EXHIBIT 10(b)
AMENDMENT NO. 1
AND ASSIGNMENT AND ACCEPTANCE
DATED AS OF JUNE 7, 1993 TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 8, 1993
AMENDMENT NO. 1 AND ASSIGNMENT AND ACCEPTANCE (the
"Amendment and Assignment") dated as of June 7, 1993 by and
among TOSCO CORPORATION, a Nevada corporation ("Tosco"),
SEMINOLE FERTILIZER CORPORATION, a Delaware corporation
("Seminole") and BAYWAY REFINING COMPANY, a Delaware corporation
("Bayway") as co-borrowers (collectively, the "Borrowers"), the
banking institutions listed on Schedule 1.01(a) attached hereto
(the "Banks"), THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
("Chase"), as co-agent, BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION ("BofA"), as co-agent and co-arranger, and
THE FIRST NATIONAL BANK OF BOSTON ("FNBB") as agent (in that
capacity, the "Agent") and as arranger for the Banks.
Capitalized terms which are used herein without definition
and which are defined in the Credit Agreement referred to below
shall have the same meaning herein as in the Credit Agreement.
WHEREAS, the Borrowers, those Banks listed on Schedule
1.01(a) to the Credit Agreement as in effect immediately prior
to the date hereof, the Co-Agents, the Agent and the FMCP L/C
Bank are parties to that certain Credit Agreement dated as of
April 8, 1993 (as amended, restated, modified or supplemented
and in effect from time to time, the "Credit Agreement"); and
WHEREAS, each of FNBB, BofA and Chase desires to assign to
each of Internationale Nederlanden Bank, N.V. ("ING Bank"), Bank
Hapoalim B.M. ("Hapoalim"), United Jersey Bank ("United Jersey")
and The Yasuda Trust and Banking Co., Ltd. ("Yasuda") a portion
of its interests in and to all of its rights and obligations
under the Credit Agreement, including, without limitation, its
Commitment, and all Loans, Letter of Credit Reimbursement
Obligations and Acceptance Obligations owing to it.
NOW, THEREFORE, in consideration of the foregoing premises
the parties hereto hereby agree as follows:
1. Amendment to Credit Agreement. The Credit Agreement is
hereby amended by deleting Schedule 1.01(a) and Schedule 1.01(b)
thereto, and replacing them, respectively with Schedule 1.01(a)
and Schedule 1.01(b) attached hereto.
2. Assignment and Acceptance.
(a) Assignments. Each of FNBB, BofA and Chase
(collectively, the "Assignor Banks" and individually, an
"Assignor Bank") hereby sells and assigns to each of ING Bank,
Hapoalim, United Jersey and Yasuda (collectively the "Assignee
Banks" and individually an "Assignee Bank") a certain percentage
interest in and to all of such Assignor Bank's rights and
obligations under the Credit Agreement as of the Amendment and
Assignment Effective Date (as defined in Section 5 hereof),
including, without limitation, such percentage interest in the
Assignor Bank's Commitment as in effect on the Amendment and
Assignment Effective Date, and the outstanding Loans, Letter of
Credit Reimbursement Obligations and Acceptance Obligations
owing to the Assignor Bank on the Amendment and Assignment
Effective Date, and such percentage interest in the Revolving
Credit Note held by the Assignor Bank (such interest being
hereinafter referred to as the "Assigned Portion") such that,
after giving effect to the assignments contemplated hereby and
as of the Amendment and Assignment Effective Date, the
respective Commitments and Commitment percentages of the
Assignor Banks and the Assignee Banks shall be as set forth on
Schedule 1.01(b) to the Credit Agreement, as amended hereby and
each Bank shall have that percentage interest in all outstanding
Loans, Letter of Credit Reimbursement Obligations and Acceptance
Obligations. Notwithstanding any term or provision of Section
10.03 of the Credit Agreement to the contrary, the execution and
delivery hereof by the Assignor Banks, the Assignee Banks, the
Agent, the FMCP L/C Bank and the Borrowers shall constitute an
Assignment and Acceptance delivered in accordance with the
Credit Agreement and shall be effective in respect of the
assignments contemplated hereby. The parties hereto further
agree that, without the further consent of the Borrowers or the
Agent and without any further action by ING Bank, at any time
after the Amendment and Assignment Effective Date, ING Bank may
assign all (but not less, than all) of its rights and
obligations under the Credit Agreement, including, without
limitation, its Commitment, and its interest in the Loans,
Letter of Credit Reimbursement Obligations, FMCP L/C
Reimbursement Obligations and Acceptance Obligations owing to it
on the date of such assignment to any entity acquiring all or
substantially all of the assets of ING Bank; provided that such
assignee is acceptable to the beneficiary of the FMCP L/C; and
provided further that ING Bank shall give the Agent written
notice of said assignment within (7) days of the effective date
of said assignment, together with written notice of the address
of its assignee's domestic lending office and eurodollar lending
office. In the event of an assignment pursuant to the
immediately preceding sentence, such assignee bank shall be a
"Bank" under the Credit Agreement.
(b) Representations and Warranties of Assignor Banks.
Each Assignor Bank (i) represents and warrants that as of the
date hereof, its Commitment and Commitment percentage (without
giving effect to assignments thereof which have not yet become
effective, including, but not limited to, the assignment
contemplated hereby) is the amount set forth opposite such
Assignor Bank's name under the respective captions "Commitment"
and "Commitment Percentage" on Schedule 1.01(b) to the Credit
Agreement as in effect prior to the Amendment and Assignment
Effective Date; (ii) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any
adverse claim; (iii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or any Ancillary Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any Ancillary Agreement or any
other instrument or document furnished pursuant thereto; (iv)
makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any
Borrower or any of its Subsidiaries or the performance or
observance by any Borrower or any of its Subsidiaries of any of
its or their obligations under the Credit Agreement or any
Ancillary Agreement or any other instrument or document
furnished pursuant thereto; and (v) requests that the Agent and
the Borrowers exchange the Revolving Credit Notes referred to in
Section 2(a) above for new Revolving Credit Notes, each dated
the Closing Date, payable to the order of each Assignor Bank and
each Assignee Bank in the principal amount of the Commitment set
forth opposite such Assignor Bank's name and Assignee Bank's
name on Schedule 1.01(b) to the Credit Agreement as amended
hereby.
(c) Representations and Warranties of Assignee Banks.
Each Assignee Bank represents and warrants (i) that it has
received a copy of the Credit Agreement and each Ancillary
Agreement, together with copies of the financial statements
referred to in Section 4.11 of the Credit Agreement and the most
recent financial statements delivered to the Banks pursuant to
Sections 5.04(d)(i) and 5.04(e) of the Credit Agreement and such
other documents and information as it deems appropriate to make
its own credit analysis and decision to enter into this
Amendment and Assignment, (ii) that it will, independently and
without reliance upon any Assignor Bank or any other Bank or the
Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement or any Ancillary Agreement, (iii) that it is an
Eligible Assignee and (iv) that the making of Loans by such
Assignee Bank will not be unlawful as set forth in Section 2.16
of the Credit Agreement.
(d) Appointment of Agent. Each Assignee Bank (i)
appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit
Agreement and the Ancillary Agreements as are delegated to the
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, and (ii) agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement and the Ancillary
Agreements are required to be performed by it as a Bank.
(e) Respective Rights and Obligations of Assignor
Banks and Assignee Banks. As of the Amendment and Assignment
Effective Date, (i) each Assignee Bank shall, in addition to any
rights and obligations under the Credit Agreement held by it
immediately prior to the Amendment and Assignment Effective
Date, have the respective rights and obligations of a Bank under
the Credit Agreement and the Ancillary Agreements that have been
assigned to it pursuant to this Section 2 and under Sections
2.15 and 2.20 of the Credit Agreement with respect to the
applicable Assigned Portion and (ii) each Assignor Bank shall,
to the extent provided in this Section 2, relinquish its rights
and be released from its obligations under the Credit Agreement
and the Ancillary Agreements with respect to the applicable
Assigned Portion.
(f) Agent's Duties in Respect of Assignment and
Acceptance. From and after the Amendment and Assignment
Effective Date, the Agent shall record the information contained
in this Section 2 in the Register and shall make all payments
under the Credit Agreement and the Revolving Credit Notes in
respect of the interests assigned hereby (including, without
limitation, all payments of principal, interest and fees with
respect thereto) to the Assignee Banks. The Assignor Banks and
Assignee Banks shall make all appropriate adjustments under the
Credit Agreement and the Revolving Credit Notes for periods
prior to the Amendment and Assignment Effective Date directly
between themselves as directed by the Agent.
3. Scope of Amendment and Assignment. Except as
specifically amended by this Amendment and Assignment, the
Credit Agreement shall remain in full force and effect.
4. Representations and Warranties of Borrowers. The
Borrowers hereby jointly and severally represent and warrant to
the Banks, the Agent and the FMCP L/C Bank as follows:
(a) Representations and Warranties in Credit
Agreement. The representations and warranties of the Borrowers
contained in the Credit Agreement (i) were true and correct in
all material respects when made, and (ii) except to the extent
such representations and warranties by their terms are made
solely as of a prior date, continue to be true and correct in
all material respects on the date hereof.
(b) Authority, etc. The execution and delivery by
the Borrowers of this Amendment and Assignment and the
performance by the Borrowers of all of their agreements and
obligations under this Amendment and Assignment are within the
corporate authority of each of the Borrowers, have been duly
authorized by all necessary corporate action on the part of each
of the Borrowers, and do not and will not (i) contravene any
provision of any Borrower's charter, other incorporation papers,
by-laws or any stock provision, or any amendment thereof, (ii)
conflict with, or result in a breach of any material term,
condition or provision of, or constitute a default under or
result in the creation of any mortgage, lien, pledge, charge,
security interest or other encumbrance upon any of the property
of any Borrower under agreement, deed of trust, indenture,
mortgage or other instrument to which such Borrower is a party
or by which any of such Borrower's properties are bound, (iii)
violate or contravene any provision of any law, regulation,
order, ruling or interpretation thereunder or any decree, order
or judgment of any court or governmental or regulatory
authority, bureau, agency or official, (iv) require any waiver,
consent or approval by any creditor of any Borrower which has
not been obtained and (v) require any approval, consent, order,
authorization or license by, or giving notice to, or taking any
other action with respect to, any governmental or regulatory
authority or agency under any provision of any law, except those
actions which have been taken or will be taken prior to the date
of execution of this Amendment and Assignment.
(c) Enforceability of Obligations. This Amendment
and Assignment and the Credit Agreement, as amended hereby, and
the Notes delivered in connection herewith constitute the legal,
valid and binding obligations of the Borrowers enforceable
against the Borrowers in accordance with their respective terms,
provided that (i) enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applications affecting the rights and remedies
of creditors, and (ii) the availability of the remedies of
specific performance and injunctive relief may be subject to the
discretion of the court before which any proceedings for such
remedies may be brought.
5. Conditions to Effectiveness. The effective date of
this Amendment and Assignment (the "Amendment and Assignment
Effective Date") shall be that date on which the Agent receives
the following, in form and substance satisfactory to the Banks
and the FMCP L/C Bank:
(a) this Amendment and Assignment, executed and
delivered by the Borrowers;
(b) copies, certified by the Secretary of each of the
Borrowers to be true and complete on the date of execution of
this Amendment and Assignment, of the records of all actions
taken by such Borrower as may be required according to the terms
of such Borrower's charter, other incorporation documents and
by-laws to authorize (i) the execution and delivery of this
Amendment and Assignment by such Borrower and (ii) the
performance by such Borrower of all of its agreements and
obligations under this Amendment and Assignment, delivered by
the Borrowers. If, no such actions are required, the Borrower
shall deliver a letter to such effect; and
(c) Revolving Credit Notes executed and delivered by
the Borrowers and payable to the order of each of the Assignor
Banks and the Assignee Banks in the respective aggregate
principal amounts set forth under the caption "Commitment"
opposite such Bank's name on Schedule 1.01(b) hereto, as amended
hereby.
6. Transfer of Seminole Letters of Credit. Tosco and
Seminole hereby instruct the Agent to transfer from Seminole's
account to Tosco's account irrevocable Standby Letter of Credit
No. I-047-CFSI-50025939 dated October 22, 1992 and issued by the
Agent for the benefit of The Chase Manhattan Bank, Karachi,
Pakistan in the aggregate face amount of $459,243 and
irrevocable Standby Letter of Credit No. I-047-CFSI-50078193
dated April 30, 1993 and issued by the Agent for the benefit of
Cargill Fertilizer, Inc. in the aggregate face amount of
$7,250,000 (collectively, the "Seminole L/Cs"). Seminole hereby
assigns and Tosco hereby unconditionally and irrevocably assumes
all of Seminole's rights and obligations with respect to the
Seminole L/Cs, whether arising under the Credit Agreement or
under the Applications executed in connection with the Seminole
L/Cs. The assignment and assumption set forth in this Section 6
shall be effective as of May 4, 1993.
7. Execution in Counterparts. This Amendment and
Assignment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one
instrument. In making proof of this Amendment and Assignment it
shall not be necessary to produce or account for more than one
counterpart signed by each party hereto by and against which
enforcement hereof is sought.
8. Governing Law. This Amendment and Assignment
shall be construed according to and governed by the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Assignment to be duly executed as an agreement
under seal as of the date set forth at the beginning of this
Amendment and Assignment.
TOSCO CORPORATION
By:______________________________
Title:
SEMINOLE FERTILIZER CORPORATION
By:______________________________
Title:
BAYWAY REFINING COMPANY
By:______________________________
Title:
THE FIRST NATIONAL BANK OF
BOSTON, individually and
as Agent
By:______________________________
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Co-Agent
By:______________________________
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually
By:______________________________
Title:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
individually and as Co-Agent
By:______________________________
Title:
ARAB BANKING CORPORATION
By:______________________________
Title:
NATIONAL CITY BANK
By:______________________________
Title:
THE FUJI BANK, LIMITED
By:______________________________
Title:
INTERNATIONALE NEDERLANDEN
BANK N.V.
By:______________________________
Title:
BANK HAPOALIM B.M.
By:______________________________
Title:
UNITED JERSEY BANK
By:______________________________
Title:
THE YASUDA TRUST AND
BANKING CO., LTD.
By:______________________________
Title:
EXHIBIT 10(c)
AMENDMENT NO. 2
DATED AS OF DECEMBER 10, 1993 TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 8, 1993
AMENDMENT No. 2 (the "Amendment") dated as of December 10,
1993 by and among TOSCO CORPORATION, a Nevada corporation
("Tosco"), SEMINOLE FERTILIZER CORPORATION, a Delaware
corporation ("Seminole") and BAYWAY REFINING COMPANY, a Delaware
corporation ("Bayway") as co-borrowers (collectively, the
"Borrowers"), the financial institutions listed on Schedule
1.01(a) to the Credit Agreement referred to below (the "Banks"),
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION) ("Chase"), as
co-agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BofA"), as co-agent and co-arranger, and THE FIRST NATIONAL
BANK OF BOSTON ("FNBB") as agent (in that capacity, the "Agent")
and as arranger for the Banks.
Capitalized terms which are used herein without definition
and which are defined in the Credit Agreement referred to below
shall have the same meaning herein as in the Credit Agreement.
