary to place Company in full possession of
the Trade Identity Signage, within 30 days of Company's notice.
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<PAGE>
12. SALE OF TRADE IDENTITY SIGNAGE BY JOBBER REQUIRES COMPANY'S CONSENT. Jobber
agrees not to sell, assign, transfer or otherwise dispose of, or permit the use
or display of, any Trade Identity Signage without the prior written consent of
Company in each case. In the event Jobber negotiates with any third party for
the sale, lease, encumbrance or other disposition of the premises upon which any
Trade Identity Signage is located, Jobber will, prior to the completion of such
negotiations or execution of any contract, inform said third party of the terms
and conditions of this Trade Signage Agreement and provide Company with written
proof of such notification.
13. MAINTENANCE AND REPAIR OF TRADE IDENTITY SIGNAGE. The maintenance and repair
of any and all Trade Identity Signage will be the responsibility of Jobber.
Jobber also agrees to keep said Trade Identity Signage in good repair and
condition at all times and to maintain any and all licenses and/or permits which
may be required as a condition to its installation, use or display.
14. NOTICES. All notices under this Trade Signage Agreement will be given in
accordance with paragraph 27 of the Contract.
15. THIS TRADE SIGNAGE AGREEMENT SUPERSEDES ALL PRIOR AGREEMENTS. This Trade
Signage Agreement will cancel and supersede any and all prior Trade Signage
Agreements. In the event of any conflict between this Trade Signage Agreement
and any Trade Identity Signage lease or rental agreement between Company and
Jobber, the terms and conditions of this Trade Signage Agreement will apply.
/s/ Lynwood E. Gregory III Jobber: MAPCO EXPRESS, INC.
Lynwood E. Gregory III -----------------------------------
COO EXE VP By: /s/ UZI YEMIN
----------------------------------------
Printed Name: UZI YEMIN
Title: PRESIDENT
-------------------------------------
BP PRODUCTS NORTH AMERCIA INC.
By: Roger E. Williams
----------------------------------------
Title: SR. VICE PRESIDENT
-------------------------------------
BP PRODUCTS NORTH AMERICA
-------------------------------------
US FUELS
-------------------------------------
Page 3 - TRADE SIGNAGE AGREEMENT (JOBBER) BJC(R)-SIGN(10-2001)
FOR MAPCO EXPRESS, INC.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
Revised Summary of Title I of the Petroleum Marketing Practices Act
AGENCY, Department of Energy
ACTION Notice
SUMMARY: This notice contains a summary of Title I of the Petroleum Marketing
Practices Act, as amended (the Act). The Petroleum Marketing Practices Act was
originally enacted on June 19, 1978, and was amended by the Petroleum Marketing
Practices Act Amendments of 1994, enacted on October 19, 1994. On August 30,
1978, the Department of Energy published in the Federal Register a summary of
the provisions of Title I of the 1978 law, as required by the Act. The
Department is publishing this revised summary to reflect key changes made by the
1994 amendments.
The Act is intended to protect franchised distributors and retailers of
gasoline and diesel motor fuel against arbitrary or discriminatory termination
or nonrenewal of franchises. This summary describes the reasons for which a
franchise may be terminated or not renewed under the law, the responsibilities
of franchisors, and the remedies and relief available to franchisees. The Act
requires franchisors to give franchisees copies of the summary contained in this
notice whenever notification of termination or non renewal of a franchise is
given.
SUPPLEMENTARY INFORMATION:
Title I of the Petroleum Marketing Practices Act, as amended, 15 U.S.C.
Sections 2801-2806, provides for the protection of franchised distributors and
retailers of motor fuel by establishing minimum Federal standards governing the
termination of franchises and the nonrenewal of franchise relationships by the
franchisor or distributor of such fuel.
Section 104(d)(1) of the Act required the Secretary of Energy to publish in
the Federal Register a simple and concise summary of the provisions of Title I,
including a statement of the respective responsibilities of, and the remedies
and relief available to, franchisors and franchisees under the title. The
Department published this summary in the Federal Register on August 30, 1978. 43
F.R. 38743 (1078).
In 1994 the Congress enacted the Petroleum Marketing Practices Act
Amendments to affirm and clarify certain key provisions of the 1978 statute.
Among the key issues addressed in the 1994 amendments are: (1) termination or
nonrenewal of franchised dealers by their franchisors for purposes of conversion
to "company" operation, (2) application of state law; (3) the rights and
obligations of franchisors and franchisees in third-party lease situations; and
(4) waiver of rights limitations. See H.R. REP. No. 737. 103rd Cong. 2nd Sess 2
(1994), reprinted in 1994 U.S.C.C.A.N. 2780. Congress intended to (1) make
explicit that upon renewal a franchisor may not insist on changes to a franchise
agreement where the purpose of such changes is to prevent renewal in order to
convert a franchisee-operated service station into a company-operated service
station; (2) make clear that where the franchisor has an option to continue the
lease or to purchase the premises but does not wish to do so, the franchisor
must offer to assign the option to the franchisee; (3) make clear that no
franchisor may require, as a condition of entering or renewing a franchise
agreement, that a franchisee waive any rights under the Petroleum Marketing
Practices Act, any other Federal law, or any state law, and (4) reconfirm the
limited scope of Federal preemption under the Act.
The summary which follows reflects key changes to the statute resulting
from the 1994 amendments. The Act requires franchisors to give copies of this
summary statement to their franchisees when entering into an agreement to
terminate the franchise or not to renew the franchise relationship, and when
giving notification of termination or nonrenewal. This summary does not purport
to interpret the Act, as amended, or to create new legal rights.
In addition to the summary of the provisions of Title I, a more detailed
description of the definitions contained in the Act and of the legal remedies
available to franchisees is also included in this notice, following the summary
statement.
