EXHIBIT 10.2.1
AMENDMENT TO AREA LICENSE AGREEMENT
AND CONSENT TO ASSIGNMENT
This Amendment to Area License Agreement and Consent to Assignment
("Agreement") is made and entered into this 20th day of December, 1996, by and
between THE SOUTHLAND CORPORATION ("Licensor") and PERMIAN BASIN INVESTMENTS,
INC., d/b/a SOUTHWEST CONVENIENCE STORES, INC. ("SCS, Inc.").
BACKGROUND
A. Licensor and SCS, Inc., entered into an Area License Agreement
("License Agreement") dated June 2. 1993.
B. SCS, Inc. wishes to transfer and assign the License Agreement to
Southwest Convenience Stores, LLC ("Licensee") effective on or about
January 1, 1997 ("Effective Date").
C. The Licensee will be a limited liability company owned 65.6% by SCS,
Inc. and 34.4% by Fina Oil and Chemical Company ("Fina").
D. Licensor and SCS, Inc. wish to modify and amend the License Agreement
effective the Effective Date, with the Licensee then assuming the
License Agreement as amended.
E. On the terms set forth in this Agreement, Licensor will consent to the
assignment of the License Agreement, as amended, from SCS, Inc. to the
Licensee.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein and other good and valuable consideration, and intending to be legally
bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENT OF LICENSE AGREEMENT
1.1 On the Effective Date of this Agreement, Licensee hereunder shall
be deemed the Licensee under the License Agreement and the License Agreement
shall be amended by the addition of the following provisions under Section VI
(Licensee's Representations, Duties and Obligations):
"N. Licensee and Licensee's Members, Board of Managers and/or
employees ("Principals") shall not either during the term of this
License Agreement, or at any time thereafter, communicate, reproduce,
publish, disclose, divulge, use or authorize anyone else to
communicate, reproduce, publish, disclose, divulge, or use, for the
benefit of themselves (other than in connection with the operation of
the licensed business during the term hereof) or any other person,
partnership, association, corporation, including but not limited to
Fina Oil and Chemical Company, or other entity, any secret or
confidential information relating to the business, trade practices,
Trade Secrets, methods of operation, software, computer systems, sales,
promotions, marketing, technology, know-how or recipes of the Licensor,
the 7-Eleven System, or operation of the 7-Eleven Stores and
licensed business which may be communicated to Licensee or Licensee's
Principals in any way or of which Licensee or Licensee's Principals may
be appraised by virtue of Licensee's operation under the terms of this
License Agreement (all the "Confidential Information").
"O. Licensee and Licensee's Principals shall divulge the
Confidential Information only to such of Licensee's employees as must
have access to it in order to operate the licensed business. Any and
all information, knowledge, know-how, and techniques provided or made
available by Licensor shall be deemed to be a part of the Confidential
Information for purposes of this License Agreement, except (i)
information which Licensee or any of Licensee's Principals can
demonstrate came to their attention prior to disclosure thereof by
Licensor or which is already in the public domain; (ii) information
which, at or after the time of disclosure by Licensor to Licensee or
Licensee's Principals, lawfully had become or later becomes a part of
the public domain, through lawful publication or communication by
others, (iii) information which is independently developed by Licensee
or Licensee's Principals without the benefit of Confidential
Information.
"P. Any and all information, knowledge, know-how and
techniques used in or related to the 7-Eleven System that Licensor
communicates in writing or otherwise to Licensee including, but not
limited to the 7-Eleven System software, the contents of the Manuals,
plans, and specifications and other materials, marketing information
and strategies, site evaluation and selection techniques, merchandising
information or computer systems provided by Licensor shall be deemed to
be a part of the Confidential Information for purposes of this License
Agreement
"Q. Any and all information, trade secrets, knowledge,
know-how, techniques, and any materials used in or related to the
7-Eleven System which Licensor provides to Licensee in connection with
this License Agreement which Licensor designates as confidential shall
be deemed to be a part of the Confidential Information for purposes of
the License Agreement."