WHEREAS, the Borrowers, the Banks, the Co-Agents, the Agent
and the FMCP L/C Bank are parties to that certain Credit
Agreement dated as of April 8,1993 (as amended, restated,
modified or supplemented and in effect from time to tune, the
"Credit Agreement"); and
WHEREAS, Tosco completed the Seminole Sale on May 4,1993 in
accordance with the terms and conditions of Section 7.05 of the
Credit Agreement; and
WHEREAS, Tosco has informed the Banks that it intends to
acquire certain refining, distributing and wholesale and retail
marketing assets belonging to BP Oil Company in the Pacific
Northwest region of the United States of America (the "BP
Acquisition"); and
WHEREAS, in connection with the Seminole Sale and the BP
Acquisition, the parties wish to amend the Credit Agreement in
order to clarify that the Banks have no further obligation to
advance any Loans to Seminole or to issue any additional Credit
Instruments for the account of Seminole (other than certain
Letters of Credit which shall remain outstanding) and to make
certain other modifications to the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing premises
the parties hereto hereby agree as follows:
1. Amendment to Credit Agreement.
SECTION 1.1. Seminole. The Credit Agreement is hereby
amended to provide that (i) Seminole shall no longer be a
Borrower thereunder and (ii) none of the Banks shall be under
any
obligation to make Loans to, or to issue additional Credit
Instruments for the account of, Seminole; provided that
notwithstanding the foregoing, the FMCP L/C shall remain
outstanding and Seminole and Tosco shall continue to be liable
for the FMCP L/C Reimbursement Obligations. The Credit Agreement
is hereby amended mutatis mutandis as appropriate to reflect the
fact that Seminole is no longer a Borrower thereunder.
SECTION 1.2. Certain Definitions. Section 1.01 of the
Credit Agreement is hereby amended by deleting in their entirety
the definitions of "Eligible Fertilizer Fixed Assets", "Eligible
Fertilizer Raw Material Inventory", "Eligible Fertilizer Raw
Material Inventory Under Contract", "Eligible Finished
Fertilizer Inventory", "Eligible Finished Fertilizer Inventory
Under Contract", "Fertilizer Raw Material Inventory", "Finished
Fertilizer Inventory", "Seminole Advance", "Seminole Borrowing
Base", "Seminole Overadvance Amount", and "Seminole Revolving
Credit Debt". From and after the effective date of this
Amendment pursuant to Section 5 hereof, all references contained
in the Credit Agreement to the foregoing defined terms shall be
deemed to have been deleted.
SECTION 1.3. Application. Section 1.01 of the Credit
Agreement is hereby further amended by deleting the definition
of
"Application" in its entirety and replacing it with the
following:
"Application" means(a) an application by any Borrower
to the Agent for a Documentary Letter of Credit or Standby
Letter of Credit in the forms annexed hereto as Exhibit A-2
or A-3, respectively (or in the event another Bank issues a
Letter of Credit, such issuing Bank's forms), or (b) an
application by Seminole to the FMCP L/C Bank for an FMCP
L/C in such form as is satisfactory to the FMCP L/C Bank.
SECTION 1.4. Borrowing Base. Section 1.01 of the Credit
Agreement is hereby further amended by deleting the definition
of "Borrowing Base" in its entirety and replacing it with the
following:
"Borrowing Base" means, as to Tosco or Bayway, at any
given time, the sum of the following amounts owned by or
reflected on the books of such Borrower at such time:
(a) 100% of its Eligible Cash and Eligible Cash
Equivalents,
(b) 95% of its Eligible Investments,
(c) 90% of its Major Oil Company Receivables,
(d) 85% of the excess, if any, of its Eligible
Receivables over its Major Oil Company
Receivables,
(e) the lesser of (i) 85% of its Eligible Margin
Deposits, or (ii) $50,000,000,
(f) 80% of its Eligible Petroleum Inventory,
(g) 80% of its Eligible Petroleum Inventory Under
Contract, and
(h) 100% of its Paid but Unexpired Standby Letters of
Credit.
SECTION 1.5. Eligible Exchange Balances. Section 1.01 of
the Credit Agreement is hereby further amended by amending the
definition of "Eligible Exchange Balances" by deleting the
symbol "(i)" and the phrase ", and (ii) with respect to Eligible
Exchange Balances included in the Seminole Borrowing Base, at
the lower of (A) cost determined on a FIFO basis and (B) the
Fair Market Value of such product" from the third sentence
thereof.
SECTION 1.6. Eligible Receivables. Section 1.01 of the
Credit Agreement is hereby further amended by inserting at the
end of the definition of "Eligible Receivables" the following
additional sentence:
For the purposes of this definition, at any time when
the combined Borrowing Base of the Borrowers does not
exceed the Credit Limit by at least $50,000,000,
Eligible Receivables owing to the Borrowers by any
Account Debtor shall be determined on a consolidated
basis for the Borrowers net of any and all offsets,
counterclaims or contras arising in connection with
any such Account owing by such Account Debtor such
that the Eligible Receivables owing to one Borrower by
an Account Debtor shall be reduced by the amount by
which any such offsets, counterclaims or contras
relating to Accounts owing to the other Borrower by
such Account Debtor exceed that portion of such
Accounts which would otherwise be Eligible
Receivables.
SECTION 1.7. Ferndale Refinery. Section 1.01 is hereby
further
amended by inserting the following new definition in the
appropriate alphabetical order:
"Ferndale Refinery" means the land and improvements
known as the Ferndale Refinery, located in Ferndale,
Washington, together with the terminals, tanks, pipelines
and related facilities used or intended for use in
connection therewith.
SECTION 1.8. FMCP L/C Limit. Section 1.01 of the Credit
Agreement is hereby further amended by deleting the definition
of "FMCP L/C Limit" in its entirety and replacing it with the
following:
"FMCP L/C Limit" means an initial amount equal to
$44,112,705 as reduced by $2,533,383.33 on the
fifteenth day of each April and October, commencing
April 15, 1993.
SECTION 1.9. FMCP L/C Maturity Date. Section 1.01 of the
Credit
Agreement is hereby further amended by deleting the definition
of "FMCP L/C Maturity Date", in its entirety and replacing it
with the following:
"FMCP L/C Maturity Date" means December 31, 1997.
SECTION 1.10. Free Cash. Section 1.01 of the Credit
Agreement is
hereby amended by deleting the definition of "Free Cash" in its
entirety and replacing it with the following definition:
"Free Cash" means, as to the Company, the cumulative
amount, if any, determined as of the last Business Day of
the Fiscal Quarter most recently ended (commencing with
March 31, 1993 as the first such date of determination),
for the period commencing with the Fiscal Quarter ending
March 31, 1993 through and including the date of
determination, equal to (a) the sum of (i) $150,000,000
plus (ii) 100% of Cash Flow, calculated cumulatively for
such period plus (iii) the net cash proceeds received by
the Borrowers on or after September 30, 1993 with respect
to the issuance by Tosco of its Stock or instruments
evidencing Indebtedness for borrowed money (other than in
connection with Indebtedness arising pursuant to this
Agreement or the refinancing of Indebtedness existing as of
December 10, 1993) during such period to the extent such
proceeds have not been used to reduce the aggregate amount
of Non-Discretionary Capital Expenditures made by the
Borrowers from and including the Fiscal Quarter ending
September 30, 1993 pursuant to clause (b) of the definition
of Non-Discretionary Capital Expenditures; provided that
net cash proceeds received by the Borrowers from the
issuance of instruments evidencing Indebtedness for
borrowed money may only be included in Free Cash if the
maturity of the Indebtedness evidenced thereby (including
any and all interim amortization payments) occurs after
April 8, 1997, minus (b) the sum of, without duplication,
(i) all dividends paid or declared by Tosco pursuant to
Sections 7.03 and 7.04 during such period plus (ii) Debt
Service, calculated cumulatively for such period, plus
(iii) the aggregate amount of prepayments of Indebtedness
of the Company in advance of the scheduled maturity date
thereof during such period, plus (iv) the amount of any
Free Cash utilized by the Borrowers or any Restricted
Subsidiary at any time during such period.
SECTION 1.11. Adjusted Permitted Debt Amount. Section
1.01
is
hereby further amended by inserting the following new definition
in the appropriate alphabetical order:
"Adjusted Permitted Debt Amount" means an aggregate
Dollar amount determined by multiplying (a) the aggregate
net cash proceeds received by Tosco on or after September
30, 1993 from the issuance by Tosco of its Stock (excluding
debt instruments convertible into stock and all redeemable
stock) by (b)that percentage set forth below opposite the
Leverage Ratio as in effect at the end of the fiscal
quarter immediately preceding the quarter in which
Indebtedness in excess of $50,000,000 is to be incurred as
permitted by SECTION 7.01(a)(viii).
Leverage Ratio Percentage of Increase
less than 1.2:1 100%
less than or equal to 1.5:1 and 85%
greater than or equal to 1.2:1
greater than 1.5:1 50%
SECTION 1.12. Funded Debt. Section 1.01 is hereby further
amended
by inserting the following new definition in the appropriate
alphabetical order:
"Funded Debt" of any Person means, at any time, the
amount of all Indebtedness for borrowed money (other than
short-term trade credit) or for the deferred purchase price
of Capital Assets plus Capitalized Lease Obligations,
calculated in accordance with GAAP.
SECTION 1.13. Leverage Ratio. Section 1.01 is hereby
further
amended by inserting the following new definition in the
appropriate alphabetical order:
"Leverage Ratio" means the ratio of Funded Debt of the
Company to Tangible Net Worth of the Company,
determined on a LIFO basis.
SECTION 1.14. Non-Discretionary Capital Expenditures.
Section
1.01 of the Credit Agreement is hereby further amended by
deleting the definition of "Non-Discretionary Capital
Expenditures" in its entirety and replacing it with the
following:
"Non-Discretionary Capital Expenditures" means for any
fiscal year of the Company, (a) all Capital Expenditures of
the Company during such fiscal period for (i) deferred
turnaround costs with respect to the Avon Refinery, the
Bayway Refinery, the Ferndale Refinery and any other
refinery owned by Tosco or Bayway at the relevant time of
reference thereto, so classified on a basis consistent with
current practice and (ii) all other Capital Expenditures
necessarily incurred by the Company in order to maintain
its property, plants and equipment (including, without
limitation, the Avon Refinery, the Bayway Refinery, the
Ferndale Refinery and such other refinery owned by Tosco or
Bayway at the relevant time of reference thereto) in
compliance with applicable Environmental Laws and other
laws and regulations, minus (b) an amount equal to the sum
of (i) the net cash proceeds received by the Company with
respect to the issuance of Stock or instruments evidencing
Indebtedness for borrowed money (other than in connection
with Indebtedness arising pursuant to this Agreement or
refinancings of Indebtedness existing as of the Closing
Date) during such fiscal period; plus (ii) the lesser of
(x) the net cash proceeds received by the Company with
respect to the issuance of Stock or instruments evidencing
Indebtedness for borrowed money (other than in connection
with Indebtedness arising pursuant to this Agreement or
refinancings of Indebtedness existing as of December 10,
1993) during prior fiscal periods and (y) an amount equal
to Free Cash as at the end of such fiscal period; provided
that in no event shall the amount subtracted in accordance
with this clause (b) reduce Non-Discretionary Capital
Expenditures to an amount less than zero ($0).
SECTION 1.15. Restricted Investment. Section 1.01 of the
Credit
Agreement is hereby further amended by amending the definition
of "Restricted Investment" by deleting clause (ix) thereof and
inserting the following:
(ix) investments in respect of intercompany loans
made by Tosco to Bayway in connection with Bayway
Advances hereunder.
SECTION 1.16. Tosco Revolving Credit Debt. Section 1.01
of
the
Credit Agreement is hereby further amended by deleting the
definition of "Tosco Revolving Credit Debt" and replacing it
with the following:
"Tosco Revolving Credit Debt" means at any time, (a)
the aggregate principal amount of all Borrowings at such
time made pursuant to Article II and issued for the account
of or requested by Tosco, including, without limitation,
(i) all such Borrowings in cash thereunder, (ii) the
aggregate principal amount of all such Letter of Credit
Reimbursement Obligations outstanding thereunder and (iii)
the aggregate principal amount of all such Acceptance
Obligations outstanding thereunder, but not including (b)
the aggregate principal amount of Bayway Advances
outstanding at such time.
SECTION 1.17. Capitalization. Section 4.05(c) of the
Credit
Agreement is hereby deleted in its entirety and replaced with
the following:
(c) The authorized capitalization of Tosco, as of the
date hereof, consists of 50,000,000 shares of common stock
and 12,000,000 shares of preferred stock and as of December
10, 1993 34,811,158 shares of common stock are issued and
outstanding (including 2,548,999 treasury shares),
6,391,189 shares of common stock are reserved for issuance
and 2,300,000 shares of preferred stock are issued and
outstanding.
SECTION 1.18. Reports. Section 5.04(c) of the Credit
Agreement
is hereby deleted in its entirety and replaced with the
following:
(c) As soon as available, and in any event within
thirty (30) days after the end of each calendar month
commencing with the calendar month preceding the month
during which the Closing Date occurs, detailed consolidated
and consolidating monthly statements of income or loss of
the Company and consolidated and consolidating balance
sheets of the Company (including a statement of the amount
of the Company's LIFO reserve) and consolidated and
consolidating statements of cash flow of the Company as at
the end of such month and a management-prepared statement
showing the contribution to Net Income (Loss) for the
fiscal period covered by such monthly statement made by the
Avon Refinery and the Ferndale Refinery, all of which shall
be certified as true, complete and correct (to the best of
such officer's knowledge) by the Chief Financial Officer of
Tosco.
SECTION 1.19. Reports. Section 5.04(d)(i) of the Credit
Agreement is hereby deleted in its entirety and replaced with
the following:
(i) the consolidated and consolidating balance sheets
of the Company (including a statement of the amount of the
Company's LIFO reserve) as at the end of such quarter and
the consolidated and consolidating statements of income,
retained earnings and cash flows of the Company for such
quarter and, after the end of each of the first three
Fiscal Quarters of each Fiscal Year of the Company, for the
portion of the current Fiscal Year then ended (all in
reasonable detail and including a management statement
showing the contribution to Net Income (Loss) made by the
Avon Refinery and the Ferndale Refinery for such fiscal
periods), accompanied by a certificate from the Chief
Financial Officer of Tosco stating that such statements
have been properly prepared in accordance with the books
and records of the Company and fairly present the financial
condition and operations of the Company subject only to
normal year-end audit adjustments;
SECTION 1.20. Reports. Section 5.04 of the Credit
Agreement is
hereby further amended by inserting the following new subsection
(q) after existing subsection (p):
(q) Promptly and in any event within fifteen (15)
days after knowledge thereof, the Borrowers shall give the
Agent and BofA as Co-Agent notice if there is a material
likelihood that the aggregate amount by which any offsets,
contras or counterclaims, calculated on a consolidated
basis, with respect to Eligible Receivables will exceed by
more than $50,000,000 the gross amount of the Accounts
comprising the Eligible Receivables to which such offsets,
contras or counterclaims relate.
SECTION 1.21. Right to Inspect Premises and Records.
Section 5.05
of the Credit Agreement is hereby amended by inserting the
following new sentence at the end thereof:
In addition and without limiting the generality of the
foregoing, each Borrower agrees that the Agent and
BofA as Co-Agent may conduct, at the Borrowers' cost
and expense, such additional special audits of the
consolidated netting practices used by the Company in
connection with the calculation and reporting of
Eligible Receivables as the Agent and BofA as Co-Agent
may deem necessary and desirable.