SUMMARY OF LEGAL RIGHTS OF MOTOR FUEL FRANCHISEES
This is a summary of the franchise protection provisions of the Federal
Petroleum Marketing Practices Act, as amended in 1994 (the Act). 15 U.S.C.
Sections 2801-2806. This summary must be given to you, as a person holding a
franchise for the sale, consignment or distribution of gasoline or diesel motor
fuel, in connection with any termination, or nonrenewal of your franchise by
your franchising company (referred to in this summary as your supplier).
You should read this summary carefully, and refer to the Act if necessary,
to determine whether a proposed termination or nonrenewal of your franchise is
lawful, and what legal remedies are available to you if you think the proposed
termination or failure to renew is not lawful. In addition, if you think your
supplier has failed to comply with the Act, you may wish to consult an attorney
in order to enforce your legal rights.
The franchise protection provisions of the Act apply to a variety of
franchise agreements. The term "franchise" is a broadly defined as a license to
use a motor fuel trademark, which is owned or controlled by a refiner and it
includes secondary agreements such as leases of real property and motor fuel
supply agreements which have existed continuously since May 15, 1973, regardless
of a subsequent withdrawal of a trademark. Thus, if you have lost the use of a
trademark previously granted by your supplier but have continued to receive
motor fuel supplies through a continuation of a supply agreement with your
supplier, you are protected under the Act.
Any issue arising under your franchise which is not governed by this Act
will be governed by the law of the State in which the principal place of
business of your franchise is located.
Although a State may specify the terms and conditions under which your
franchise may be transferred upon the death of the franchisee, it may not
require a payment to you (the franchisee) for the goodwill of a franchise upon
termination or nonrenewal.
The Act is intended to protect you, whether you are a distributor or a
retailer, from arbitrary or discriminatory termination or nonrenewal of your
franchise agreement. To accomplish this, the Act first lists the reasons for
which termination or nonrenewal is permitted. Any notice of termination or
nonrenewal must state the precise reason, as listed in the Act, for which the
particular termination or nonrenewal is being made. These reasons are described
below under the headings "Reasons for Termination" and "Reasons for Nonrenewal."
The Act also requires your supplier to give you a written notice of
termination or intention not to renew the franchise within certain time periods.
These requirements are summarized below the heading "Notice Requirements for
Termination or Nonrenewal."
The Act also provides certain special requirements with regard to trial and
interim franchise agreements, which are described below under the heading "Trial
and Interim Franchises."
The Act gives you certain legal rights if your supplier terminates or does
not renew your franchise in a way that is not permitted by the Act. These legal
rights are described below under the heading "Your Legal Rights."
The Act contains provisions pertaining to waiver of franchise rights and
applicable State law. Those provisions are described under the heading "Waiver
of Rights and Applicable State Law."
This summary is intended as a simple and concise description of the general
nature of your rights under the Act. For a more detailed description of these
rights, you should read the text of the Petroleum Marketing Practices Act, as
amended in 1994 (15 U.S.C. Sections 2801-2806). This summary does not purport to
interpret the Act, as amended, or to create new legal rights.
Page 1 - Revised Summary of Title I of the Petroleum Marketing Practices Act
(PMPA)
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I. REASONS FOR TERMINATION
If your franchise was entered into on or after June 9, 1978, the Act bars
termination of your franchise for any reasons other than those reasons discussed
below. If your franchise was entered into before June 10, 1978, there is no
statutory restriction on the reasons for which it may be terminated. If a
franchise entered into before June 19, 1978, is terminated, however, the Act
requires the supplier to reinstate the franchise relationship unless one of the
reasons listed under this heading or one the additional reasons for nonrenewal
described below under the heading "Reasons for Nonrenewal" exists.
A. Non-Compliance with Franchise Agreement
Your supplier may terminate your franchise if you do not comply with a
reasonable and important requirement of the franchise relationship. However,
termination may not be based on a failure to comply with a provision of the
franchise that is illegal or unenforceable under applicable Federal, State, or
local law. In order to terminate for non-compliance with the franchise
agreement, your supplier must have learned of this non-compliance recently. The
Act limits the time period within which your supplier must have learned of your
non-compliance to various periods, the longest of which is 120 days before you
receive notification of the termination.
B. Lack of Good Faith Efforts
Your supplier may terminate your franchise if you have not made good faith
efforts to carry out the requirements of the franchise, provided you are first
notified in writing that you are not meeting a requirement of the franchise and
you are given an opportunity to make a good faith effort to carry out the
requirement. This reason can be used by your supplier only if you fail to make
good faith efforts to carry out the requirements of the franchise within the
period which began not more than 180 days before you receive the notice of
termination.
C. Mutual Agreement to Terminate the Franchise
A franchise can be terminated by an agreement in writing between you and
your supplier if the agreement is entered into not more than 180 days before
the effective date of the termination and you receive a copy of that agreement,
together with this summary statement of your rights under the Act. You may
cancel the agreement to terminate within 7 days after you receive a copy of the
agreement, by mailing (by certified mail) a written statement to this effect to
your supplier.
D. Withdrawal From the Market Area
Under certain conditions, the Act permits your supplier to terminate your
franchise if your supplier is withdrawing from marketing activities in the
entire geographic area in which you operate. You should read the Act for a more
detailed description of the conditions under which market withdrawal
terminations are permitted. See 15 U.S.C. Section 2802(b)(E).
E. Other Events Permitting a Termination
If your supplier learns within the time period specified in the Act (which
in no case is more than 120 days prior to the termination notice) that one of
the following events has occurred, your supplier may terminate your franchise
agreement:
(1) Fraud or criminal misconduct by you that relates to the operation of
your marketing premises.
(2) You declare bankruptcy or a court determines that you are insolvent
(3) You have a severe physical or mental disability lasting at least 3
months which makes you unable to provide for the continued proper operation of
the marketing premises.