1.2 On the Effective Date of this Agreement the License Agreement shall
be amended by deleting the Exhibit "J" (West Texas Present Value Schedule for
Termination) and by substituting a new Exhibit "▇-▇", which is attached to and
made a part of this Agreement and the License Agreement. If the Termination Fee
called for by Exhibit "J-1" is to be paid, Licensee shall immediately pay such
fee to Licensor.
1.3 On the Effective Date of this Agreement, the License Agreement
shall be amended to provide that notices to Licensee, pursuant to Section XII
(Notices), shall be addressed as follows:
2
SOUTHWEST CONVENIENCE STORES, LLC
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
P. 0. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with Copies to:
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
FINA OIL AND CHEMICAL COMPANY
Attention: General Counsel
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
1.4 On the Effective Date of this Agreement the License Agreement shalt
be clarified to provide that references in Section XIII (Right of First Refusal)
to "all or any part of Licensee's business" shall mean the sale of one or more
of Licensee's Convenience Stores, or the sale of any other substantial portion
of its assets, or any voting or membership, equity or any other interest in the
Licensee.
1.5 On the Effective Date of this Agreement the License Agreement shall
be amended by the addition of a new Section XVII, as follows;
"ARTICLE XVII
SPECIAL TRANSFER CONDITIONS
"A. In the event Fina wishes to acquire Effective Control (as
defined in paragraph L below) of the Licensee, which acquisition Fina
and SCS, Inc. acknowledge and agree is subject to the Licensor's Right
of First Refusal and separately subject to the Licensor's right to
approve or reject the acquisition by Fina of Effective Control of the
Licensee, as set forth in Section VII of the License Agreement, Fina
may propose an interim management team (composed of non-competitors and
otherwise acceptable to Licensor) to be responsible for operation of
the Licensee. If that team is satisfactory to Licensor, in Licensor's
sole discretion, then after Fina is so advised in writing, Fina may
complete the acquisition of Effective Control of the Licensee for a
period of up to eighteen (18) months and allow the approved management
team to take control over and operate the Licensee for such period.
3
"B. During the eighteen (18) month period in which the
approved management team shall operate the Licensee, Fina may: (i)
propose to sell Effective Control of Licensee to an independent third
party; (ii) propose an ownership or management structure for the
Licensee by which Fina no longer retains Effective Control; or (iii)
propose arrangements by which Fina would be acceptable to Licensor as
the "Licensee" or otherwise retain Effective Control (collectively, the
"Fina Options").
"C. In the event Fina selects a proposed purchaser of the
Effective Control owned by Fina, it shall bring that entity to the
attention of the Licensor. Within a reasonable time after all
information necessary, in the Licensor's opinion, for the Licensor to
properly evaluate the proposed purchaser as the prospective owner of
Effective Control of the Licensee has been presented to the Licensor,
Licensor will, using its sole discretion, evaluate the proposed
purchaser and advise the Licensee, Fina and the proposed purchaser,
regarding whether Licensor will elect to exercise its Right of First
Refusal or, in the alternative, approve such purchase and the proposed
purchaser for ownership of Effective Control of the Licensee. The
information disclosed to the Licensor shall include all details about
the proposed sale of Effective Control of the Licensee.
"D. In the event the Licensor approves the proposed purchaser,
the consummation of the sale of Effective Control of the Licensee to
the prospective purchaser shall be consummated within six (6) months
after the approval is granted and shall be upon the same terms as
approved by the Licensor.
"E. In the event the proposed purchaser is not approved and no
substitute purchaser is approved by the Licensor within the eighteen
(18) month period herein provided for, if Fina elects not to seek an
approved purchaser upon taking Effective Control, or if the terms of
sale of Effective Control of the Licensee are different from those
shared with the Licensor and Fina fails to exercise any of the other
Fina Options in accordance with the terms and conditions hereof, then,
unless the Licensor elects to exercise its right of first refusal upon
the altered terms, the Licensor may, in its discretion, terminate this
License Agreement effective upon notice to the Licensee. If Licensor
elects to terminate the License Agreement, the Termination Fee provided
for by the new Exhibit "J-1" shall be immediately paid by Licensee to
Licensor.