SECTION 1.22. Material Change in Business. Section 5.11
of
the
Credit Agreement is hereby deleted in its entirety and replaced
with the following:
5.11. Material Change in Business. Tosco's primary
business shall continue to be petroleum refining,
distribution, wholesale and retail marketing and related
businesses (other than oil and gas exploration, natural gas
marketing and petroleum trading which does not directly
support the primary refining, distribution and marketing
business). Tosco shall notify the Agent promptly (and in
any event by no later than the next Business Day) upon (i)
any termination of the ARCO Exchange Agreement or any
failure of the ARCO Exchange Agreement to be in full force
and effect and (ii) any termination of the Exxon Supply
Agreement or any failure of the Exxon Supply Agreement to
be in full force and effect. Bayway's primary business
shall be petroleum refining, distribution, wholesale and
retail marketing and related businesses (other than oil and
gas exploration, natural gas marketing and petroleum
trading which does not directly support the primary
refining, distribution and marketing business).
SECTION 1.23. Appraisals of Seminole Property. Section
5.17
of
the Credit Agreement is hereby deleted in its entirety.
SECTION 1.24. Ratio of Funded Debt to Tangible Net Worth.
Section 6.01(c) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(c) The Leverage Ratio, during any period set forth
in the table below, shall not at any time exceed the ratio
set forth opposite such period in the table below:
Period Ratio
Closing Date through 12/30/93 1.9:1.0
12/31/93 through 12/30/94 1.5:1.0
12/31/94 through 12/30/95 1.4:1.0
12/31/95 and thereafter 1.2:1.0.
SECTION 1.25. Limitations on Indebtedness. Section
7.01(a)(iv)
of the Credit Agreement is hereby amended by deleting the phrase
"in respect of Seminole Advances" from the second and third
lines thereof.
SECTION 1.26. Limitations on Indebtedness. Section
7.01(a)(viii)
of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
(viii) Indebtedness in an aggregate principal amount
not to exceed $50,000,000 plus the Adjusted Permitted Debt
Amount; provided that any such Indebtedness in excess of
$50,000,000 shall have a maturity date no earlier than 120
days after the Maturity Date hereof; and
SECTION 1.27. Limitations on Liens, Etc. Section 7.02 of
the
Credit Agreement is hereby amended by (a) deleting the word "or"
from the end of subsection (l) thereof, (b) deleting the period
at the end of subsection (m) thereof and replacing it with the
phrase"; or" and (c) inserting the following new subsection (n)
after the existing subsection (m):
(n) on fixed assets acquired after September 30, 1993
to secure Indebtedness which at the time does not exceed
the lesser of the purchase price or the net book value of
such assets.
SECTION 1.28. Limitations on Restricted Payments, Etc.
Section
7.03 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
7.03. Limitation on Restricted Payments, Restricted
Prepayments, Restricted Investments and Discretionary
Capital Expenditures. Except as permitted in Sections
7.01(a)(v) and 7.04, the Borrowers shall not, and shall not
permit any Restricted Subsidiary to, directly or
indirectly, make any Restricted Investment, Restricted
Payment, Restricted Prepayment or Discretionary Capital
Expenditure, or enter into any agreement to make any
Restricted Investment, Restricted Payment, Restricted
Prepayment or Discretionary Capital Expenditure; provided,
however, that so long as no Default or Event of Default
shall have occurred and be continuing or would result from
such Restricted Investment, Restricted Payment, Restricted
Prepayment, or Discretionary Capital Expenditure, (A) Tosco
may pay or provide funds for Seminole to pay obligations
owing to Cargill Fertilizer, Inc. in the amount of
$14,500,000 and the FMCP L/C Reimbursement Obligations or
the underlying debt secured by such letters of credit and
(B) the Borrowers and/or any Restricted Subsidiary may make
Restricted Investments, Restricted Payments, Restricted
Prepayments and/or Discretionary Capital Expenditures
solely to the extent that (a) with respect to any
Restricted Investment, such Restricted Investment is listed
on Schedule 7.03, (b) such Restricted Investment,
Restricted Payment, Restricted Prepayment, or Discretionary
Capital Expenditure would otherwise be permitted under this
Agreement but for the applicability of this Section 7.03,
(c) with respect to any Discretionary Capital Expenditure,
such Discretionary Capital Expenditure is listed on
Schedule 7.03, or (d) such Restricted Investment,
Restricted Payment, Restricted Prepayment or Discretionary
Capital Expenditure is made out of Free Cash, as set forth
on the most recently certified quarterly computation of
Free Cash delivered to the Banks pursuant to Section
5.04(d)(ii) hereof, as reduced for all other Restricted
Investments, Restricted Payments, Restricted Prepayments,
and Discretionary Capital Expenditures made or to be made
since the delivery of such quarterly computation provided,
however, that if the Leverage Ratio is greater than 1.2 to
1.0 (as set forth in the most recent Compliance Certificate
delivered to the Banks pursuant to Section 5.04(d)(iii)
hereof after giving effect to all such Restricted
Investments, Restricted Payments, Restricted Prepayments
and Discretionary Capital Expenditures made or to be made
since the delivery of such computation), (i) no Restricted
Prepayment of Subordinated Debt incurred after the Closing
Date shall be made and (ii) no Restricted Payment shall be
made except as otherwise permitted by Section 7.04.
Notwithstanding any provision contained herein to the
contrary, (i) Tosco shall not, directly or indirectly, make
any Restricted Investment in, or enter into any agreement
to make any Restricted Investment in Continental-Tosco
Limited Partnership in excess of $50,000,000 in aggregate
amount, and (ii) Tosco shall not make any Restricted
Investment in an amount in excess of $5,000,000 in the
stock or obligations of any Person or any Discretionary
Capital Expenditure in excess of $5,000,000 other than
Restricted Investments in the stock or obligations of a
Person whose primary business is petroleum refining,
distribution, wholesale and retail marketing and related
businesses (other than oil and gas exploration, natural gas
marketing and petroleum trading which does not directly
support the primary refining, distribution and marketing
business) and Discretionary Capital Expenditures for assets
to be used in connection with petroleum refining,
distribution, wholesale and retail marketing and related
businesses (other than oil and gas exploration, natural gas
marketing and petroleum trading which does not directly
support the primary refining, distribution and marketing
business), provided that the aggregate amount (calculated
as provided below) of all Restricted Investments in Persons
whose primary business is petroleum refining, distribution,
wholesale and retail marketing and related businesses and
Discretionary Capital Expenditures for assets used for
petroleum refining, distribution, marketing and related
businesses shall not exceed $225,000,000. For the purposes
of clause (ii) of the preceding sentence, the amount of
Restricted Investments and Discretionary Capital
Expenditures shall be equal to the purchase price (in the
case of the acquisition of any business, exclusive of the
cost of any acquired working capital to the extent not
reflected in the purchase price) plus the amount of any
liabilities assumed in connection therewith
SECTION 1.29. Limitations on Sale. Section 7.05(a)(iv) of
the
Credit Agreement is hereby deleted in it entirety and replaced
with the following:
(iv) Tosco may sell or otherwise dispose of the FMCP
Interest and upon the request of Tosco in conjunction with
such sale, the Agent shall release its Lien thereon without
further requirement of consent from the Banks.
SECTION 1.30. Schedules 1.01(a) and (b). The Credit
Agreement is
hereby amended by deleting Schedule 1.01(a) and (b) thereto and
replacing them with Schedule 1.01(a) and (b) hereto.
SECTION 1.31. Schedule 4.10. The Credit Agreement is
hereby
amended by deleting Schedule 4.10 thereto and replacing it with
Schedule 4.10 hereto.
SECTION 1.32. Schedule 4.16. The Credit Agreement is
hereby
amended by deleting Schedule 4.16 thereto and replacing it with
Schedule 4.16 hereto.
SECTION 1.33. Schedule 4.21. The Credit Agreement is
hereby
amended by deleting Schedule 4.21 thereto and replacing it with
Schedule 4.16 hereto.
SECTION 1.34. Exhibit L. The Credit Agreement is hereby
amended
by deleting Exhibit L thereto and replacing it with Exhibit L
attached hereto.
2. Scope of Amendment. Except as specifically amended by
this Amendment, the Credit Agreement shall remain in full force
and effect.
3. Representations and Warranties. The Borrowers hereby
jointly and severally represent and warrant to the Banks, the
Agent and the FMCP L/C Bank as follows:
(a) Representations and Warranties in Credit Agreement.
The representations and warranties of the Borrowers and Seminole
contained in the Credit Agreement (i) were true and correct in
all material respects when made, and (ii) except to the extent
such representations and warranties by their terms are made
solely as of a prior date, continue to be true and correct in
all material respects on the date hereof.
(b) Authority, etc. The execution and delivery by the
Borrowers and Seminole of this Amendment and the performance by
the Borrowers and Seminole of all of their agreements and
obligations under this Amendment are within the corporate
authority of each of the Borrowers and Seminole, have been duly
authorized by all necessary corporate action on the part of each
of the Borrowers and Seminole, and do not and will not (i)
contravene any provision of any Borrower's or Seminole's
charter, other incorporation papers, by-laws or any stock
provision, or any amendment thereof, (ii) conflict with, or
result in a breach of any material term, condition or provision
of, or constitute a default under or result in the creation of
any mortgage, lien, pledge, charge, security interest or other
encumbrance upon any of the property of any Borrower or Seminole
under agreement, deed of trust, indenture, mortgage or other
instrument to which such Borrower or Seminole is a party or by
which any of such Borrower's or Seminole's properties are bound,
(iii) violate or contravene any provision of any law,
regulation, order, ruling or interpretation thereunder or any
decree, order or judgment of any court or governmental or
regulatory authority, bureau, agency or official, (iv) require
any waiver, consent or approval by any creditor of any Borrower
or Seminole which has not been obtained and (v) require any
approval, consent, order, authorization or license by, or giving
notice to, or taking any other action with respect to, any
governmental or regulatory authority or agency under any
provision of any law, except those actions which have been taken
or will be taken prior to the date of execution of this
Amendment.
(c) Enforceability of Obligations. This Amendment and the
Credit Agreement, as amended hereby, constitute the legal, valid
and binding obligations of the Borrowers and Seminole
enforceable against the Borrowers and Seminole in accordance
with their respective terms, provided that (i) enforcement may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applications affecting the
rights and remedies of creditors, and (ii) the availability of
the remedies of specific performance and injunctive relief may
be subject to the discretion of the court before which any
proceedings for such remedies may be brought.
4. Conditions to Effectiveness. The effectiveness of this
Amendment No. 2 shall be conditioned upon receipt by the Agent
of the following, in form and substance satisfactory to the
Banks:
(a) this Amendment No. 2, executed by the Borrowers, the
Banks, the Agent, the Co-Agents and the FMCP L/C Bank;
(b) copies, certified by the Secretary of each of the
Borrowers and Seminole to be true and complete on the date of
execution of this Amendment, of the records of all actions taken
by such Borrower and Seminole as may be required according to
the terms of such Borrower's or Seminole's charter, other
incorporation documents and by-laws to authorize (i) the
execution and delivery of this Amendment by such Borrower and
Seminole and (ii) the performance by such Borrower and Seminole
of all of its agreements and obligations under this Amendment;
and
(c) a fee in the amount of $5,000 for each Bank, payable
to the Agent for the account of each of the Banks.
5. Effective Date. Upon satisfaction of the conditions
set forth in Section 4 hereof, the provisions of this Amendment
No. 2
shall be deemed effective as of December 10, 1993.
6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts, but all such
counterparts shall together constitute but one instrument. In
making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart signed by each
party hereto by and against which enforcement hereof is sought.
7. Governing Law. This Amendment shall be construed
according to and governed by the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as an agreement under seal as of
the date set forth at the beginning of this Amendment.
TOSCO CORPORATION
By:
Title
SEMINOLE FERTILIZER CORPORATION
By:
Title
BAYWAY REFINING COMPANY
By:
Title
THE FIRST NATIONAL BANK OF
BOSTON, individually and as
Agent
By:
Title
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Co-Agent
By:
Title
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually
By:
Title
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
individually and as Co-Agent
By:
Title
ARAB BANKING CORPORATION
By:
Title
NATIONAL CITY BANK
By:
Title
THE FUJI BANK, LIMITED
By:
Title
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By:
Title
BANK HAPOALIM, B.M.
By:
Title
By:
Title
UNITED JERSEY BANK
By:
Title
THE YASUDA TRUST AND BANKING
CO., LTD.
By: Kiyoshi Terao
Title: Joint General Manager
INTERNATIONALE NEDERLANDEN
BANK, N.V., as FMCP L/C Bank
By:
Title
Exhibit 10(e)
SCHEDULE
Peter A. Sutton Vice President, Tosco Corporation
AMENDMENT, effective as of the first day of January, 1993
to that certain Amended and Restated Agreement dated as of the
15th day of November, 1989, by and between Tosco Corporation, a
Nevada corporation ("Tosco"), and Peter A. Sutton, (the
"Executive").
For and in good consideration of the mutual covenants and
agreements herein contained, and other good and valuable
consideration the adequacy and receipt of which are hereby
acknowledged, Tosco and Executive agree that the Agreement be
and hereby is amended as follows:
Section 3(a) is hereby deleted and replaced with the
following:
"Following the termination of the Executive's
employment as provided in Section 1(a) hereof, Tosco
shall pay to the Executive a lump sum severance
payment (the "Lump Sum Severance Payment"), no later
than five days after such termination, in an amount
equal to twenty four (24) months of his base annual
salary at the rate in effect immediately prior to such
termination (exclusive of any bonuses or incentive
pay)."
Tosco Corporation Executive
By:_____________________ ________________________
AMENDMENT, effective as of the first day of February, 1993
to that certain Amended and Restated Agreement dated as of the
15th day of November, 1989, by and between Tosco Corporation, a
Nevada corporation ("Tosco"), and James M. Cleary, (the
"Executive").
For and in good consideration of the mutual covenants and
agreements herein contained, and other good and valuable
consideration the adequacy and receipt of which are hereby
acknowledged, Tosco and Executive agree that the Agreement be
and hereby is amended as follows:
Section 3(a) is hereby deleted and replaced with the
following:
"Following the termination of the Executive's
employment as provided in Section 1(a) hereof, Tosco
shall pay to the Executive a lump sum severance
payment (the "Lump Sum Severance Payment"), no later
than five days after such termination, in an amount
equal to twenty four (24) months of his base annual
salary at the rate in effect immediately prior to such
termination (exclusive of any bonuses or incentive
pay)."
Tosco Corporation Executive
By:_____________________ ________________________
EXHIBIT 10(g)
THIS AGREEMENT made as of this 1st day of January 1, 1993, by
and between Tosco Corporation, a Nevada corporation ("Tosco"),
and Thomas D. O'Malley (the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive is a key employee of Tosco; and
WHEREAS, Tosco deems it important and appropriate to assure
to itself the continued availability of certain services and
assistance of Executive; and
WHEREAS, Executive is willing to perform certain services
for, and to make certain information available to, Tosco as
Tosco may request, provided Executive is appropriately
compensated, in the event his employment by Tosco terminates.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained, Tosco and the
Executive agree as follows:
1. If during the term of this Agreement:
(a) Executive's employment with Tosco is terminated,
the Executive shall be entitled to the benefits provided in
Section 3 (a) hereof, unless such termination is (i) due to
Executive's death or disability (as hereinafter defined), (ii)
by Tosco for Cause (as hereinafter defined) or (iii) by the
Executive other than for Good Reason (as hereinafter defined);
(b) a Change of Control takes place, the provisions
of paragraph 3(b) shall control in lieu of the provisions of
Section 1(a) above.