(4) Expiration of your supplier's underlying lease to the leased
marketing premises. If, (a) your supplier gave you written notice before the
beginning of the term of the franchise of the duration of the underlying lease
and that the underlying lease might expire and not be renewed during the term
of the franchise, (b) your franchisor offered to assign to you, during the
90-day period after notification of termination or nonrenewal was given, any
option which the franchisor held to extend the underlying lease or to purchase
the marketing premises (such an assignment may be conditioned on the franchisor
receiving from both the landowner and the franchisee an unconditional release
from liability for specified events occurring after the assignment): and (c) in
a situation in which the franchisee acquires possession of the leased marketing
premises effective immediately after the loss of the right of the franchisor
to grant possession, the franchisor, upon written request of the franchisee,
made a bona fide offer to sell or assign to the franchisee the franchiser's
interest in any improvements or equipment located on the premises, or offered
by the franchisee a right of first refusal of any offer from another person to
purchase the franchisor's interest in the improvements and equipment.
(5) Condemnation or other taking by the government, in whole or in part of
the marketing premises pursuant to the power of eminent domain. If the
termination is based on a condemnation or other taking your supplier must give
you a fair share of any compensation which he receives for any loss of business
opportunity or good will.
(6) Loss of your supplier's right to grant the use of the trademark that
is the subject of the franchise, unless the loss was because of bad faith
actions by your supplier relating to trademark abuse, violation of Federal or
State law, or other fault or negligence.
(7) Destruction (other than by your supplier) of all or a substantial part
of your marketing premises. If the termination is based on the destruction of
the marketing premises and if the premises are rebuilt or replaced by your
supplier and operated under a franchise your supplier must give you a right of
first refusal to this new franchise.
(8) Your failure to make payments to your supplier of any sums to which
your supplier is legally entitled.
(9) Your failure to operate the marketing premises for 7 consecutive
days, or any shorter period of time which taking into account facts and
circumstances, amounts to an unreasonable period of time not to operate.
(10) Your intentional adulteration, mislabeling or misbranding of motor
fuels or other trademark violations.
(11) Your failure to comply with Federal, State, or local laws or
regulations of which you have knowledge and that relate to the operation of
the marketing premises.
(12) Your conviction of any felony involving moral turpitude.
(13) Any event the affects the franchise relationship and as a result of
which termination is reasonable.
II. REASONS FOR NONRENEWAL
If your supplier gives notice that he does not intend to renew any
franchise agreement the Act requires that the reason for nonrenewal must be
either one of the reasons for termination listed immediately above, or one of
the reasons for nonrenewal listed below.
A. Failure to Agree on Changes or Additions To Franchise
If you and your supplier fail to agree to changes in the franchise that
your supplier in good faith has determined are required, and your supplier's
insistence on the changes is not for the purpose of converting the leasers
premises to a company operation or otherwise preventing the renewal of the
franchise relationship, your supplier may decline to renew the franchise.
B. Customer Complaints
If your supplier has received numerous customer complaints relating to the
condition of your marketing premises or to the conduct of any of your
employees, and you have failed to take prompt corrective action after having
been notified of these complaints, your supplier may decline to renew the
franchise.
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C. Unsafe or Unhealthful Operations
If you have failed repeatedly to operate your marketing premises in a
clean, safe and healthful manner after repeated notices from your supplier,
your supplier may decline to renew the franchise.
D. Operation of Franchise is Uneconomical
Under certain conditions specified in the Act, your supplier may decline
to renew your franchise if he has determined that renewal of the franchise is
likely to be uneconomical. Your supplier may also decline to renew your
franchise if he has decided to convert your marketing premises to a use other
than for the sale of motor fuel, to sell the premises, or to materially alter,
add to, or replace the premises.
III. NOTICE REQUIREMENTS FOR TERMINATION OR NONRENEWAL
The following is a description of the requirements for the notice which your
supplier must give you before he may terminate your franchise or decline to
renew your franchise relationship. These notice requirements apply to all
franchise terminations, including franchises entered into before June 19, 1978
and trial and interim franchises, as well as to all nonrenewals of franchise
relationships.
A. How Much Notice Is Required
In most cases, your supplier must give you notice of termination or
nonrenewal at least 90 days before the termination or nonrenewal takes effect.
In circumstances where it would not be reasonable for your supplier to
give you 90 days notice, he must give you notice as soon as he can do so. In
addition, if the franchise involves leased marketing premises, your supplier
may not establish a new franchise relationship involving the same premises
until 30 days after notice was given to you or the date the termination or
nonrenewal takes effect, whichever is later. If the franchise agreement
permits, your supplier may repossess the premises and, in reasonable
circumstances, operate them through his employees or agents.
If the termination or nonrenewal is based upon a determination to withdraw
from the marketing of motor fuel in the area, your supplier must give you
notice at least 180 days before the termination or nonrenewal takes effect.
B. Manner and Contents of Notice
To be valid, the notice must be in writing and must be sent by certified
mail or personally delivered to you. It must contain: (1) A statement of your
supplier's intention to terminate the franchise or not to renew the franchise
relationship, together with his reasons for this action: (2) The date the
termination or nonrenewal takes effect, and (3) A copy of this summary.
IV. TRIAL FRANCHISES AND INTERIM FRANCHISES
The following is a description of the special requirements that apply to trial
and interim franchises.
A. Trial Franchises
A trial franchise is a franchise, entered into on or after June 19, 1978,
in which the franchisee has not previously been a party to a franchise with the
franchisor and which has an initial term of 1 year or less. A trial franchise
must be in writing and must make certain disclosures, including that it is a
trial franchise, and that the franchisor has the right not to renew the
franchise relationship at the end of the initial term by giving the franchise
proper notice.
The unexpired portion of a transferred franchise (other than as a trial
franchise as described above) does not qualify as a trial franchise.
In exercising his right not to renew a trial franchise at the end of its
initial term, your supplier must comply with the notice requirements described
above under the heading "Notice Requirements for Termination or Nonrenewal."