"F. In the event Fina proposes to create an ownership or
management structure for the Licensee pursuant to which Fina would no
longer retain "Effective Control," it must do so within twelve (12)
months of the interim management team taking control of the Licensee.
"G. Upon being provided with sufficient information regarding
the proposed ownership or management structure, Southland will evaluate
the proposal and, in its sole discretion, determine whether to approve
it or not. If approved, the proposed ownership or management structure
must be fully implemented as approved within three (3) months of
approval by the Licensor.
4
"H. In the event the proposed ownership or management
structure is not implemented within the time frame allowed hereunder,
if an altered ownership or management structure is implemented, or if
Fina elects not to offer a different ownership or management structure
(after advising Licensor that it was going to do so), and Fina fails to
exercise any of the other Fina Options in accordance with the terms and
conditions hereof, Licensor may, in its discretion, terminate the
License Agreement effective upon notice to the Licensee. If Licensor
elects to terminate the License Agreement, the Termination Fee provided
for by new Exhibit "▇-▇" shall be immediately paid by Licensee to
Licensor.
"I. In the event Fina proposes other arrangements by which it
would request that Southland approve Fina as the entity with Effective
Control of the Licensee beyond the initial eighteen (18) month period
provided above, any such proposal must be made within twelve (12)
months of the interim management taking control of the Licensee. Within
a reasonable time after Fina provides Licensor with sufficient
information to evaluate the proposal whereby Fina would retain
Effective Control of Licensee and which Fina is requesting the Licensor
approve, Licensor will evaluate, in its sole discretion, and advise
Fina whether or not the proposal is acceptable to Licensor. If the
proposal is accepted by Licensor, it must be fully implemented as
represented within three (3) months of Licensor's approval.
"J. In the event the proposed arrangement is not accepted by
Licensor or no such arrangement is proposed by Fina, or if the proposal
is implemented but is different from that approved by the Licensor,
then Licensor may, in its discretion, terminate the License Agreement
effective upon written notice to Licensee. If Licensor elects to
terminate the License Agreement, the Termination Fee provided for by
new Exhibit "J-1" shall be immediately paid by Licensee to Licensor.
"K. Nothing herein obligates Licensor to approve any proposals
made by Licensee or Fina or waives any of Licensor's other rights
hereunder and nothing herein shall be interpreted as in any way
approving Fina as the "Licensee" or owner of Effective Control of the
Licensee.
"L. For purposes of this Agreement, "Effective Control" shall
mean, (i) the acquisition of more than 50% of the membership or any
other equity or ownership interests of the Licensee, or (ii) the
acquisition of more than 50% of the voting interest of the Licensee."
1.6 Except as expressly amended in this Agreement, the License
Agreement shall remain unchanged and in full force and effect subject to its
terms.
5
ARTICLE II
LIMITED WAIVER OF RIGHT OF FIRST REFUSAL
AND RIGHT OF APPROVAL OF ASSIGNMENT
2.1 Licensor hereby waives its right of first refusal, as outlined in
Section XIII of the License Agreement, to match the offer made by Fina to
purchase a 34.4% interest in Licensee, which transaction is contemplated by this
document.
2.2 Nothing herein shall be construed, either express or implied, as
providing Licensor's consent or waiver with respect to any other purchase of all
or any part of Licensee's business, including but not limited to any other
purchase offer made by Fina.
2.3 Each certificate representing an ownership interest in Licensee
shall have conspicuously endorsed upon its face a statement in a form
satisfactory to Licensor that it is held subject to, and that further assignment
or transfer thereof is subject to, all restrictions imposed upon assignments by
the License Agreement.
2.4 Prior to the assignment or issuance of any interest in Licensee to
a proposed new Member of Licensee, Licensee's Principals shall cause such
proposed new Member to enter into an agreement with Licensor, agreeing to be
bound by the covenants, representations and agreements of Licensee's Principals,
as set forth in this Agreement, including, without limitation, an obligation to
be bound by a right of first refusal similar to the Right of First Refusal and
the restriction on assignment contained in Section VII of the License Agreement.