2. When used in this Agreement:
(a) "Cause" shall mean the material and intentional
failure by the Executive to substantially perform his duties as
an employee of Tosco (other than by reason of Disability or for
Good Reason) after a written demand for substantial performance
is delivered to the Executive by the Board of Directors, which
demand specifically identifies such failure; actual (as
distinguished from statutory) fraud; intentional
misappropriation of property of Tosco to the Executive's own
use; embezzlement from Tosco; or substantial damage to property
of Tosco which property is material to Tosco's operations and
which damage results from an action by the Executive which
intentionally causes such damage. The burden of proving Cause
shall be on Tosco. It is specifically agreed that Cause shall
not include any act of commission or omission by the Executive
in the exercise of the Executive's business judgment as an
employee of Tosco or as a member of the Board of Directors of
Tosco.
(b) "Disability" shall mean Executive's incapacity
due to physical or mental illness resulting in his absence from
full-time performance of his functions for a period in excess of
six (6) consecutive months.
(c) "Good Reason" shall mean, without Executive's
express written consent, any of the following:
(i) the assignment of Executive of duties
inconsistent with and of a lesser nature than his
present position or a significant reduction in the
nature of Executive's responsibility;
(ii) a reduction in the fixed elements, or
change in the method of calculation of the variable
elements that would reduce the amount receivable, of
the Executive's annual compensation;
(iii) the relocation of Executive's office to a
location more than 50 miles from the area where such
offices are presently located; or
(iv) Tosco shall have given notice pursuant to
Section 6 hereof that it does not wish to extend the
term of this Agreement.
In the event Executive has attained the age of 55 years and
terminates his employment with Tosco, such voluntary termination
of employment by Employee shall be deemed, for purposes of this
Agreement, to be termination for "Good Reason", provided
Executive agrees in writing to provide to Tosco at no further
expense to Tosco, as Tosco may reasonably request from
time-to-time, information with respect to Executive's duties at
Tosco.
3. (a) Following the termination of the Executive's
employment as provided in Section 1(a) hereof, Tosco shall pay
to the Executive a lump sum severance payment (the "Lump Sum
Severance Payment"), no later than five (5) days after such
termination, in an amount equal to thirty (30) months multiplied
by his monthly base salary then in effect, exclusive of any
bonuses.
(b) Within ten (10) business days after the date of a
Change of Control of Tosco, Tosco or its successors as a result
of the Change of Control (collectively referred to herein as
Tosco), shall have the right, in its discretion, to elect to
have the Executive's employment continue, for an additional full
period of six (6) months, on terms and conditions no less
favorable to the Executive as were in existence on the date of
the Change of Control.
(i) If Tosco does not elect to continue such
employment of the Executive, Tosco shall pay to the
Executive the full Lump Sum Severance Payment in
accordance with Section 3(a).
(ii) If Tosco elects to continue the employment
of the Executive with Tosco on such terms and notifies
the Executive of its election, and if the Executive
refuses such offer and terminates his employment, the
Executive shall not be entitled to any Lump Sum
Severance Payment.
(iii) If Tosco elects to continue the employment
of the Executive with Tosco on such terms and notifies
the Executive of its election, and if the Executive
agrees to and does continue such employment during
such full period, the Executive and Tosco shall then
seek to reach mutual agreement as to continued
employment of the Executive by Tosco after such full
period. If such agreement is reached, the terms and
conditions thereof shall supersede this agreement and
this agreement shall be deemed terminated; if Tosco
and the Executive do not reach mutually acceptable
further employment terms within ten (10) days after
the termination of the such full employment period,
Tosco shall pay to the Executive, within five (5) days
thereafter, an amount equal to seventy-five percent
(75%) of the Lump Sum Severance Payment.
(c) In the event that the employment of the Executive
by Tosco is terminated by reason of the provisions of paragraph
1(a) hereof, or if there has been a Change of Control, all
options or shares of stock which have been granted or issued to
the Executive by Tosco which are not vested or are subject to
restrictions at the time of termination shall vest immediately
upon such termination in the event of a termination pursuant to
paragraph 1(a) hereof, or upon the date of Change of Control in
the event of a Change in Control, and such restrictions shall
lapse. The amounts to be received by the Executive pursuant to
clauses (a) or (b) of this Section 3 and options and shares
which become vested pursuant to the provisions of this Section
3(c) are collectively referred to herein as the "Total Severance
Payments."
(d) If the Executive shall resort to any action or
proceeding to recover any amount from Tosco which Tosco has
failed to pay as provided in this Section 3 and the Executive
shall be awarded any amounts in any such action or proceeding,
Tosco shall promptly pay and reimburse to the Executive all or
the costs and expenses (including attorneys' fees) incurred by
the Executive in and with respect to such action or proceeding.
(e) For the purposes of this Agreement, "Change of
Control" shall be deemed to have occurred if:
(i) any "person" or "group" (as defined in
Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), is or
becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly,
of more than fifty percent (50%) of Common Stock of
Tosco. Common Stock of Tosco shall be computed on a
fully diluted basis and shall include the outstanding
common stock par value of $.75 per share of Tosco and
all shares of common stock of Tosco underlying
outstanding convertible securities and warrants of
Tosco; or
(ii) the stockholders of Tosco approve (A) a
merger or consolidation of Tosco with any other
corporation except a merger or consolidation (an
"Acquisition Transaction") which would result in the
voting securities of Tosco outstanding immediately
prior thereto continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity) fifty
percent (50%) or more of the combined voting power of
the voting securities of Tosco or such surviving
entity outstanding immediately after such merger or
consolidation, or (B) a plan of complete liquidation
of Tosco or (C) the sale or disposition by Tosco,
directly or indirectly, of the Avon Refinery.
(iii) there is a change in the composition of
the Board of Directors of Tosco by other than the
individuals who constitute the Board of Directors on
the date hereof (the "Incumbent Board") and
individuals elected or nominated by a vote of the
Board constituting at least one person more than
one-half of the Incumbent Board (which individuals
shall then be considered the Incumbent Board) so that
the Incumbent Board shall not constitute a majority of
the Board of Directors of Tosco after such
transaction.
(iv) notwithstanding anything to the contrary
contained in this Section 3(e), the acquisition of any
Common Stock or any other security of Tosco or the
designation of the Board of Directors of Tosco by
Argus Energy Corporation or any of its associated or
affiliated groups shall not constitute a Change of
Control.
4. Notwithstanding anything to the contrary contained in
Section 3 hereof, in the event that any payment or benefit
received or to be received by the Executive in connection with
the termination of his employment whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement
with Tosco (collectively with his Total Severance Payments
herein called "Total Payments"), would not be deductible, in
whole or part, as a result of Section 280G of the Internal
Revenue Code of 1986, as hereafter amended (the "Code"), by
Tosco, the Total Severance Payments shall be reduced until no
portion of the Total Payments is not deductible, or the Total
Severance Payments are reduced to zero, with any payments deemed
made pursuant to Section 3(c) hereof to be reduced prior to
payments to be made pursuant to Section 3(a) or 3(b) hereof.
This provision may be waived by the Board of Directors of Tosco
in the exercise of its discretion. The determination as to
whether any portion of the Total Payments would not be
deductible by Tosco as a result of Section 280G of the Code
shall be determined by the Committee on Resources and Personnel
of the Board of Directors (or any committee thereof performing
similar functions) after consultation with Tosco's independent
auditors and counsel, and any such determination made in good
faith shall be binding upon the employee and Tosco.
5. The Executive shall not be required to mitigate the
amount of any payment provided for in Section 3 by seeking other
employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 3 be reduced by any compensation
earned by the Executive as the result of the employment by
another employer, by retirement benefits, by offset against any
amount claimed to be owed by Executive to Tosco or otherwise.
6. This Agreement shall commence on the date hereof and
shall continue in effect for one (1) year from the date hereof;
provided, however, that commencing on the anniversary of this
Agreement and each anniversary thereafter, this Agreement shall
automatically be extended for one additional year, unless not
later than six months prior to any anniversary, Tosco shall have
give notice to the Executive that it does not wish to extend
this Agreement.
7. The terms of this Agreement shall supersede and replace
any employment or severance agreement which the Executive may
have with Tosco or any subsidiary and upon execution of this
Agreement any such other employment agreement shall be
terminated and of no further force or effect. Nothing in this
Agreement shall be construed to be a commitment or guarantee of
future employment with Tosco.
8. (i) Tosco will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of Tosco
to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Tosco would be required
to perform it if no such succession had taken place. Failure of
Tosco to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from
Tosco in the same amount and on the same terms to which the
Executive would be entitled hereunder if the Executive
terminates his employment for Good Reason.
(ii) This Agreement shall inure to the benefit of and
be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any
amount would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee or other designee
or, if there is no such designee, to his estate.
9. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when
personally delivered or when mailed by United States certified
or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to
such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt:
To the Corporation: Tosco Corporation
72 Cummings Point Road
Stamford, CT 06902
To the Executive: Thomas D. O'Malley
Horse Island
Head Point
Greenwich, CT 06830
10. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such
officer as may be specifically designated by the Board. No
waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of
California without regard to its conflicts of law principles.
All references to sections of the code shall be deemed also to
refer to any successor provisions to such sections. Any
payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local
law. The obligations of Tosco under Section 3 shall survive the
expiration of the term of this Agreement.
11. Subject to the last sentence of this Section 11, after
the date hereof the Executive shall not become a member of the
board of directors of or perform a similar function with any
other entity without the prior approval of the Tosco Committee
on Resources and Personnel, which approval shall not be
unreasonably withheld. In the event that such approval is
given, the Executive confirms that the performance of his duties
and obligations as an employee of Tosco shall not be interfered
with by his obligations to such other board of directors or
entity. In no case shall the Executive assume any position with
any entity which shall violate the Conflicts of Interest policy
of Tosco (a copy of which has been received) or cause the
Executive to divulge any confidential information relating to
Tosco or any affiliated entity. Approval of the Committee on
Resources and Personnel shall not be required for the Executive
to become a member of the board of directors of, or perform a
similar function with, family or charitable entities.
12. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in
full force and effect.
13. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
instrument.
14. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein
and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties,
whether oral or written, by any officers, employee or
representative of any party hereof; and any prior agreement of
the parties hereto in respect of the subject matter contained
herein is hereby terminated and cancelled.
15. Any controversy or claim arising out of or relating to
this Agreement, the interpretation thereof, or the breach
therefor, shall be submitted to arbitration and such arbitration
shall comply with and be governed by the provisions of the
California Arbitration Act, Sections 1280 through 1294.2 of the
California Code of Civil Procedure.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the day and year first above
written.
TOSCO CORPORATION
By:_______________________ Date:___________________
Date:___________________
Thomas D. O'Malley
Executive
SCHEDULE A
(to exhibit 10(g))
Jefferson F. Allen Executive Vice President,
Tosco Corporation
Wilkes McClave III Vice President,
Tosco Corporation
Dwight L. Wiggins Vice President,
Tosco Corporation
(copy of severance agreement
attached)
Robert J. Lavinia Vice President,
Tosco Corporation
(copy of severance agreement
attached)
Agreement made as of this 1st day of January, 1993, by and
between Bayway Refining Company, a Delaware corporation ("BRC"),
and Mr. Dwight L. Wiggins (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is now or is expected to become a
key
employee of BRC; and
WHEREAS, BRC deems it important and appropriate to assure
to
itself the availability of the service of Executive and to
induce
the Executive to render services to BRC or as BRC may direct;
and
WHEREAS, the Executive deems it in his best interests to be
appropriately compensated if his employment shall be terminated
under certain circumstances and to set forth certain other
matters:
NOW, THEREFORE, in consideration of the mutual covenants
and
agreements herein contained, BRC and the Executive agree as
follows:
1. If during the term of this Agreement:
(a) Executive's employment with BRC is terminated,
the
Executive shall be entitled to the benefits provided in section
3(a) hereof, unless such termination is (i) due to Executive's
death or Disability (as hereinafter defined), (ii) by BRC for
Cause (as hereinafter defined) or (iii) by the Executive other
than for Good Reason (as hereinafter defined).
2. When used in this Agreement:
(a) "Cause" shall mean the material and intentional
failure by the Executive to substantially perform his duties as
an
employee of BRC (other than by reason of Disability or for Good
Reason) after a written demand for substantial performance is
delivered to the Executive by the Board of Directors, which
demand
specifically identifies such failure; fraud; intentional
misappropriation of property of BRC to the Executive's own use;
embezzlement from BRC; or substantial damage to property of BRC
which property is material to BRC's operations and which damage
results from an action by the Executive which intentionally
causes
such damage. The burden of proving Cause shall be on BRC. It
is
specifically agreed that cause shall not include any act of
commission or omission by the Executive in the exercise of the
Executive's business judgment in good faith on behalf of BRC as
an
employee of BRC.
(b) "Disability" shall mean Executive's incapacity
due
to physical or mental illness resulting in his absence from
full-time performance of his functions for a period of four (4)
consecutive months.
(c) "Good Reason" shall mean, without Executive's
express written consent, any of the following:
(i) reduction by BRC in the executive's annual
base salary as in effect at any time; or
(ii) BRC shall have given notice pursuant to
Section 5 hereof that it does not wish to extend the
term of this Agreement.
3. (a) Following the termination of the Executive's
employment under section 1(a) hereof, BRC shall pay to the
Executive a lump sum severance payment (the "Lump Sum Severance
Payment"), no later than five (5) days after such termination,
in
an amount equal to thirty-six (36) months multiplied by his base
monthly salary at the rate in effect immediately prior to such
termination, exclusive of any bonuses or incentive pay,
provided,
however, that in the event Executive terminates his employment
with Exxon U.S.A., commences full-time employment with BRC, and
BRC (or an affiliate) does not acquire the Bayway Refinery, such
amount shall be thirty-six (36) months multiplied by his base
monthly salary at the rate in effect immediately prior to such
termination.
(b) In the event that the employment of the Executive
by BRC is terminated by reason of the provisions of section 1(a)
hereof, all options or shares of stock which have been granted
or
issued to the Executive as a result of his employment by BRC
which
are not vested or are subject to restrictions at the time of
termination shall vest immediately upon such termination and
such
restrictions shall lapse.
(c) If the Executive shall resort to any action or
proceeding to recover any amount of BRC which BRC has failed to
pay as provided in this Section 3 and the Executive shall be
awarded any amounts in any such action or proceeding, BRC shall
promptly pay and reimburse to the Executive all of the costs and
expenses (including attorneys' fees) incurred by the Executive
in
and with respect to such action or proceeding.
4. The Executive shall not be required to mitigate the
amount of the payment provided for in Section 3 by seeking other
employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 3 be reduced by any compensation
earned by the Executive as the result of the employment by
another
employer, by retirement benefits, by offset against any amount
claimed to be owed by Executive to BRC or otherwise.
5. BRC'S obligations under this Agreement shall commence
the
date Executive first becomes an employee of BRC, and this
Agreement, except as to matters set forth in Sections 6, and 7
below, shall continue in effect for a term of three (3) years
from
the date hereof; provided, however, that commencing on the third
anniversary of this Agreement and each second anniversary
thereafter, this Agreement shall automatically be extended for
two
additional years unless not later than six months prior to any
anniversary, Tosco shall have given notice to the Executive that
it does not wish to extend this Agreement.