B. Interim Franchises
An interim franchise is a franchise, entered into on or after June 19,
1978, the duration of which, when combined with the terms of all prior interim
franchises between the franchisor and the franchisee, does not exceed three
years, and which begins immediately after the expiration of a prior franchise
involving the same marketing premises which was not renewed based on a lawful
determination by the franchisor to withdraw from marketing activities in the
geographic area in which the franchisee operates.
An interim franchise must be in writing and must make certain disclosures,
including that it is an interim franchise and that the franchisor has the right
not to renew the franchise at the end of the term based upon a lawful
determination to withdraw from marketing activities in the geographic area in
which the franchisee operates.
In exercising his right not to renew a franchise relationship under an
interim franchise at the end of its term, your supplier must comply with the
notice requirements described above under the heading "Notice Requirements for
Termination or Nonrenewal."
V. YOUR LEGAL RIGHTS
Under the enforcement provisions of the Act, you have the right to sue your
supplier if he fails to comply with the requirements of the Act. The courts are
authorized to grant whatever equitable relief is necessary to remedy the effects
of your supplier's failure to comply with the requirements of the Act, including
declaratory judgment, mandatory or prohibitive injunctive relief, and interim
equitable relief. Actual damages, exemplary (punitive) damages under certain
circumstances and reasonable attorney and expert witness fees are also
authorized. For a more detailed description of these legal remedies you should
read the text of the Act. 15 U S C sections 2801-2806.
VI. WAIVER OF RIGHTS AND APPLICABLE STATE LAW
Your supplier may not require, as a condition of entering into renewing the
franchise relationship, that you relinquish or waive any right that you have
under this or any other Federal law or applicable State law. In addition, no
provision in a franchise agreement would be valid or enforceable if the
provision specifies that the franchise would be governed by the law of any State
other than the one in which the principal place of business for the franchise is
located.
FURTHER DISCUSSION OF TITLE I - DEFINITIONS AND LEGAL REMEDIES
I. DEFINITIONS
Section 101 of the Petroleum Marketing Practices Act sets forth definitions
of the key terms used throughout the franchise protection provisions of the Act.
The definitions from the Act which are listed below are of those terms which are
most essential for purposes of the summary statement. (You should consult
section 101 of the Act for additional definitions not included here)
A. Franchise
A "franchise" is any contract between a refiner and distributor, between a
refiner and a retailer, between a distributor and another distributor, or
between a distributor and a retailer, under which a refiner or distributor (as
the case may be) authorizes or permits a retailer or distributor to use, in
connection with the sale, consignment, or distribution of motor fuel, a
trademark which is owned or controlled by such refiner or by a refiner which
supplies motor fuel to the distributor which authorizes or permits such use.
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The term "franchise" includes any contract under which a retailer or
distributor (as the case may be) is authorized or permitted to occupy leased
marketing premises, which premises are to be employed in connection with the
sale, consignment, or distribution of motor fuel under a trademark which is
owned or controlled by such refiner or by a refiner which supplies motor fuel
to the distributor which authorizes or permits such occupancy. The term also
includes any contract pertaining to the supply of motor fuel which is to be
sold, consigned or distributed under a trademark owned or controlled by a
refiner, or under a contract which has existed continuously since May 15, 1973,
and pursuant to which, on May 15, 1973, motor fuel was sold, consigned or
distributed under a trademark owned or controlled on such date by a refiner.
The unexpired portion of a transferred franchise is also included in the
definition of the term.
B. Franchise Relationship
The term "franchise relationship" refers to the respective motor fuel
marketing or distribution obligations and responsibilities of a franchisor and
a franchisee which result from the marketing of motor fuel under a franchise.
C. Franchisee
A "franchisee" is a retailer or distributor who is authorized or
permitted, under a franchise, to use a trademark in connection with the sale,
consignment, or distribution of motor fuel.
D. Franchisor
A "franchisor" is a refiner or distributor who authorizes or permits,
under a franchise, a retailer or distributor to use a trademark in connection
with the sale, consignment, or distribution of motor fuel.
E. Marketing Premises
"Marketing premises" are the premises which, under a franchise, are to be
employed by the franchisee in connection with the sale, consignment, or
distribution of motor fuel.
F. Leased Marketing Premises
"Leased marketing premises" are marketing premises owned, leased or in any
way controlled by a franchisor and which the franchisee is authorized or
permitted, under the franchise, to employ in connection with the sale,
consignment, or distribution of motor fuel.
G. Fail to Renew and Nonrenewal
The terms "fail to renew" and "nonrenewal" refer to a failure to
reinstate, continue, or extend a franchise relationship (1) at the conclusion
of the term, or on the expiration date, stated in the relevant franchise. (2)
at any time, in the case of the relevant franchise which does not state a term
of duration or an expiration date, or (3) following a termination (on or after
June 19, 1978) of the relevant franchise which was entered into prior to
June 19, 1978 and has not been renewed after such date.
II. Legal Remedies Available to Franchisee
The following is a more detailed description of the remedies available to
the franchisee if a franchise is terminated or not renewed in a way that fails
to comply with the Act.
A. Franchisee's Right to Sue
A franchisee may bring a civil action in the United States District Court
against a franchisor who does not comply with the requirements of the Act. The
action must be brought within one year after the date of termination or
nonrenewal or the date the franchisor fails to comply with the requirements of
the law, whichever is later.
B. Equitable Relief
Courts are authorized to grant whatever equitable relief is necessary to
remedy the effects of a violation of the law's requirements. Courts are
directed to grant a preliminary injunction if the franchisee shows that there
are sufficiently serious questions, going to the merits of the case, to make
them a fair ground for litigation, and if, on balance, the hardship which the
franchisee would suffer if the preliminary injunction is not granted will be
greater than the hardship which the franchisor would suffer if such relief is
granted.