ARTICLE III
CONFIDENTIALITY AND NON-USE AGREEMENT
4.1 Attached to and made a part of this Agreement as Exhibit 3.1 is a
Confidentiality and Non-Use Agreement executed by and among Licensor, Fina, and
SCS, Inc., whereby Fina and SCS, Inc. have agreed to certain provisions with
respect to the confidentiality and non-use of Licensor's Trade Secrets and other
Confidential Information.
ARTICLE IV
PAYMENT OF PURCHASE MONEY NOTE
5.1 On or prior to the Effective Date, SCS, Inc. shall pay in full its
Purchase Money Note to Licensor dated June 2, 1993, in the original principal
amount of $[***].
----------
[***] Text omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
6
ARTICLE V
CONSENT TO ASSIGNMENT OF LICENSE AGREEMENT
6.1 Subject to the provisions of this Agreement and the assumption on
the Effective Date by the Licensee of all of the rights and obligations of SCS,
Inc. under the License Agreement, Licensor hereby consents to the assignment of
the License Agreement from SCS, Inc. to the Licensee.
6.2 Nothing herein shall be construed, either express or implied, as
providing Licensor's consent to any further or other assignment in whole or in
part of Licensee's business, as defined in Section 1.4 of this Agreement.
ARTICLE VI
CONSENT TO ASSIGNMENT OF PURCHASE AND SALE AGREEMENT
7.1 Attached to and made a part of this Agreement is a Consent to
Assignment of Purchase and Sale Agreement executed by and among Licensor, The
Southland Employees' Trust, and SCS, Inc., whereby Licensor and The Southland
Employees' Trust have consented to the assignment from SCS, Inc. to the Licensee
of the Purchase and Sale Agreement dated April 9, 1993, by and among Licensor,
The Southland Employees' Trust, and SCS, Inc.
ARTICLE VII
COMPLETION OF TRANSACTION
8.1 In the event for any reason SCS, Inc. fails to complete the
transaction involving the assignment of the License Agreement to Licensee by
March 1, 1997, this Agreement shall be null and void.
7
IN WITNESS WHEREOF, the parties have executed this Agreement of the
date stated above.
THE SOUTHLAND CORPORATION
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. (Illegible) Title: Sr. Vice President
----------------------------- ----------------------------------
Assistant Secretary
PERMIAN BASIN INVESTMENTS, INC., D/B/A
SOUTHWEST CONVENIENCE STORES, INC.
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------- -------------------------------------
Assistant Secretary Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: President
----------------------------------
8
Each of the undersigned acknowledges and agrees as follows:
(1) Each has read the terms and conditions of this Agreement and the
License Agreement, and each acknowledges that the undertakings by Licensee's
principals under this Agreement and as stated below are made and given in
partial consideration of, and as a condition to, the Licensor's consent to the
assignment of the License Agreement;
(2) Each is included in the term "Principals" as described in Article I
of this Agreement; and
(3) Each individually makes all of the covenants, representations and
agreements of Licensee's Principals set forth in this Agreement and any
attachments or amendments thereto and is obligated to perform thereunder for so
long as it, he or she qualifies as such and thereafter to the extent expressly
provided by the terms of this Agreement. Nothing herein shall be construed as
granting to any of Licensee's Principals any of the rights or privileges of
Licensee set forth in the License Agreement or in this Agreement.
LICENSEE'S PRINCIPALS:
FINA OIL AND CHEMICAL COMPANY
ATTEST: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
/s/ (Illegible) Title: Vice President
----------------------------- ----------------------------------
Assistant Secretary
PERMIAN BASIN INVESTMENTS, INC., D/B/A
SOUTHWEST CONVENIENCE STORES, INC.
ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ Title: President
----------------------------- ----------------------------------
Assistant Secretary
9
Southwest Convenience Stores, LLC hereby accepts the above assignment
and assumes all of the rights and obligations of SCS, Inc. under the License
Agreement, as hereby amended.
SOUTHWEST CONVENIENCE STORES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: President
-----------------------------------
Date: 12-20-96
------------------------------------
10