6. In the course of his employment Executive will become
knowledgeable about BRC's (and its affiliates) business
strategies
and development plans; customers; pricing strategies; technical,
production, financial and commercial capabilities; and other
confidential affairs of BRC not readily available to the public.
In light thereof, Executive agrees:
(a) to keep secret and retain in the strictest
confidence all confidential matters of BRC and its affiliates
and
not to disclose them to any one outside of BRC, either during
or,
as provided below, after his employment by BRC, except in the
course of performing the duties of his employment by BRC or with
BRC's express written consent; and
(b) to deliver promptly to BRC on termination of this
Agreement, or at any other time that BRC may request, all
memoranda, notes, records, reports, manuals, drawings,
blueprints,
and other documents (and all copies thereof), whether in
written,
electronic, or other form, relating to BRC's or its affiliates'
business and all property associated therewith, which he may
then
possess or have under his control.
The provisions of this Section shall survive the
termination of Executive's employment with BRC (or any
affiliate)
for a period of two (2) years and the obligations hereunder
shall
be in addition to, and not in place of, any other
confidentiality
agreements or obligations Executive may have with or to BRC or
its
affiliates.
7. (a) During Executive's employment with BRC, Executive
(i) shall not accept employment from any person or entity other
than BRC or its affiliates without the prior written consent of
BRC, (ii) shall not invest in or provide services to any person
or
entity (other than BRC or its affiliates) that engages in the
same
or similar businesses of BRC and/or its affiliates (the
"Restricted Businesses"), and shall not engage in the Restricted
Businesses except on behalf of BRC or its affiliates, without
the
prior written consent of BRC; provided, however, that nothing
herein shall prohibit the Executive from purchasing up to five
percent of the outstanding voting shares of any corporation
involved in the Restricted Businesses that are publicly traded
on
any national securities exchange or reported on the NASD, Inc.,
and (iii) shall not participate in any investment or activity
that
would be in conflict with or substantially impair the
Executive's
ability to discharge the duties of his employment with BRC.
(b) Following the termination of Executive's
employment
with BRC, for a period of time equal to the period used in
determining any severance payment made hereunder (if any there
may
be), Executive shall not call on or otherwise solicit the
business
of past or present customers of BRC or of those entities whose
business BRC was soliciting or preparing to solicit during the
term of Executive's employment with BRC.
The obligations of this section 7 are in addition to
those contained in Section 6 above.
8. The terms of this Agreement shall supersede and replace
any employment or severance agreement which the Executive may
have
with BRC and upon execution of this Agreement any such other
employment agreement shall be terminated and of no further force
or effect. Nothing in this Agreement shall be construed to be a
commitment or guarantee of future employment with BRC.
9. This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any
amount would still be payable to him hereunder if he had
continued
to live, all such amounts, unless otherwise provided herein,
shall
be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee or other designee or, it there is
no
such designee, to his estate.
10. For the purpose of this Agreement, notices and all
other
communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when personally
delivered or when mailed by United States certified or
registered
mail, return receipt requested, postage prepaid, addressed to
the
respective addresses set forth below, or to such other address
as
either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address
shall
be effective only upon receipt:
To the Corporation: Bayway Refining Company
72 Cummings Point Road
Stamford, CT 06902
To the Executive: Mr. Dwight L. Wiggins
30 Hillcrest Way
Basking Ridge, NJ 07920
11. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such
officer
as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of
this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of New Jersey without
regard to its conflicts of law principles. Any payments
provided
for hereunder shall be paid net of any applicable withholding
required under federal, state or local law. The obligations of
BRC under Section 3 shall survive the expiration of the term of
this Agreement.
12. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability
of
any other provision of this Agreement, which shall remain in
full
force and effect.
13. This Agreement may be executed in several
counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein
and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties,
whether oral or written, by any officers, employee or
representative of any party hereof; and any prior agreement of
the
parties hereto in respect of the subject matter contained herein
is hereby terminated and canceled.
IN WITNESS WHEREOF, the parties hereto have caused
this
Agreement to be executed as of the day and year first above
written.
Bayway Refining company
By:
Dwight L. Wiggins
Executive
AGREEMENT made as of the 1st day of March, 1992, by and
between Tosco Corporation, a Nevada corporation ("Tosco"), and
Mr. Robert J. Lavinia (the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is or is anticipated to become a key
employee of Tosco; and
WHEREAS, Tosco deems it important and appropriate to assure
to itself the availability of the services of Executive and to
induce the Executive to render services to Tosco or as Tosco may
direct; and
WHEREAS, the Executive deems it in his best interests to be
appropriately compensated if his employment shall be terminated
under certain circumstances and to set forth certain other
matters;
NOW, THEREFORE, in consideration of the mutual covenants
and
agreements herein contained, Tosco and the Executive agree as
follows:
1. If during the term of this Agreement:
(a) Executive's employment with Tosco is terminated,
the Executive shall be entitled to the benefits provided in
Section 3(a) hereof, unless such termination is (i) due to
Executive's death or Disability (as hereinafter defined), (ii)
by
Tosco for Cause (as hereinafter defined) or (iii) by the
Executive
other than for Good Reason (as hereinafter defined);
(b) a Change of Control takes place, the provisions
of
Section 3(b) shall control in lieu of the provisions of Section
1(a) above.
2. When used in this Agreement:
(a) "Cause" shall mean the material and intentional
failure by the Executive to substantially perform his duties as
an
employee of Tosco (other than by reason of Disability or for
Good
Reason) after a written demand for substantial performance is
delivered to the Executive by the Board of Directors, which
demand
specifically identifies such failure; fraud; intentional
misappropriation of property of Tosco to the Executive's own
use;
embezzlement from Tosco; or substantial damage to property of
Tosco which property is material to Tosco's operations and which
damage results from an action by the Executive which
intentionally
causes such damage. The burden of proving Cause shall be on
Tosco. It is specifically agreed that Cause shall not include
any
act of commission or omission by the Executive in the exercise
of
the Executive's business judgment in good faith on behalf of
Tosco
as an employee of Tosco.
(b) "Disability" shall mean Executive's incapacity
due
to physical or mental illness resulting in his absence from
full-time performance of his functions for a period of four (4)
consecutive months.
(c) "Good Reason" shall mean, without Executive's
express written consent, any of the following:
(i) reduction by Tosco in the Executive's annual
base salary as in effect at any time; or
(ii) Tosco shall have given notice pursuant to
Section 5 hereof that it does not wish to extend the
term of this Agreement.
3. (a) Following the termination of the Executive's
employment under Section 1(a) hereof, Tosco shall pay to the
Executive a lump sum severance payment (the "Lump Sum Severance
Payment"), no later than five (5) days after such termination,
in
an amount equal to the number of months and any fraction thereof
(but not less than six months) remaining in the then current
term
(either initial or renewal) of this Agreement multiplied by his
base monthly salary at the rate in effect immediately prior to
such termination (anticipated to be $25,000/month for 1992),
exclusive of any bonuses or incentive pay.
(b) Within ten (10) business days after the date of a
Change of Control of Tosco, Tosco or its successors as a result
of
the Change of Control (collectively referred to herein as
Tosco),
shall have the right, in its discretion, to elect to have the
Executive's employment continue, for a period of six (6) months,
on terms and conditions no less favorable to the Executive as
were
in existence on the date of the Change of Control.
(i) If Tosco does not elect to continue such
employment of the Executive following a Change of
Control, Tosco shall pay to the Executive an amount
equal to twenty-four (24) months of his base monthly
salary at the rate in effect immediately prior to such
termination (exclusive of any bonuses or incentive
pay).
(ii) If Tosco elects to continue the employment
of
the Executive with Tosco on such terms and notifies
the
Executive of its election, and if the Executive
refuses
such offer and terminates his employment, the
Executive
shall not be entitled to any severance payment.
(iii) If Tosco elects to continue the employment
of the Executive with Tosco on such terms and notifies
the Executive of its election, and if the Executive
agrees to and does continue such employment during the
full six (6) month period, the Executive and Tosco
shall
then seek to reach mutual agreement as to continued
employment of the Executive by Tosco after such six
(6)
month period. If such agreement is reached, the terms
and conditions thereof shall supersede this agreement
and this agreement shall be deemed terminated; if
Tosco
and the Executive do not reach mutually acceptable
further employment terms within ten (10) days after
the
termination of such six (6) month employment period,
Tosco shall pay to the Executive, within five (5) days
thereafter, an amount equal to eighteen (18) months of
his base monthly salary at the rate in effect
immediately prior to such termination (exclusive of
any
bonuses or incentive pay).
(c) In the event that the employment of the Executive
by Tosco is terminated by reason of the provisions of Section
1(a)
hereof, or if there has been a Change of Control, all options or
shares of stock which have been granted or issued to the
Executive
by Tosco which are not vested or are subject to restrictions at
the time of termination shall vest immediately upon such
termination in the event of a termination pursuant to Section
1(a)
hereof, or upon the date of Change of Control, and such
restrictions shall lapse.
(d) If the Executive shall resort to any action or
proceeding to recover any amount from Tosco which Tosco has
failed
to pay as provided in this Section 3 and the Executive shall be
awarded any amounts in any such action or proceeding, Tosco
shall
promptly pay and reimburse to the Executive all of the costs and
expenses (including attorneys' fees) incurred by the Executive
in
and with respect to such action or proceeding.
(e) For the purposes of this Agreement, "Change of
Control" shall be deemed to have occurred if:
(i) any "person" or "group" (as defined in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act")), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of more than fifty percent
(50%) of Common Stock of Tosco. Common Stock of
Tosco shall be computed on a fully diluted basis
and shall include the outstanding common stock par
value of $.75 per share of Tosco and all shares of
common stock of Tosco underlying outstanding
convertible securities and warrants of Tosco; or
(ii) the stockholders of Tosco approve (A) a
merger or consolidation of Tosco with any other
corporation except a merger or consolidation (an
"Acquisition Transaction") which would result in
the voting securities of Tosco outstanding
immediately prior thereto continuing to represent
(either by remaining outstanding or by being
converted into voting securities of the surviving
entity) fifty percent (50%) or more of the
combined voting power of the voting securities of
Tosco or such Surviving entity outstanding
immediately after such merger or consolidation, or
(B) a plan of complete liquidation of Tosco.
(iii) there is a change in the composition
of the Board of Directors of Tosco by other than
the individuals who constitute the Board of
Directors on the date hereof (the "Incumbent
Board") and individuals elected or nominated by a
vote of the Board constituting at least one person
more than one-half of the Incumbent Board (which
individuals shall then be considered the Incumbent
Board) so that the Incumbent Board shall not
constitute a majority of the Board of Directors of
Tosco after such transaction.
(iv) notwithstanding anything to the
contrary contained in this Section 3(e), the
acquisition of any Common Stock or any other
security of Tosco or the designation of the Board
of Directors of Tosco by Argus Energy Corporation
or any of its associated or affiliated groups
shall not constitute a Change of Control.
4. The Executive shall not be required to mitigate the
amount of any payment provided for in Section 3 by seeking other
employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 3 be reduced by any compensation
earned by the Executive as the result of the employment by
another
employer, by retirement benefits, by offset against any amount
claimed to be owed by Executive to Tosco or otherwise.
5. Tosco's obligations under this Agreement shall commence
on the date Executive first becomes an employee of Tosco, and
this
Agreement, except as to matters set forth in Sections 6, 7, and
8
below, shall continue in effect for an initial term of two (2)
years from the date hereof; provided, however, that on the
second
anniversary of this Agreement and at the end of any six month
renewal term, this Agreement shall automatically be extended for
a period of six months, unless not later than three months prior
to the scheduled end of the initial term or any six month
renewal
term Tosco shall have given notice to the Executive that it does
not wish to extend this Agreement.
6. In the course of his employment Executive will become
knowledgeable about Tosco's (and its affiliates') business
strategies and development plans; customers; pricing strategies;
technical, production, financial and commercial capabilities;
and
other confidential affairs of Tosco not readily available to the
public. In light thereof, Executive agrees:
(a) to keep secret and retain in the strictest
confidence all confidential matters of Tosco and its affiliates
and not to disclose them to any one outside of Tosco, either
during or, as provided below, after his employment by Tosco,
except in the course of performing the duties of his employment
by
Tosco or with Tosco's express written consent; and
(b) to deliver promptly to Tosco on termination of
this
Agreement, or at any other time that Tosco may request, all
memoranda, notes, records, reports, manuals, drawings,
blueprints
and other documents (and all copies thereof), whether in
written,
electronic, or other form, relating to Tosco's or its
affiliates'
business and all property associated therewith, which he may
then
possess or have under his control.
The provisions of this Section shall survive the
termination of Executive'S employment with Tosco for a period of
two (2) years and the obligations hereunder shall be in addition
to, and not in place of, any other confidentiality agreements or
obligations Executive may have with or to Tosco or its
affiliates.
7. (a) During Executive's employment with Tosco,
Executive
(i) shall not accept employment from any person or entity other
than Tosco or its affiliates without the prior written consent
of
Tosco, (ii) shall not invest in or provide services to any
person
or entity (other than Tosco or its affiliates) that engages in
the
same or similar businesses of Tosco and/or its affiliates (the
"Restricted Businesses"), and shall not engage in the Restricted
Businesses except on behalf of Tosco or its affiliates, without
the prior written consent of Tosco; provided, however, that
nothing herein shall prohibit the Executive from purchasing up
to
five percent of the outstanding voting shares of any corporation
involved in the Restricted Businesses that are publicly traded
on
any national securities exchange or reported on the NASD, Inc.,
and (iii) shall not participate in any investment or activity
that
would be in conflict with or substantially impair the
Executive's
ability to discharge the duties of his employment with Tosco.
(b) Following the termination of Executive's
employment
with Tosco, for a period of time equal to the period used in
determining any severance payment made hereunder (if any there
may
be), Executive shall not call on or otherwise solicit the
business
of past or present customers of Tosco or of those entities whose
business Tosco was soliciting or preparing to solicit during the
term of Executive'S employment with Tosco.
The obligations of this Section 7 are in addition to
those contained in Section 6 above.
8. Tosco agrees that Executive will be included as a
participant in a Cash Incentive Plan (or Plans) (CIP) for
calendar
year 1992, which will provide for a maximum possible aggregate
bonus of up to 150% of Executive's base annual salary, adjusted
to
the date you first became an employee of Tosco ("Employment
Date"). The total CIP bonus will be the sum of two elements,
with
each element providing for up to a maximum of 75% of base annual
salary, adjusted to employment Date. The first element will
from
the Tosco Refining Company base CIP and the second element will
be
from the CIP for Tosco Energy Corporation. If Tosco terminates
Executive's employment during the calendar year of a CIP, other
than for Cause, Executive shall be entitled to a pro-rata award
based on the part of the year he was in Tosco's employ. (To
calculate a partial year's award, earnings to the date of
termination would be annualized, the applicable annual award
under
a CIP determined, and that result would be multiplied by a
factor
representing the proportion of the year Executive was in Tosco's
employ.) If Executive terminates his employment with Tosco
other
than for Good Reason, he will not be entitled to a CIP award for
the year he terminates.
9. The terms of this Agreement shall supersede and replace
any employment or severance agreement which the Executive may
have
with Tosco and upon execution of this Agreement any such other
employment agreement shall be terminated and of no further force
or effect. Nothing in this Agreement shall be construed to be a
commitment or guarantee of future employment with Tosco.