Courts are not required to order continuation or renewal of the franchise
relationship if the action was brought after the expiration of the period
during which the franchisee was on notice concerning the franchisor's intention
to terminate or not renew the franchise agreement.
C. Burden of Proof
In an action under the Act, the franchisee has the burden of proving that
the franchise was terminated or not renewed. The franchisor has the burden of
proving, as an affirmative defense, that the termination or nonrenewal was
permitted under the Act and, if applicable, that the franchisor complied with
certain other requirements relating to terminations and nonrenewals based on
condemnation or destruction of the marketing premises.
D. Damages
A franchisee who prevails in an action under the Act is entitled to actual
damages and reasonable attorney and expert witness fees. If the action was
based upon conduct of the franchisor which was in willful disregard of the
Act's requirements or the franchisee's rights under the Act, exemplary
(punitive) damages may be awarded where appropriate. The court, and not the
jury, will decide whether to award exemplary damages and, if so, in what
amount.
On the other hand, if the court finds that the franchisee's action is
frivolous, it may order the franchisee to pay reasonable attorney and expert
witness fees.
E. Franchisor's Defense to Permanent Injunctive Relief
Courts may not order a continuation of renewal of a franchise relationship
if the franchisor shows that the basis of the non-renewal of the franchise
relationship was a determination made in good faith and in the normal course of
business.
(1) To convert the leased marketing premises to a use other than the
sale or distribution of motor fuel;
(2) To materially alter, add to, or replace such premises;
(3) To sell such premises;
(4) To withdraw from marketing activities in the geographic area in which
such premises are located; or
(5) That the renewal of the franchise relationship is likely to be
uneconomical to the franchisor despite any reasonable changes or
additions to the franchise provisions which may be acceptable to the
franchise.
In making this defense, the franchisor also must show that he has complied
with the notice provisions of the Act.
This defense to permanent injunctive relief, however, does not affect the
franchisee's right to recover actual damages and reasonable attorney and expert
witness fees if the nonrenewal is otherwise prohibited under the Act.
Issued in Washington, D.C. on June 12, 1996
Form BJC-(R)-PMPA (10-2001)
Page 4 - Revised Summary of Title I of the Petroleum Marketing Practices Act
(PMPA)
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
("BP LOGO")
RIDER TO BRANDED JOBBER CONTRACT
THIS RIDER TO BRANDED JOBBER CONTRACT (the "Rider") is executed
simultaneously with and hereby made a part of that certain Branded Jobber
Contract by and between BP PRODUCTS NORTH AMERICA INC., a Maryland corporation
("Company"), and MAPCO EXPRESS, INC. ("Jobber") dated December 15, 2005 (the
"Branded Jobber Contract").
WITNESSETH, that the following further terms and conditions are
incorporated into and made a part of the Branded Jobber Contract, and
subsequent renewals to this Branded Jobber Contract as required by Paragraph 35
below, which together with this Rider, are herein collectively referred to as
the "Contract".
34. DEFINITIONS. Capitalized terms used but not defined in this Rider
shall have the meanings ascribed to such terms in the Branded Jobber Contract.
As used in this Rider, the following terms shall have the meaning ascribed to
them below:
(a) "Company's Branded Motor Fuels" shall mean Company's branded motor
fuels, but, not including diesel fuel, kerosene or other distillates, sold to
Jobber by Company for sale at retail outlets.
(b) "Rider Volume" shall mean any quantity of Company's Branded Motor
Fuels purchased by Jobber under this Contract; provided, however that it shall
not include any quantity of Company's Branded Motor Fuels purchased by Jobber
under this Contract on account of sites owned, operated and/or supplied by
Jobber and branded BP, Amoco or any subsidiary of Company at the time of
execution of this Contract
(c) "Rider Volume Schedule" shall mean this schedule attached hereto as
Exhibit R-1 to this Rider and made a part hereof.
35. OBLIGATION TO RENEW. Jobber agrees that it will act as a branded
jobber of Company for a minimum period of fifteen (15) years commencing upon
the date of this Contract. Upon the expiration of this Contract, Jobber, as
often as necessary in order to reach the required fifteen (15) year minimum
period (the "Supply Period"), shall enter into renewal contracts on Company's
standard terms and conditions in effect at the time of renewal for branded
jobbers in the area of the country where Jobber operates, unless this Contract
or any renewal or extension thereof has been terminated or non-renewed by
Company before the expiration of the Supply Period.
36. VOLUME REQUIREMENT. Jobber shall purchase from Company, on an annual
basis, the Rider Volume of Company's Branded Motor Fuels set forth on the Rider
Volume Schedule attached hereto as Exhibit R-1. Each year, Jobber's obligations
under this Rider shall correspond to the Volume requirements set forth on the
Rider Volume Schedule for that year of the Supply Period.
37. SUPPLY CONSTRAINT. In the event that Company cannot deliver to
Jobber enough of Company's Branded Motor Fuels to meet the requirements of
Jobber (a "Supply Constraint") and such Supply Constraint interferes with
Jobber's ability to meet the Rider Volume requirements set forth on the Rider
Volume Schedule for a period of time (the "Supply Constraint Period"), then
Jobber's requirements to acquire Volume from Company shall be reduced for the
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<PAGE>
duration of the Supply Constraint Period to the extent (and only to the extent)
that Company cannot deliver sufficient Company's Branded Motor Fuels due to the
Supply Constraint, and Jobber shall not be required to pay any Volume Damages
(defined below) or portion thereof with respect to any deficiency caused by the
Supply Constraint.