10. This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any
amount would still be payable to him hereunder if he had
continued
to live, all such amounts, unless otherwise provided herein,
shall
be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee or other designee or, if there is
no
such designee, to his estate.
11. For the purpose of this Agreement, notices and all
other
communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when personally
delivered or when mailed by United States certified or
registered
mail, return receipt requested, postage prepaid, addressed to
the
respective addresses set forth below, or to such other address
as
either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address
shall
be effective only upon receipt:
To the Corporation: Tosco Corporation
72 Cummings Point Road
Stamford, CT 06902
To the Executive: Mr. Robert J. Lavinia
33 Doubling Road
Greenwich, CT 06830
12. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such
officer
as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of
this
Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of New York without
regard to its conflicts of law principles. All references to
sections of the code shall be deemed also to refer to any
successor provisions to such sections. Any payments provided
for
hereunder shall be paid net of any applicable withholding
required
under federal, state or local law. The obligations of Tosco
under
Section 3 shall survive the expiration of the term of this
Agreement.
13. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability
of
any other provision of this Agreement, which shall remain in
full
force and effect.
14. This Agreement may be executed in several
counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein
and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties,
whether oral or written, by any officers, employee or
representative of any party hereof; and any prior agreement of
the
parties hereto in respect of the subject matter contained herein
is hereby terminated and canceled.
16. Any controversy or claim arising out of or relating to
this Agreement, the interpretation thereof, or the breach
thereof,
shall be submitted to arbitration in the City of New York and
such
arbitration shall comply with and be governed by the provisions
of
New York State statutes governing arbitration.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
TOSCO CORPORATION
By:
Robert J. Lavinia
Executive
EXHIBIT 10(R)
CRUDE OIL SALES CONTRACT
(CONFIDENTIAL)
BP Contract Number: 20870
This document is "Part 1" of a two-part Agreement (this
"Agreement"), effective as of December 15, 1993 and hereby
confirms the Agreement set forth in the Letter Agreement dated
September 2, 1993 between Tosco Corporation ("Buyer") and BP Oil
Supply Company ("BP"), BP Oil Supply Common Terms and Conditions
for the Sale and Exchange of Alaskan North Slope Crude Oil,
Effective November 1, 1991 are hereby incorporated by reference
as "Part 2" of this Agreement and shall prevail unless
superseded
by the terms contained in Part 1 hereof.
TERM: This Agreement shall be in effect for a term of five
years commencing on the closing date of the Agreement
for Purchase and Sale of Assets between BP Exploration
& Oil Inc. and Tosco Corporation dated November 9,
1993.
SELLER: BP Oil Supply Company (BP)
BUYER: Tosco Corporation (Buyer)
CRUDE TYPE: Alaskan North Slope Crude Oil (ANS)
QUANTITY: Up to barrels per month of ANS net of BS&W
subject to a maximum of barrels per calendar
year.
Buyer shall provide BP with its Purchase Volume +0/-
5MBD for the delivery month (M) no later than the last
business day of the second month (M-2) prior to the
delivery month. Buyer shall also at that time commit
to a range of Purchase Volume for the following two
months as follows: for the month after delivery month
(M+1) a volume +/-10 MBD and for the following month
(M+2) a volume +/-15 MBD. Buyer shall provide BP with
its final purchase volume by the 15th of the month (M-
1) prior to the delivery month (M). (For example, by
December 31, 1993 Purchase volume +0/-5 MBD for
February 1994, committed +/-10 MBD for March 1994,
committed +/-15 MBD for April 1994; by January 15,
1994, fixed volume for February 1994). This rolling
three month process is meant to ensure stable supply
operations between Buyer and BP.
DELIVERY: All ANS sold under this Agreement shall be delivered
in
vessels provided by BP to Buyer's Ferndale, Washington
dock only, except in the case of unanticipated
operational difficulty of either party, including, but
not limited to, maintenance of refinery process units
or tanks, and ship delays. BP shall to the extent
necessary to mitigate the unanticipated operational
difficulty use reasonable efforts to accommodate such
alternate delivery points as Tosco may request with an
appropriate differential (not to exceed actual cost
differences to BP). Title and risk of loss of ANS
shall pass from BP to Buyer as the ANS passes the
vessel's last permanent flange at the delivery port.
If Buyer's Ferndale facility is not covered by Marine
Preservation Association (MPA) membership and if in
the
future the MPA imposes fees on its members (BP being a
member) for deliveries to non-member facilities, Buyer
shall reimburse BP for one-half of such fees up to a
maximum reimbursement of five cents per barrel.
PRICE: The monthly average spot market price of ANS for the
month prior to the intended delivery month. The final
volume fixed for any month will be sold at the price
applying to the intended delivery month regardless of
time of actual delivery. The spot market price for
any
month is .
If on the first or any subsequent anniversary of this
Agreement either party believes that the formula set
forth herein ceases on an ongoing basis to reflect the
midpoint of the spot market price, it may propose a
prospective revision to the formula to take effect six
months thereafter. Thereupon the parties will
negotiate in good faith to reach a revised formula
which accurately reflects such price. Until a revised
formula is agreed, the then effective formula shall
continue to be used.
If the parties cannot agree within 60 days either
party
may demand binding arbitration according to procedures
to be agreed by the parties or, in the absence of such
agreement, before a mutually-agreed single arbitrator
who shall be a person familiar with the ANS market and
whose authority shall be limited to selecting among
the
then current formula and any revised formulas proposed
by the parties. The arbitrator shall be charged with
selecting the formula which most closely approximates
the spot market price midpoint and shall detail the
reasons for his or her choice in a written opinion.
If in any given month either party believes the
formula
price misrepresents the spot market price because of
inclusion in the indices, of non-representative
transactions involving either of the parties, the
parties shall adjust the formula to eliminate the
effect of any such non-representative transactions.
If
the parties cannot agree on an adjustment then either
party may call for binding arbitration according to
the
procedures described in the paragraph above.
P&C: Buyer agrees that the terms of its purchase of ANS
hereunder is private and confidential and will not be
disclosed to any third party without Seller's consent
except as required by law or regulation.
INCENTIVE ALLOWANCE:
PAYMENT TERMS: Payments made by Buyer for ANS and by BP for
incentive allowance shall be made on or before the
fifth day after the date of delivery of ANS.
Associated payment details are subject to Article 8,
Section 8.2 contained in Part 2 of this Agreement.
SCHEDULING & NOMINATIONS: Buyer shall provide BP by the 15th of
the month (M-1) prior to the delivery month (M) its
nominated delivery windows for the month with
operational flexibility to request +/-5 MBD over/under
delivery from Purchase Volume. Upon mutual agreement,
Seller may have the operational flexibility to
over/under deliver Buyer's nominated volume by up to
15%. In the event by mutual agreement Seller should
under-deliver Buyer's nomination in any given month,
the under-delivered volume will be delivered in the
following month in addition to the following month's
nomination and that volume will be priced as if it had
been delivered during the prior month. To the extent
Seller over-delivers in any given month, the over-
delivered barrels shall be subtracted from the next
month's nomination and will be priced as if it had
been
delivered in the following month. This operational
flexibility will not increase the total Purchase
Volume
by Buyer in any given month. BP will deliver to Buyer
in parcel sizes between 200,000 and 600,000 barrels,
with typical deliveries of about 400,000 barrels.
Volumes committed for any given month shall be
delivered on a ratable basis in cargo quantities. If
the parties cannot agree, then BP shall deliver and
Tosco shall receive vessels during the arrival windows
on the following days of the month; from the 1st
through the 6th; from the 7th through the 14th; from
the 15th through the 21st; and from the 22nd through
the 28th.
ALLOCATION: Article 14 in Part 2 of this Agreement is amended by
adding a new sentence as follows:
"In the event BP puts an allocation program into
effect, it shall allocate quantities to Buyer on a
basis which is no less favorable than that applied to
BP's other customers located on the U.S. West Coast."
LAYTIME: Modify Article 6, Section 6.6, in Part 2 of this
Agreement by inserting the following in lieu of the
first sentence of the fifth paragraph: "36 running
hours shall be allowed as laytime for discharging a
full cargo (including crude oil washing and/or cargo
stripping, if performed) and a pro rata amount of
hours, plus six additional hours, shall be allowed for
discharging partial cargoes subject to a minimum of 12
hours. For example, if a partial cargo of 400 MB is
delivered on a 120 MDWT vessel with capacity of 800
MB,
a partial cargo laytime of 36 x (400/800) = 18 plus 6,
equal to a total of 24 hours will be allowed."
QUANTITY AND
QUALITY DETERMINATION:
Article 4.2C in Part 2 of this Agreement is amended as
follows: Delete "as available on the vessel" in the
first sentence. Add in the second sentence, before
the
word "inspectors", the word "independent".
FINANCIAL SECURITY: Tosco Corporation shall comply with the
payment terms as set forth in Section 8.2 of Part 2 of
this Agreement and will provide additional financial
security as set forth in Section 8.4 of Part 2 of this
Agreement only if there is a material adverse change
in
the financial condition of Tosco relative to the date
of this Agreement.
NOTICES: All written notices shall be sent by U.S. mail, telex
or telefax to the addresses listed below. Except as
otherwise provided in this Agreement, the effective
date of a notice shall be the date of receipt by the
addressee. A party shall promptly notify the other
party of any address change.
BP Oil Supply Company TOSCO Corporation
200 Public Square 2300 Clayton Road
5th Floor Suite 1100
Cleveland, OH 44114 Concord, CA 94520-2100
Telex: 62917760 (preferred mode of
communication)
Telefax: (216) 586-5243
BP OIL SUPPLY COMPANY TOSCO CORPORATION
By:________________________ By:___________________
Title:_____________________ Title:________________
Date:______________________ Date:_________________
EXHIBIT 10(s)
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT ("Agreement"). with
an effective date of December 28, 1993, is between The British
Petroleum Company p.l.c., an English Corporation, with an
address of Britannic House, 1 Finsbury Circus, London EC2M7BA,
England; BP Exploration & Oil Inc., an Ohio Corporation with
offices at 200 Public Square, Cleveland, Ohio 44114-2375
(collectively "BP") as licensor and Tosco Corporation, a Nevada
corporation with an address of 72 Cummings Point Road, Stamford,
Connecticut 06902 ("Tosco") as licensee;
WHEREAS, BP has for many years been a refiner and
marketer of motor fuel, motor oil and related petroleum products
to the public in the United States; and
WHEREAS, because of the quality of the motor fuel,
motor oil and related petroleum products produced and thereafter
sold by BP and the excellent service rendered at BP retail
gasoline service stations the public has come to associate a
very high degree of consistency and quality with the motor fuel,
motor oil and related goods and services of BP; and
WHEREAS, BP has made significant expenditures
advertising and promoting its motor fuel, motor oil and related
petroleum products and services using certain trademark, service
marks, trade dress, color schemes, designs and other verbal and
non-verbal symbols which have come to represent BP throughout
the United States; and
WHEREAS, BP Exploration & Oil Inc. and Tosco have
entered into an Agreement for the Purchase and Sale of assets
pursuant to which Tosco has purchased the Ferndale refinery,
several terminals and numerous retail gasoline stations in
Washington and Oregon from BP; and
WHEREAS, Tosco wishes to use trademark, service mark,
trade dress, color schemes, designs and other verbal and
non-verbal symbols owned by BP in conjunction with the sale of
motor fuel, motor oil and related services in Washington and
Oregon;
WHEREAS, BP is willing to license such use subject to
the terms and conditions set forth herein which are designed to
protect the valuable goodwill of BP's trademarks, service mark,
trade dress, color schemes, designs and the verbal and
non-verbal symbols associated with BP's image as a refiner and
marketer of motor fuel, motor oil and related petroleum products
and services;
NOW THEREFORE in consideration of the premises and the
agreements hereinafter set forth, the parties agree as follows:
Article 1
DEFINITIONS
The terms set forth below shall be defined as follows
when used in this Agreement:
1.1 Licensor - The British Petroleum Company p.l.c.
for the trademark and service mark BP and BP Exploration & Oil
Inc., a wholly-owned subsidiary of the British Petroleum Company
p.l.c. for the trade dress, color schemes and other verbal and
non-verbal symbols associated with the trademark and service
mark BP. BP Exploration & Oil Inc. shall be directly
responsible for enforcing the rights and fulfilling the
obligations set forth herein.
1.2 Licensee - Tosco Corporation.
1.3 Licensed Mark - the service mark and trademark
"BP".
1.4 Licensed Marketing Indicia - the trade dress,
color schemes, designs, and verbal and non-verbal symbols
associated with BP's retail image. Such symbols include, but
are not limited to, the proprietary typeface associated with
signage at BP service stations; canopy facia including both the
rounded "bullnose" sections and the flat sections contiguous to
the "bullnose" sections; the round monocolumns found on multiple
product dispensers; the round shrouds that surround the major
identification (MID) signs; the round corners on the ancillary
buildings and the colors green and yellow.
* Photographs of a service station displaying one
version of the Licensed Marketing Indicia accompany
this Agreement as Exhibit A.
1.5 Licensed Goods and Services - motor fuel and
motor oil produced in accordance with BP specifications; car
wash services; motor vehicle repair services; and retail
convenience store services.
1.6 Licensed Territory - the States of Oregon and
Washington, U.S.A.
1.7 Effective Date - December 15, 1993.
Article 2
LICENSE GRANT
2.1 Subject to the terms and conditions of this
Agreement, BP grants to Tosco the exclusive right to use the
Licensed Mark and the Licensed Marketing Indicia only in the
Licensed Territory and only in connection with the production,
advertising, promotion and sale of the Licensed Goods and
Services. As consideration for use of the Licensed Mark and the
Licensed Marketing Indicia Tosco shall pay BP a royalty fee
which shall be paid up for the first five (5) years after the
Effective Date of this Agreement. This royalty fee shall be
deemed a part of the purchase price paid to BP pursuant to the
Agreement for Purchase and Sale of Assets between BP and Tosco.
Thereafter, the license granted shall bear a royalty fee as
provided in Section 3.04 of this Agreement.
2.2 Tosco may grant sublicenses to third party
petroleum jobbers and dealers to use the Licensed Mark and the
Licensed Marketing Indicia in the Licensed Territory in
connection with the Licensed Goods and Services and may
authorize the jobbers to grant further rights to their reseller
customers for such use, so long as all such third parties first
agree in writing that their rights are subordinate to and
derived from this Agreement and that they shall be bound by the
terms of this Agreement related to use and display of the
Licensed Mark and Licensed Marketing Indicia and sale of the
Licensed Goods and Services.
2.3 Tosco shall not use the Licensed Mark or the
Licensed Marketing Indicia or any mark similar to the Licensed
Mark as part of its corporate name or its trade name or at or on
any manufacturing or terminal facility.
2.4 Until this Agreement is terminated BP shall not
use the Licensed Mark or the Licensed Marketing Indicia in the
Licensed Territory in connection with the Licensed Goods and
Services.
2.5 Nothing in this Agreement shall be deemed to
constitute an assignment by BP of the Licensed Mark or the
Licensed Marketing Indicia or any of its rights therein or to
give Tosco or any sublicensee of Tosco any right, title or
interest in and to the Licensed Mark or the Licensed Marketing
Indicia except as provided in this Agreement.