38. DAMAGES.
(a) In the event that Jobber fails (for any reason except as set forth in
paragraph 37 above) to acquire from Company the minimum amount of Rider Volume
required for each year of the Supply Period as specified on the Rider Volume
Schedule (the "Minimum Volume"), Jobber shall pay to Company liquidated damages
(the "Volume Damages") computed using the following formula: Yearly Minimum
Volume (as set forth on the Rider Volume Schedule) for such year of the Supply
Period less the number of gallons of Company's Branded Motor Fuels actually
purchased by Jobber from Company during such year of the Supply Period, the
difference of which shall be multiplied by [***]. The Volume Damages shall be in
lieu of and replaces the payment required in Paragraph 16(g)(3) of the Contract.
Jobber also acknowledges and agrees that Company's rights and remedies pursuant
to this Rider shall be without prejudice to all other rights and remedies
available to Company pursuant to the Branded Jobber Contract, at law, or in
equity, including, but not limited to, the right to seek actual and any
consequential damages caused by or related to Jobber's breach of the Branded
Jobber Contract, this Rider or any other provision therein or herein.
(b) The amounts due under this Section shall be paid to Company within
thirty(30) days of becoming due (the "Due Date"), which Due Date shall be the
first day after each anniversary during the Supply Period of the date written in
the Preamble of this Rider to Branded Jobber Contract. Company shall have the
right to debit any amounts (or fraction thereof) owed by Jobber to Company
pursuant to this Rider via EFT from any accounts established under paragraph
4(b) to this Contract or otherwise. In the event that the Branded Jobber
Contract is terminated before the expiration of the Supply Period or is not
renewed before the expiration of the Supply Period, all amounts which would have
come due during or at completion of the Supply Period on account of Jobber
failing to sell the Rider Volume set forth on the Rider Volume Schedule, at the
option of Company, become immediately due and payable to Company upon notice to
Jobber, and Jobber shall pay such amounts within thirty (30) days after demand
by Company. In the event Jobber does not pay Company any amounts due within said
thirty (30) day period, such amounts shall accrue interest at the rate of
eighteen percent (18%) per annum until paid (or if 18% exceeds the highest rate
allowable by law, then the highest rate allowable by law), which interest shall
be added to and paid with such amounts, and Company shall also be entitled to
collect from Jobber all attorney's fees and any collection agency fees incurred
by Company in collecting such amounts.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
41. CERTAIN CHANGES TO PRIOR PARAGRAPHS.
(a) The following shall be appended to the end of Paragraph 2(a): "Jobber
covenants and agrees that it shall not materially alter the volume of Products
if purchases or frequency with which it purchases such Products from Company for
the sites set forth on Attachment A, or not, without the express written consent
of Company, which consent may be given or withheld in Company's sole
discretion."
(b) The following shall be appended to the end of Paragraph 2(c): "The
foregoing minimum volume requirements shall only be utilized to determine the
minimum volume standards of a BP branded jobber and for no other purpose.
(c) Intentionally Deleted.
42. THIS RIDER shall be valid and effective only upon full execution of
the Branded Jobber Contract.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
IN WITNESS WHEREOF, Company and Jobber have duly executed this Rider the day
and year first above written.
MAPCO EXPRESS, INC.
By: /s/ Uzi Yemin /s/ Lynwood E. Gregory III
Lynwood E. Gregory III
Name: Uzi Yemin COO EXE VP
Title: President
BP PRODUCTS NORTH AMERICA INC.
By: /s/ Roger E. Williams
Name: Roger E. Williams
Title: Sr. Vice President
US Fuels
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
EXHIBIT R-1
(RIDER VOLUME SCHEDULE)
NASHVILLE SITES
___________________________________________________
YEAR ANNUAL MINIMUM VOLUME
COMMITMENT (IN GALLONS)
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[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
(BP LOGO) UNLIMITED GUARANTY
DJC(R)-GUAH (12-2001)
For Value Received and to induce BP Products North America Inc. (hereinafter
referred to as Company*)
28100 Torch Parkway, Warrenville, IL 60555 to lend money or
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(State complete Company address)
otherwise extend financial accommodation to or for the account of
MAPCO Express, Inc.
--------------------------------------------------------------------------------
a Corporation with its principal offices located at
----------------------------------------
830 Crescent Centre Drive, Suite 300, Franklin, TN 37067
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(State complete address of Jobber-Debtor's principal office)
(herein called "Debtor"). The Undersigned Hereby Unconditionally Guarantee(s)
Payment When Due, whether by declaration or otherwise, of any and all
indebtedness, including interest thereon, of Debtor to Company, however such
indebtedness may arise, whether as principal, guarantor, endorser or otherwise,
now or hereafter existing, including but not limited to payments or indebtedness
received by Company from Debtor which Company may subsequently be required to
relinquish under applicable law because of Debtor insolvency, (all such
indebtedness being herein called "Debt"), and agree(s) to pay all expenses
(including attorneys' fees and legal expenses) incurred by Company to collect
Debt and in enforcing this guaranty.
The Undersigned hereby waive(s) presentment, demand and protest; notice of
acceptance of this guaranty; notice of the creation of Debt, of any default and
of protect, dishonor, or other action taken in reliance hereon; all demands and
[illegible] of any kind in connection with this guaranty or Debt; and all
diligence in collection or protection of or realization upon Debt.
Company may, from time to time, either before or after receipt of a notice of
discontinuance of this guaranty, without notice to or consent of any of the
Undersigned, and without in any way affecting any on the Undersigned's ability
or Company's rights hereunder; alter, accelerate, extend, renew or change this
time, place, manner or terms of payment of, or grant indulgences with respect
to, Debt; increase or decrease the amount of Debt or the rate of interest on
Debt, obtain the primary or secondary liability of any party or parties, in
addition to the Undersigned, with respect to Debt, release or compromise any
liability of any of the Undersigned hereunder or any other party or parties;
primarily or secondarily liable on Debt; release, foreclose on or otherwise
exercise Company's secured interests in any real, tangible or intangible
collateral securing any obligation of Debtor to Company, whether or not covered
hereby; apply to Debt in such manner as Company shall determine, any sums
received by it from Debtor or from any other source to be applied to Debtor's
obligations; or resort to any or all of the Undersigned for payment of any or
all Debt, whether or not Company shall have resorted to any property securing
Debt or shall have proceeded against any other of the Undersigned or any other
party primarily or secondarily liable on Debt.