2.6 Tosco acknowledges that neither this Agreement
nor the relationship contemplated by this Agreement is a
"Franchise" or "Business Opportunity" within the meaning of:
(i) 16 Code of Federal Regulations 436;
(ii) Revised Code of Washington Title 19, Chapters
19.100, 19.110 and 19.120;
(iii) Oregon Revised Statutes Title 50, Sections
650.005 through 650.250;
(iv) 15 United States Code Chapter 55.
Tosco shall not, under sections 2.02 above, or otherwise, grant
any rights in the name of or on behalf of BP or otherwise
obligate BP or cause BP to be liable under the statutes set
forth herein or their amended, successor or replacement
statutes.
Article 3
TERM AND TERMINATION
3.1 This Agreement shall have a term of five (5)
years commencing with its Effective Date. It shall continue
thereafter unless it is terminated as provided for in this
Article or elsewhere in this Agreement.
On the fourth anniversary of the Effective Date of
this Agreement and thereafter either BP or Tosco may terminate
the license grant provision of this Agreement upon giving one
(1) year's prior notice in accordance with the notice provisions
of this Agreement.
3.2 In addition to the termination provisions set
forth elsewhere in this Agreement if, at any time, BP believes
that Tosco is in breach of any of its obligations under this
Agreement, it may send Tosco notice thereof. Tosco shall have
sixty (60) days from the date it receives such notice to cure
such breach. If such breach is not cured within such period of
time then BP may terminate the license grant provisions of this
Agreement upon giving one hundred and twenty (120) days prior
notice to Tosco.
3.3 At least forty-five (45) days prior to filing a
petition for any arrangement or reorganization under any
bankruptcy or insolvency law, Tosco shall inform BP of its
intention to file such a petition or of any other party's
intention to file such a petition. Failure to conform to this
notice requirement shall be an incurable prepetition breach of
this Agreement. BP may immediately terminate the license grant
provisions of this Agreement if Tosco or another party declares
its intention to file a petition for any arrangement or
reorganization of Tosco under any bankruptcy or insolvency law.
3.4 Provided that Tosco has fully performed all its
obligations under this Agreement, BP and Tosco shall, prior to
the third anniversary of this Agreement, enter into negotiations
to extend Tosco's use of the Licensed Mark and the Licensed
Marketing Indicia in the Licensed Territory. Any such extension
agreement shall include use of the Licensed Mark and the
Licensed Marketing Indicia on terms and conditions reflecting
fair market value as agreed to by BP and Tosco.
3.5 Upon the termination of the license grant
provisions of this Agreement Tosco shall cease to use in any
manner whatsoever the Licensed Mark and the Licensed Marketing
Indicia. In particular, Tosco shall stop using all signs,
advertising materials, forms and promotional materials that
display the Licensed Mark or the Licensed Marketing Indicia.
Tosco shall further cause any third parties who are using the
Licensed Mark and the Licensed Marketing Indicia under Tosco's
sublicense to cease all such use. Within 60 days of the
termination or expiration of the license grant provisions of
this Agreement, Tosco shall provide a written report to BP
setting forth each location where it had authorized any use of
the Licensed Mark and the Licensed Marketing Indicia and the
date that all such use ceased.
3.6 Within sixty (60) days of the termination of the
license grant provisions of this Agreement Tosco shall, at its
expense, deliver to one (1) of two (2) designated storage sites
all signs, station design elements or other materials in the
Licensed Territory bearing the Licensed Mark or constituting the
Licensed Marketing Indicia. One (1) designated storage site
shall be located within the city limits of Seattle, Washington;
the other designated storage site shall be located within the
city limits of Portland, Oregon. The material delivered shall
be in as good condition as when installed by Tosco or received
by Tosco from BP normal wear and tear excepted.
Thereafter BP shall have sixty (60) days to remove all
such signs, station design elements or other materials bearing
the Licensed Mark or constituting the Licensed Marketing Indicia
from each of the designated sites. If BP fails to remove all
such materials within the sixty (60) day period, then BP shall
pay reasonable storage fees until such time as all such
materials are removed.
As an alternative or a supplement to the above
procedure BP may instruct Tosco to destroy certain signs,
station design elements or other materials bearing the Licensed
Mark or constituting the Licensed Marketing Indicia. Tosco
shall bear all costs associated with any such destruction of
materials so long as such costs are lower than the cost of
transportation and storing materials that would otherwise be
destroyed.
Unless the provisions of Section 4.4 are applicable,
Tosco shall also take all necessary steps to alter the existing
color scheme of each motor fuel service station in the Licensed
Territory such that the service station and related equipment,
including vehicles, do not suggest to the public in any way the
retail image of BP. Such necessary steps shall include, but are
not limited to, repainting to a color other than green the
following: canopies, MID signs, pump dispenser panels, pump
island spreaders and the background color for the permanent
signage, at each motor fuel gasoline service station in the
Licensed Territory.
3.7 As soon as practicable but in any event within
one (1) year after the expiration or termination of the license
grant provision of this Agreement, Tosco shall delete from any
telephone directory entry or yellow pages any display or listing
of the Licensed Mark or the Licensed Marketing Indicia. Tosco
shall also direct its sublicensees to remove any such telephone
directory or yellow pages listing that displays the Licensed
Mark or the Licensed Marketing Indicia.
Article 4
OWNERSHIP OF THE MARK AND MARKETING INDICIA
4.1 Tosco acknowledges BP's exclusive right, title
and interest in and to the Licensed Mark, the Licensed Marketing
Indicia and the goodwill associated therewith. Tosco shall not
represent in any manner that it has ownership in the Licensed
Mark or the Licensed Marketing Indicia. Tosco acknowledges
that, other than as expressly provided herein, its use thereof
shall not create any right, title or interest in Tosco but that
all such use by Tosco shall inure to the benefit of BP.
4.2 Tosco shall not do or permit to be done any act
that might jeopardize or invalidate the Licensed Mark and the
Licensed Marketing Indicia or the goodwill or title of BP in and
to the Licensed Mark and the Licensed Marketing Indicia. Tosco
shall not dispute, contest, jeopardize or impair directly or
indirectly the validity of BP's ownership of the Licensed Mark
or the Licensed Marketing Indicia.
4.3 During this Agreement and after the license grant
provisions of this Agreement have been terminated Tosco shall
not adopt any name or symbol that incorporates the color green
or is otherwise similar to the Licensed Mark in the Licensed
Territory. After the license grant provisions of this Agreement
have been terminated, Tosco shall not use the color green on
canopies, MID signs, pump dispenser panels, pump island
spreaders or as the background color for permanent signage, at
any gasoline service station in the Licensed Territory.
4.4 Notwithstanding the provisions of Section 4.3
Tosco may, after the license grant provisions of this Agreement
have been terminated, use the color green if Tosco must do so as
part of a rebranding program whereby Tosco assumes the brand and
marketing indicia of an established national marketer of
gasoline that has already been using the color green to identify
its brand or marketing indicia. Nothing in this section shall
be construed to limit BP's ability to enforce BP's rights in the
Licensed Mark or the Licensed Marketing Indicia against any such
established national marketer or its licensee. Nothing in this
section shall be construed as granting Tosco the right to use
the color green inside the Licensed Territory in any manner as
part of a brand or marketing indicia that Tosco develops or that
is developed under Tosco's influence or direction.
4.5 BP acknowledges that after the Effective Date of
this Agreement the MID signs that BP owns shall become the
property of Tosco. So long as Tosco complies with the terms and
conditions of this Agreement Tosco may erect any further such
MID signs in the Licensed Territory as Tosco wishes. If this
Agreement is terminated, Tosco shall take all necessary actions
to ensure that all MID signs in the Licensed Territory bearing
the Licensed Mark or containing elements of the Licensed
Marketing Indicia are altered so that they do not convey to the
consuming public the retail image of BP. Such actions shall
include, but are not limited to, removing the round pole shrouds
and removing all green and yellow BP signage, message and price
panels from each such sign.
Article 5
DISPLAY OF THE LICENSED MARK AND THE LICENSED MARKETING
INDICIA
5.1 Tosco shall only use the Licensed Mark and the
Licensed Marketing Indicia in connection with the Licensed Goods
and Services and only in the Licensed Territory. Tosco shall
display the proper form of trademark and service mark notice
associated with the Licensed Mark in accordance with
instructions received from BP.
5.2 BP shall provide Tosco with relevant portions of
its Visual Standards Manuals as updated from time to time that
relate to the use and display of the Licensed Mark and the
Licensed Marketing Indicia. Tosco shall strictly comply with
the standards set forth in the Visual Standards Manuals. BP
shall notify Tosco in writing if the standards embodied in the
Visual Standards Manuals are changed. Tosco shall acknowledge
any such changes in writing and shall, at its own expense,
incorporate such changes at a rate and in a manner inside the
Licensed Territory similar to the rate such changes are being
made by BP outside the Licensed Territory.
5.3 To assist Tosco and any third parties authorized
by Tosco to comply with this Agreement in their use of the
Licensed Mark and the Licensed Marketing Indicia, BP shall
designate a representative to advise on proper techniques for
displaying the Licensed Mark and the Licensed Marketing Indicia.
BP shall make such a representative available to consult with
Tosco for the duration of this Agreement.
5.4 BP shall provide Tosco with the names of
authorized vendors for the sale or repair of the Licensed
Marketing Indicia. Tosco may select other vendors provided that
such vendors' construction or repairs conform to BP's
specifications and standards of display.
5.5 BP shall, upon reasonable advance notice, have
the right to inspect any motor fuel service station in the
Licensed Territory displaying the Licensed Mark and the Licensed
Marketing Indicia to ensure that appropriate visual standards
are being met. Tosco's agreements with its sublicensees shall
provide that BP shall have such inspection right with respect to
the sublicensees' stations.
5.6 If BP determines that its standards for the
visual display of the Licensed Mark and the Licensed Marketing
Indicia at an individual location are not being met, BP shall so
advise Tosco. Tosco or any third party sublicensed by Tosco to
use the Licensed Mark and the Licensed Marketing Indicia shall
promptly take the necessary corrective actions to conform to the
visual standards set forth by BP. If Tosco does not correct the
defect in visual standards within 5 days or such longer time as
may be reasonable in the circumstances, the continuance of the
defect shall constitute an "occurrence". BP shall notify Tosco
of each such occurrence.
If during the term of this Agreement Tosco or any
third party authorized by Tosco to use the Licensed Mark or the
Licensed Marketing Indicia is responsible for _____ occurrences
at a particular location BP may terminate the license grant
provisions of this Agreement for that location upon giving one
hundred and twenty (120) days prior notice to Tosco. If during
the term of this Agreement a total of ______ locations
accumulate _____ occurrences referred to herein then BP may
terminate the license grant provisions of this Agreement upon
giving one hundred and twenty (120) days prior notice to Tosco.
Article 6
QUALITY OF GOODS ASSOCIATED WITH THE LICENSED MARK AND THE
LICENSED MARKETING INDICIA
6.1 All motor fuel or motor oil sold by Tosco or its
sublicensees in the Licensed Territory under the Licensed Mark
shall conform to BP's specifications for such products. To that
end Tosco shall only use the Licensed Mark and the Licensed
Marketing Indicia in connection with motor fuel or motor oil
that meets or exceed the formulation specifications set forth in
Exhibit B to this Agreement. BP may by written notice change
its formulation specifications or its proprietary gasoline
additives from time to time. Tosco shall acknowledge in writing
its receipt of any such changes and immediately thereafter
incorporate them in the products it produces for sale under the
Licensed Mark and the Licensed Marketing Indicia in the Licensed
Territory. BP shall not impose unreasonable product
formulations on Tosco. In this context reasonableness shall be
defined as follows: a) the minimum product specifications as
defined by the Olympic Pipeline and the Santa Fe Pipeline
Partnership or b) product specifications for products then being
sold by two major brand competitors or three competitors in the
Licensed Territory. Other than this reasonableness definition,
BP shall not impose on Tosco higher specifications than those
used by BP outside the Licensed Territory.
6.2 Tosco acknowledges that the information contained
in the product formulation specifications is a confidential
trade secret of BP. Tosco shall exercise at least the same
degree of diligence to protect BP's product formulation
specifications as Tosco takes for its own most confidential
proprietary information. Such necessary steps shall include,
but are not limited to, restricting the access of employees or
other parties to BP's formulation specifications and having
employees and others who must have access to BP's formulation
specifications sign confidentiality agreements. If Tosco fails
to comply with its secrecy obligations under this Agreement BP
may immediately terminate the license grant provisions of this
Agreement. The confidentiality provisions of this Agreement
shall survive its termination or expiration for a period of ten
(10) years.
6.3 To ensure that BP's established standards of
gasoline quality are maintained throughout the duration of this
Agreement, Tosco shall utilize BP's proprietary additives in all
motor fuel sold in the Licensed Territory under the Licensed
Mark and the Licensed Marketing Indicia. Such additives are a
necessary component of the formulation specifications set forth
in Exhibit B.
6.4 To further ensure that BP's established standards
of motor fuel quality are maintained throughout the duration of
this Agreement Tosco shall, at its expense, hire an independent
laboratory to demonstrate that the motor fuels sold under the
Licensed Mark and the Licensed Marketing Indicia meet or exceed
the product formulation specifications set forth in Exhibit B.
The testing required shall be done at least as often as BP
conducts such similar testing. Such testing shall conform to
the procedures set forth in Exhibit C and shall also include the
following: random sampling each year of at least ten retail
gasoline stations in both the greater Seattle and Portland
markets, with at least five such stations sampled each six month
period; sampling of the refinery and terminals every month.
Tosco shall instruct the independent laboratory to send BP a
copy of the results at the time such test results are provided
to Tosco.
The testing required in this Section shall be in
addition to any testing required by local, state or federal laws
or regulations such as regulations directed to oxygenated
gasoline, low RVP gasoline, low sulfur diesel fuel or
reformulated gasoline.
6.5 If the independent laboratory determines that the
motor fuel produced by Tosco has failed to meet the formulation
specifications set forth by BP, Tosco shall immediately explain
to BP's designated representative the cause for such failure.
If Tosco's motor fuel has failed to meet the
specifications because of willful misconduct BP may immediately
terminate the license grant provisions of this Agreement. If
Tosco's motor fuel has failed to meet BP's specifications
because of inadvertence Tosco shall seek a waiver from BP. If
BP determines that a waiver from its product formulation
specifications will not result in a materially defective
gasoline BP may grant the waiver without further penalty to
Tosco.
If BP determines that a waiver is not possible then BP
and Tosco shall consult to determine how best to dispose of the
defective motor fuel or what corrective actions are necessary by
Tosco to eliminate or minimize the possibility that such motor
fuel could be purchased by consumers.
6.6 Tosco and its sublicensees shall also comply with
local, state or federal laws and regulations applicable to motor
fuel quality. If Tosco or its sublicensees fails to comply with
local, state or federal laws and regulations applicable to motor
fuel quality Tosco shall advise BP on the reason for any such
failure. BP and Tosco shall consult to determine what
corrective actions are necessary by Tosco to eliminate or
minimize the effect of such non-compliance and what measures
Tosco can take to avoid any future non-compliance. If the
failure is due to willful misconduct of Tosco BP may immediately
terminate the license grant provisions of this Agreement for a
particular site or sites depending on the scope of the willful
failure. ln the event of willful misconduct by a sublicensee, BP
may require Tosco to immediately terminate the sublicensee or a
particular site or sites of the sublicensee depending on the
scope of the willful failure.
If the failure to meet such standards is due to
inadvertence then Tosco shall take the necessary corrective
actions required by local, state or federal laws or regulations.