This Guaranty Shall Be Continuing Guaranty, provided that it may be discontinued
as to any of the Undersigned only by his/her giving written notice by certified
mail to Company at the address set out above of the discontinuance of this
guaranty as to the Undersigned giving such notice, but no such notice shall be
effective in any respect until it is actually received by Company and shall not
affect the obligations hereunder of the Undersigned giving such notice or
Company's rights or authority hereunder with respect to any Debt, including
contingent unliquidated Debt, existing at the date of receipt of such notice by
Company, any interest subsequently accruing thereon or any expense incurred by
Company in endeavoring to collect any of such Debt and in enforcing this
guaranty against such Undersigned. This guaranty shall survive the death of any
of the Undersigned, provided that upon actually receiving written notice, sent
to Company by certified mail, of the death of any of the Undersigned, Company
shall be deemed to have thereby received a notice of discontinuance on behalf of
such deceased Undersigned Any such notice of discontinuance by any of the
Undersigned shall not affect the obligations hereunder of any other of the
Undersigned.
Signed and delivered at Nashville, TN this 2 day of November, 2005
/s/ J. Boles MAPCO EXPRESS, INC
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Witness Company
/s/ Lynwood E. Gregory III ---------------------------
Lynwood E. Gregory III Signature
COO EXE VP
UZI YEMIN / PRESIDENT
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Printed name/Title
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Witness Signature
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Print Name
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Home Address
Note: When executed by a corporation, the corporate seal should be affixed and
there should be attached to the guaranty a certified copy of the
resolution of the Board of Directors authorizing the signing office to
execute and deliver the guaranty in the name and on behalf of the
corporation.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
[BP LOGO]
Date: DECEMBER 15, 2005
MAPCO EXPRESS, INC.
830 CRESCENT CENTRE DRIVE, SUITE 300, FRANKLIN TN 37067
BP BRANDED JOBBER CONTRACT SIDE LETTER
--------------------------------------
Dear MAPCO EXPRESS, INC.:
PARAGRAPH 4(a) - CREDIT POLICY AND FORMS OF SECURITY
----------------------------------------------------
As a substitute for the requirement in paragraph 4(a) of the Contract that
Jobber execute an Unlimited Guaranty under all circumstances, Company will
instead require that Jobber provide either an Unlimited Guaranty or some other
form of security acceptable to Company, in its sole discretion. In addition, if
Company does extend credit to Jobber, it will do so according to an established
credit policy, as amended from time to time. Notwithstanding the above, all
other terms and conditions in paragraph 4(a) will remain unchanged.
PARAGRAPHS 12(a) - JOBBER'S SALE OF ALL ASSETS
----------------------------------------------
As an alternative to the requirement in paragraph 12(a) that Jobber must
provide Company with a Right of First Offer on those assets identified with or
by Company's Trade Identities, Jobber may elect to provide Company either of
the following:
1) a right to match a bona fide agreement executed by Jobber and a third party
purchaser ("Right of First Refusal") on ALL of Jobber's assets directly
associated with its petroleum business; or
2) a Right of First Refusal on those assets identified with or by Company's
Trade Identities.
The alternative set forth in this paragraph will be limited to those situations
where Jobber intends to sell, convey or transfer all or substantially all of
its petroleum business. Notwithstanding the above, all other terms and
conditions in paragraph 12(a) will remain unchanged. Company's assignment
rights under paragraph 12(k) will include the right to assign its Right of
First Refusal to one or more third-party purchasers of its choosing.
PARAGRAPH 12(f) - JOBBER SALE OF PETROLEUM BUSINESS
---------------------------------------------------
As an alternative to the Company's Right to Purchase stated in paragraph 12(f),
Jobber may elect to provide Company either of the following:
1) a Right of First Refusal on its petroleum business; or
2) a Right of First Refusal on those assets identified with or by Company's
Trade Identities.
The alternative set forth in this paragraph will be limited to those
situations where Jobber intends to sell, convey or transfer all or
substantially all of its petroleum business. Notwithstanding the above, all
other terms and conditions in paragraph 12(f) will remain unchanged. Company's
assignment rights under paragraph 12(k) will include the right to assign its
Right of First Refusal to one or more third-party purchasers of its choosing.
Page 1
(4-2002)
[***} CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
PARAGRAPHS 12(a) AND 12(f) -- RIGHT OF FIRST REFUSAL PROCEDURES If Jobber elects
to provide Company with a Right of First Refusal as provided above, Jobber
agrees to promptly submit to Company complete and fully executed copies of all
contract documents which comprise the proposed agreement and any additional
information, facts and data required by Company: to evaluate the bona fide
nature of the agreement; and, should the proposed agreement include Jobber's
request to assign the Contract, to evaluate the third-party purchaser's
qualifications to be a Company jobber, Company will thereafter have 60 days
within which to exercise its Right of First Refusal, by written notice to
Jobber. Closing will be held at a time and place agreeable to Company and
Jobber, but no later than 60 days after Company elects to exercise its Right of
First Refusal. Jobber will convey all real property with good and marketable
title and all other property in contractual forms acceptable to Company, subject
only to such liens, encumbrances and commercially reasonable provisions that
were acceptable to the third-party purchaser.
PARAGRAPHS 12(e), 12(h) AND 16(d) -- AGE OF MAJORITY FOR IMMEDIATE FAMILY
MEMBERS AND FELLOW STAKEHOLDERS
As a substitute for Company's age-21 requirement, Company will instead allow
immediate Family Members and Fellow Stakeholders to assume ownership positions
and other rights under the Contract if they have reached the applicable age of
majority. Notwithstanding the above, all other terms and conditions in
paragraphs 12(e), 12(h) and 16(d) will remain unchanged.