If Tosco or its sublicensees fails to meet applicable local,
state or federal regulations on motor fuel quality on _________
BP may terminate the license grant provisions of this Agreement
upon giving Tosco one hundred and twenty (120) days prior
notice.
For purposes of this Section 6.6, a failure to comply
because of events flowing from a common source shall constitute
a single event. (For example, if a batch of off-grade motor
fuel is distributed to several stations and used to fuel a
number of vehicles, it will count as one incident of non-
compliance.) If Tosco terminates a non complying
jobber-supplied site or sites, non-compliance attributable to
such sites shall be deleted from the non-compliance count. If
new fuel regulations are imposed that result in a significant
increase in citations to all gasoline marketers in the Licensed
Territory BP and Tosco shall consult to determine whether such
violations by Tosco constitute non-compliance of this Agreement
that should subject Tosco to possible termination of the license
grant provisions of this Agreement.
Article 7
QUALITY OF SERVICE ASSOCIATED
WITH THE LICENSED MARK AND THE LICENSED MARKETING INDICIA
7.1 Tosco shall operate its business in the Licensed
Territory in accordance with the standards and requirements
necessary to maintain the quality level of service now
associated by consumers with the Licensed Mark and the Licensed
Marketing Indicia in the Licensed Territory as defined by
section 7.2-7.5 of this Agreement.
7.2 To ensure that the existing standards of service
and responsiveness in the Licensed Territory are maintained,
Tosco shall develop customer responsiveness programs that meet
the following criteria: (1) customer inquiries or complaints
shall be addressed within a maximum of fourteen (14) days of
receipt by Tosco or its sublicensees; (2) Tosco shall institute
a Tosco Shopper Program (TSP) similar to BP's "Mystery Shopper
Program." Tosco shall design its TSP in such a manner that its
results measure the same criteria as and can be meaningfully
compared with the results generated by BP's Mystery Shopper
Program. To achieve such meaningful comparisons Tosco shall
sample its customers and its sublicensees' customers at the same
intervals as such customers are sampled under BP's Mystery
Shopper Program. Tosco shall provide BP copies of the results
of all TSP surveys.
7.3 The baselines for the TSP for the first year of
this Agreement (1994) shall be as follows:
Self-Service Mini-Service Station
Housekeeping
Average
Consistency
Each subsequent year beginning in 1995 the baselines
for Tosco's TSP Program shall be either the baselines from the
prior year or from any earlier year whichever represents the
higher baselines for compliance by Tosco.
If the results of the TSPs in any three month period
are lower than the applicable baselines, Tosco shall take the
necessary steps to ensure that the resulting customer
satisfaction levels are restored within two (2) testing periods.
If, _______________ any one of the elements of Tosco's TSP
Program still does not meet the applicable baselines then BP may
terminate the license grant provisions of this Agreement.
7.4 So that the existing standards of service and
responsiveness are not diminished any service station in the
Licensed Territory bearing the Licensed Mark and the Licensed
Marketing Indicia shall honor BP's and other credit cards in
accordance with the terms of BP's credit card program so long as
BP sponsors such a program. Tosco and its sublicensees shall
also stock sufficient quantities of BP branded motor oil to meet
customer demand in the Licensed Territory.
7.5 Tosco shall ensure that all service stations not
branded BP on the Effective Date of this Agreement that it later
authorizes to use the Licensed Mark and the Licensed Marketing
Indicia shall comply with the retail marketing matrix attached
to this Agreement as Exhibit D; further, Tosco shall ensure that
all such service stations sell at least twenty-five thousand
(25,000) gallons of motor fuel per month; have a paved driveway,
a canopy for the gasoline pumps and Electronic Point of Sale
(EPOS) equipment for processing credit card sales.
7.6 To further ensure that the goodwill associated
with the Licensed Mark and the Licensed Marketing Indicia is
preserved in the Licensed Territory and to preserve the image
and value of the BP brand, Tosco shall either participate in, or
adopt, at its expense, motor fuel and product guarantee programs
comparable to those adopted by BP from time to time outside the
Licensed Territory in connection with the Licensed Goods and
Services.
Article 8
ADVERTISING
8.1 Tosco shall submit to BP for prior approval
samples of any proposed advertising materials, signage, graphic
designs, product brochures, technical data sheets or premium
items bearing the Licensed Mark or the Licensed Marketing
Indicia planned for public viewing or listening and materials
not bearing the Licensed Mark used to promote products and
services at motor fuel service stations within the Licensed
Territory. BP shall notify Tosco in writing if it objects to
any such materials and, unless the objections are resolved,
Tosco shall not use or display such materials. BP shall not
unreasonably withhold its approval or unreasonably object to any
such materials submitted by Tosco for prior approval. If BP
does not notify Tosco of its objection or disapproval within
fifteen (15) days after receipt by BP of any such submission of
advertising materials, signage, graphic designs, product
brochures, technical data sheets or premium items, such approval
shall be deemed to have been given by BP.
BP shall notify Tosco in writing if it objects to any
such materials and, unless the objections are resolved, Tosco
shall not use or display such materials. BP shall not
unreasonably raise such objections.
8.2 To help ensure that the goodwill associated with
the Licensed Mark and Licensed Marketing Indicia is preserved in
the Licensed Territory Tosco shall commit funds to advertise the
goods and services associated with the Licensed Mark and the
Licensed Marketing Indicia. Tosco shall spend a minimum of
_____ during each ____ consecutive year period that this
Agreement is in force for advertising that promotes the BP brand
in association with the Licensed Goods and Services. Of this
total Tosco shall spend at least _____________ per year for the
duration of this Agreement for advertising on television, on
radio, in magazines, in newspapers and on billboards.
Article 9
INFRINGEMENT
9.1 Tosco shall immediately notify BP in writing of
any apparent infringement of, or challenge to, Tosco's use of
the Licensed Mark or the Licensed Marketing Indicia, or of any
claim by any person of any rights in a service mark, trademark
or overall image similar to the Licensed Mark or the Licensed
Marketing Indicia. Tosco shall not directly or indirectly
communicate with any person other than BP or BP's legal counsel
in connection with any such alleged infringement, challenge or
claim.
9.2 BP shall have sole discretion to take the actions
it deems appropriate and the exclusive right to control any
litigation, U.S. Patent and Trademark Office proceeding or other
administrative proceeding arising from Tosco's use of the
Licensed Mark or the Licensed Marketing Indicia. Tosco shall
execute any and all documents and do all such acts and things
necessary in the opinion of BP to protect and maintain the
interest of BP in any such proceeding. If BP, in its sole
discretion, decides not to take further action in any
litigation, U.S. Patent and Trademark Office proceeding or other
administrative proceeding arising from Tosco's use of the
Licensed Mark or the Licensed Marketing Indicia, Tosco may take
such further action ____________ BP shall not unreasonably
withhold such approval. Tosco shall bear all the costs
associated with any such further action.
9.3 Except as set forth above in Section 9.2, BP
shall reimburse Tosco for all reasonable expenses incurred in
connection with any litigation, U.S. Patent and Trademark Office
proceeding or other administrative proceeding arising from
Tosco's use of the Licensed Mark or the Licensed Marketing
Indicia unless such litigation, U.S. Patent and Trademark Office
proceeding or other administrative proceeding arises from a
dispute between BP and Tosco.
9.4 BP represents and Tosco acknowledges that BP is
granting Tosco rights only to the extent, that BP has such
rights. If the Licensed Mark or the Licensed Marketing Indicia
are found to be invalid, defective or otherwise not the property
of BP, Tosco shall have no claim in law or equity seeking
compensation or redress for any such invalidity or defect, and
hereby expressly waves the right to pursue any such action or
proceeding.
Article 10
ASSIGNMENT/TRANSFER
10.1 This Agreement is personal to Tosco. Tosco
shall not attempt to assign or transfer this Agreement or any of
its rights or obligations hereunder except to one of its
affiliated companies. If Tosco does assign this Agreement to
one of its affiliated companies Tosco shall still assume primary
responsibility for its obligations under this Agreement. An
acquisition of more than _______ of the stock of Tosco by a
third party shall be considered a transfer of this Agreement.
BP may then terminate the license grant provisions of this
Agreement upon giving Tosco one hundred and twenty (120) days
prior notice.
BP may terminate the license grant provisions of this
Agreement if Tosco sells or otherwise disposes of all or
substantially all of the retail properties in the Licensed
Territory that Tosco has purchased from BP; provided however,
that the sale or transfer of properties for financing purposes
under which Tosco retains control of the properties shall not
constitute grounds for termination. Termination under this
Section shall be effective if BP gives Tosco one hundred and
twenty (120) days prior notice.
Article 11
INDEMNIFICATION AND INSURANCE
11.1 Except to the extent directly caused by a defect
in the product specifications contained in Exhibit B, BP assumes
no liability to Tosco or to third parties with respect to goods
sold or services rendered under the Licensed Mark or the
Licensed Marketing Indicia by Tosco or by third parties
sublicensed by Tosco.
11.2 Tosco shall indemnify and hold harmless BP, its
officers, directors, subsidiaries and affiliates against any and
all claims, liabilities, damages, costs and expenses including
attorneys' fees incurred by BP arising out of or attributable in
any way to use by Tosco or third parties sublicensed by Tosco of
the Licensed Mark or the Licensed Marketing Indicia or the
breach by Tosco of any provision of this Agreement. Tosco shall
have no obligation to indemnify and hold harmless BP, its
officers, its directors, subsidiaries and affiliates if the
Licensed Mark or the Licensed Marketing Indicia are found to be
invalid, or otherwise not the property of BP.
11.3 Tosco shall purchase and maintain in full force
and effect during the term of this Agreement comprehensive
general or commercial general liability insurance covering
personal injury and property damage claims arising out of
Tosco's operations, which shall include contractual liability,
products liability and completed operations coverage. The
insurance shall be in an amount of at least ten million
($10,000,000) dollars combined single limit per occurrence. The
policy or policies of insurance shall be endorsed to name BP as
an additional insured with respect to any liability BP may incur
as a result of Tosco's or its sublicensees' use of the Licensed
Mark or the Licensed Marketing Indicia and to provide that such
coverage shall be primary to any other liability insurance
obtained and carried by BP.
11.4 At the Effective Date of this Agreement Tosco
shall furnish BP certificates issued by Tosco's insurer
indicating that all required insurance is in full force and
effect. Such certificates shall also include an undertaking by
the insurer to give BP written notice 10 days prior to
cancellation of or a material change in the coverage.
11.5 Tosco's failure or neglect to provide or keep in
force any or all of the insurance required under this Agreement
shall be considered a material breach of this Agreement that
shall give BP good cause for immediate termination.
Article 12
COMPLIANCE WITH LAWS AND REGULATIONS
12.1 Tosco shall acquaint itself and strictly comply
with all local, state and federal laws, ordinances and
regulations relating to the production, sale, handling and
distribution of motor fuel and other products including those
relating to environmental protection and compliance, and health,
safety and sanitation. Any motor fuel or other products
produced or sold in the Licensed Territory and services rendered
in the Licensed Territory by Tosco under the Licensed Mark and
the Licensed Marketing Indicia shall be in accordance with all
applicable local, state, and national laws and regulations.
Article 13
NOTICES
13.1 Any notice required or permitted to be given
under this Agreement shall be in writing and shall be given by
first class mail postage prepaid, by mail courier or by
facsimile transmission with a confirmation copy by first class
mail postage pre-paid. Any such notice shall be addressed as
follows:
(a) In the case of BP:
BP Exploration & Oil Inc.
200 Public Square, 39-5300-B
Cleveland, Ohio 44114-2375
Attn: Corporate Secretary
with a copy to:
The British Petroleum Company p.l.c.
Britannic House
1 Finsbury Circus
London EC2M7BA, England
Attn: Group Legal: Trade Marks
(b) In the case of Tosco:
Tosco Corporation
72 Cummings Point Road
Stamford, Connecticut 06902
Attn: Vice President & General Counsel
13.2 Tosco shall accept any notice directed to
sublicensees, jobbers or branded dealers under this Agreement.
Article 14
GENERAL PROVISIONS
14.1 This Agreement shall be governed by the
substantive and procedural laws of the State of New York without
regard to rules on choice of law. BP and Tosco hereby submit to
the jurisdiction and venue of all courts located within the
State of New York, County of New York to hear disputes arising
under this Agreement.
14.2 Nothing in this Agreement is intended to
constitute or shall be construed so as to constitute BP and
Tosco as partners or joint venturers; or the employees, agents
or representatives of BP as employees, agents or representatives
of Tosco; or the employees, agents or representatives of Tosco
as the employees, agents or representatives of BP.
14.3 Each section, part, term or provision of this
Agreement shall be considered severable. If, for any reason, a
section is determined to be invalid or unenforceable, that
section shall be deemed not part of this Agreement and it shall
not impair the operation or effect of the remaining terms or
provisions of this Agreement.
14.4 The failure of BP or Tosco to require
performance of any provision in this Agreement shall not be
deemed a waiver. Any such failure shall not deprive BP or Tosco
of their right to require such performance in a particular
instance or at any other time. Any waiver of this Agreement
must be in writing signed by the waiving party.
14.5 This Agreement embodies the complete
understanding of the parties with respect to its subject matter.
It supersedes any prior understanding between the parties,
whether written or oral, with respect to its subject matter and
may not be modified or amended except in a written document
signed by a duly authorized representative of BP and Tosco.
14.6 The section or paragraph headings contained in
this Agreement are for convenient reference only, and shall not
in any way affect the meaning or interpretation of this
Agreement. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original,
but all of which shall constitute but one.
IN WITNESS WHEREOF, the parties have caused this
Trademark License Agreement to be duly executed by their
authorized officers or representatives as of the day and year
first written above.
THE BRITISH PETROLEUM COMPANY p.l.c. BP EXPLORATION & OIL INC.
By:________________________________ By:______________________
Title: Attorney-in-Fact Title: Vice President
Date: Date:
TOSCO CORPORATION
By:_______________________________________
Title: Vice President and General Counsel
Date:
Exhibit 21
SUBSIDIARIES OF TOSCO CORPORATION
AZL Resources, Inc.
Arizona-Florida Land & Cattle Company
AZCO Capital Corp. N.V.
AZCO Properties, Inc.
AZL Engineering, Inc.
Breckenridge Nordic Village Corporation
Bayway Refining Company
Tosco Pipeline Company
Diablo Service Corporation
Seminole Fertilizer Corporation
Bartow Cogen Corporation
Ridgewood Chemical Corporation
Seminole Cogen Corporation
International Energy Insurance Limited
The Loil Group Limited
The Oil Shale Corporation
Tosco (C-TI), Inc.
Tosco (C-TLP), Inc.
Tosco Corporation (Delaware)
Tosco International Finance N.V.
Tosco Refining Company, Inc.
Tosco Trading, Transportation and Supply, Inc.
Tosco (U.K.) Ltd.
Toscopetro Corporation
Western Hemisphere Corporation
Avon Marine Corp.
Riverhead Marine Corp.
Exhibit 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration
statements of Tosco Corporation on Form S-8 (File No. 33-39303
and File No. 33-51243) of our report dated February 4, 1994, on
our audits of the consolidated financial statements and the
financial statement schedules of Tosco Corporation as of
December 31, 1993 and 1992, and for the years ended December 31,
1993, 1992 and 1991, which report is included in this Annual
Report on Form 10-K.
COOPERS & LYBRAND
Oakland, California
March 16, 1994