PARAGRAPHS 16(f) AND ATTACHMENT A -- THE NETWORK INTEGRATION PROCESS
In those situations where a heritage BP or Amoco-branded retail site is
debranded after not being offered the new brand - after being reviewed as part
of the Company's official Network Integration Process - Company will remove the
site in question and its corresponding volume commitment by adjusting and
amending the applicable Attachment A. Notwithstanding the above, all other
terms and conditions in paragraph 16(f) and any other applicable provisions
will remain unchanged.
PARAGRAPHS 16(g) -- WAIVER OF EARLY TERMINATION FEE
Company will not enforce the damages provision of paragraph 16(g)(3) of the
Contract in situations where, in the Company's sole opinion, Jobber exhibits
severe financial distress due to changes in the marketplace beyond the
Jobber's control.
Notwithstanding the above, all other terms and conditions in the Contract will
remain unchanged.
This side letter will apply to the Branded Jobber Contract (Retail) dated
December 15, 2005. Jobber's continued purchase of the Products covered by this
Contract will serve as its agreement to abide by all of the terms and conditions
therein, including the terms and conditions in this Side Letter.
Sincerely,
/s/ Roger E. Williams
--------------------------
Name
SR. VICE PRESIDENT
BP PRODUCTS NORTH AMERICA
US FUELS
--------------------------
Title
Page 2 - BP Branded Jobber Contract Side Letter (4-2002)
for MAPCO Express, Inc.
[* * *] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
bp
[bp logo]
Keith Bell
VP Segments - Retail & Fuels Focused BP Products North America Inc.
U.S. Fuels Operating Unit 28100 Torch Parkway
Suite 400
Warrenville, IL 60555
Direct 630 836 5554
January 9, 2006
Personal & Confidential
-----------------------
MAPCO Express, Inc.
830 Crescent Centre Drive
Suite 300
Franklin, TN 37067
Attn: Uzi Yemin
Re: BRANDED JOBBER CONTRACT -- LETTER AMENDMENT
Dear Mr. Yemin,
Please refer to your Branded Jobber Contract and related agreements between BP
Products North America Inc., a Maryland corporation ("BP") and MAPCO Express,
Inc. ("MAPCO") dated December 15, 2005 (collectively "Contract").
BP agrees to amend the Franchise in the following respects:
1. JOIP: BP will extend its Jobber Outlet Incentive Program ("JOIP") or other
incentive programs generally offered to other BP branded jobbers to MAPCO for a
term of 15 years, subject to all of the terms and conditions of this letter and
the Contract. Each individual JOIP or Incentive Agreement must still meet BP's
then in effect criteria for approvals, but BP will not unreasonably withhold
approval. Nothing in this paragraph should be construed to extend to MAPCO any
rights to Incentives other than the BP Incentive programs otherwise currently in
effect for all BP branded jobbers.
Jobber will be entitled to receive incentives under this JOIP Contract and
participate in the JOIP provided, and only if, Jobber at all times during the
term of the Contract and renewals causes all of its Jobber-supplied retail
outlets displaying Company's Trade Identities to conform to Company's image
programs and standards, complies with all other Company marketing contracts,
agreements, programs, standards and strategies, and remains a party to a valid
and in-force branded jobber contract by and between Jobber and Company. A
violation of or inability to comply with any term or condition of this
agreement, including this paragraph, will allow Company, in its discretion, to
terminate this JOIP Incentive.
[* * *] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
2. INCENTIVE PAYMENTS -- NASHVILLE TERMINAL: In addition to the above site
specific JOIP, for all BP branded product purchased at BP's Nashville terminal,
BP will pay to MAPCO [***] for all gasoline purchased by MAPCO from BP and
resold at Jobber's Retail Outlets in excess of the volume requirements set forth
below for an uninterrupted, consecutive period of 15 years (Incentive Payment).
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Year Volume Requirement
Incentive Payment
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2006 [***]
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2007 [***]
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2008 [***]
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2009 [***]
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2010 [***]
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2011 [***]
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2012 [***]
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2013 [***]
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2014 [***]
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2015 [***]
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2016 [***]
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2017 [***]
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2018 [***]
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2019 [***]
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2020 [***]
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Jobber will be entitled to receive the incentives set forth in this Agreement if
and only if, Jobber at all times during the term of the Contract and renewals
causes all of its Jobber-supplied retail outlets displaying Company's Trade
Identities to conform to Company's image programs and standards, complies with
all other Company marketing contracts, agreements, programs, standards and
strategies, and remains a party to a valid and in-force branded jobber contract
by and between Jobber and Company. A violation of or inability to comply with
any term or condition of this Agreement, including this paragraph, will allow
Company, in its discretion, to terminate these Incentive Payments.
[***] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
[BP LOGO]
[BP LOGO]
Volume reporting for purposes of incentive payments set forth in this paragraph
shall [***] (the "Start Date"). Mapco reporting of volumes and requests to BP
for reimbursement must be made through the jobber portal at bpconnection.com.
Unless otherwise agreed to between Mapco and BP, payments will be made to Mapco
on an annual basis via EFT or through other means at the BP's option, no later
than March 1 of the following calendar year.
3. BULK PLANTS: BP warrants that Paragraph 9 (a) of the Contract does not
obligate or require MAPCO to operate a Bulk Plant during the term of this
Contract.
Very truly yours,
/s/ Keith S. Bell
Vice President-Segments
ACCEPTED & AGREED TO:
MAPCO Express, Inc.
/S/ Lynwood E. Gregory III
------------------------
By: Lynwood E. Gregory III
Title: COO EXE VP
Paul Pierce
------------------------
By: Paul Pierce
Title: VP of Marketing
[***] CONFIDENTIAL TREATMENT REQUESTED