Exhibit 10.6


 


SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTED
BECAUSE  CONFIDENTIAL TREATMENT FOR THOSE
TERMS HAS BEEN  REQUESTED. THE
REDACTED MATERIAL HAS BEEN SEPARATELY FILED  WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE
TERMS  HAVE BEEN MARKED AT THE
APPROPRIATE PLACE WITH TWO  ASTERISKS
(**).


 


BRAND FEE AGREEMENT


 


This BRAND FEE AGREEMENT (the “Agreement”) is made and entered into by
and between ExxonMobil Oil Corporation, having an office and place of business
at 3225 Gallows Road, Fairfax, Virginia 22037, hereinafter called ExxonMobil,
and  Global Companies LLC, having an office
at 800 South Street, Suite 200, Waltham, Massachusetts, 02453, hereinafter
called BFA Holder.


 


WHEREAS, BFA Holder acknowledges that ExxonMobil has established the
following core values (“Core Values”) to build and maintain a lasting
relationship with its customers, the motoring public:


 


(1)           To deliver quality products that
customers can trust.


(2)           To employ friendly, helpful people.


(3)           To provide speedy, reliable service.


(4)           To provide clean and attractive
retail facilities.


(5)           To be a responsible,
environmentally-conscious neighbor.


 


WHEREAS, BFA Holder does or in the future will either own, operate or
supply certain retail motor fuel outlets at those locations identified on Exhibit 1
hereto and may, subject to ExxonMobil’s consent, own, operate or supply certain
retail motor fuel outlets in those certain jurisdictions set out on Exhibit 2
(hereinafter referred to as the “Designated Geography(ies)”);


 


WHEREAS, BFA Holder wishes to sell Exxon and/or Mobil-branded motor
fuel to or through these outlets and to receive certain services, and be
eligible to participate in certain programs, related to the Exxon and Mobil
brands, but currently does not wish to purchase the motor fuel product from
ExxonMobil or its Affiliates;


 


WHEREAS, BFA Holder wishes to undertake full responsibility for the
sourcing of motor fuel product at the retail motor fuel outlets that are
subject to this Agreement;


 


WHEREAS, ExxonMobil is willing to furnish BFA Holder with certain
services and programs, as more particularly defined herein, associated with the
Exxon and Mobil brands;


 


WHEREAS, ExxonMobil is willing to allow BFA Holder to utilize the
Proprietary Marks in accordance and subject to the terms of this Agreement in
connection with the retail identification of the retail motor fuel outlets that
are subject to this Agreement and to allow motor fuel sold from or through
these outlets to be branded as Exxon or Mobil-branded motor fuel;


 


NOW THEREFORE, ExxonMobil and BFA Holder agree as follows:


 


1.                                      PERIOD.


 


Unless sooner terminated as provided elsewhere herein, this Agreement
shall be in full force and effect for the period of fifteen (15) years
beginning on September 8, 2010 (“Effective Date”), and ending on September 7,
2025 (“Expiration Date”) (such period, the “Term”).  By written notice furnished to BFA Holder,
ExxonMobil may, at its sole discretion, grant temporary extensions of the Term
for periods not exceeding one hundred and eighty (180) days for each
extension.  An extension shall not be
construed as renewal of this Agreement or of the Franchise Relationship.


 


1

















 


2.                                      GRANT.


 


By this Agreement, ExxonMobil and BFA Holder establish a “Franchise” and
a “Franchise Relationship” as defined by the Petroleum Marketing Practices Act,
15 U.S.C. Sections 2801-2806 (the “PMPA”). 
Subject to the terms and conditions of this Agreement:


 


(a)                                  With respect to
the Proprietary Marks (as defined below) to be used in connection with the
retail sale of Exxon or Mobil-branded motor fuel (including both gasoline and
diesel), as the case may be (“Products”), ExxonMobil grants BFA Holder the
limited and non-exclusive right to:


 


(1)                                  Use the Mobil Proprietary Marks (as defined below) at (i) those
Mobil-branded retail outlets identified as CORS locations on Exhibit 1
hereto and (ii) such Mobil-branded retail outlets as may be approved under
Section 2(e) and operated by BFA Holder (or a third party operator
with experience in the operation of similar service station properties) (“Operated
Mobil Branded Outlets”);


 


(2)                                  Use the Exxon Proprietary Marks (as defined below) at such Exxon-branded
retail outlets as may be approved under Section 2(e) and operated by
BFA Holder (or a third party operator with experience in the operation of
similar service station properties) (“Operated Exxon Branded Outlets”);


 


(3)                                  Grant the use of the Mobil Proprietary Marks to BFA Holder’s franchised
lessees or franchised independent dealers (collectively, “Mobil Franchise
Dealers”) at (i) those Mobil-branded retail outlets identified as CODO or
DOSS locations on Exhibit 1 hereto and (ii) such Mobil-branded retail
outlets as may be approved under Section 2(e) and operated by a
franchised lessee or franchised independent dealer (“Franchised Mobil Branded
Outlets”); and


 


(4)                                  Grant the use of the Exxon Proprietary Marks to BFA Holder’s franchised
lessees or franchised independent dealers (collectively, “Exxon Franchise
Dealers”) at such Exxon-branded retail outlets as may be approved under Section 2(e) and
operated by a franchised lessee or franchised independent dealer (“Franchised
Exxon Branded Outlets”).


 


In
this Agreement, (i) the Operated Mobil Branded Outlets and Operated Exxon
Branded Outlets may be collectively referred to as the “Operated Branded
Outlets”, (ii) the Franchised Mobil Branded Outlets and Franchised Exxon
Branded Outlets may be collectively referred to as the “Franchised Branded
Outlets”, (iii) the Operated Branded Outlets and the Franchised Branded
Outlets, whether they be BFA Holder Direct Served Outlets or BFA Holder
Sub-Jobber Outlets may be collectively referred to as the “BFA Holder Branded
Outlets”, and (iv) the Mobil Franchise Dealers and the Exxon Franchise
Dealers may be collectively referred to as the “Franchise Dealers”.


 


For
purposes of this Agreement, BFA Holder Branded Outlets can be supplied in one
of two methods, (i) BFA Holder’s Direct Served Business, which are those
BFA Holder Branded Outlets that are supplied Product for retail sale through an
agreement directly with BFA Holder or any of its Affiliates (the “Direct Served
Outlets”), or (ii) BFA Holder’s Sub-Jobber Business, which are those BFA
Holder Branded Outlets that are supplied Product for retail sale through an agreement
between BFA Holder or one of its Affiliates and any branded wholesaler that is
not an Affiliate of BFA Holder (the “Sub-Jobber Outlets”).  Note that for purposes of this Agreement, the
term “branded wholesaler(s)” shall include “distributor(s)”, as may be
applicable.


 


(b)                                 Under this
Agreement, “Mobil Proprietary Marks” shall mean (i) only those trademarks
identified on Exhibits 13-A and 13-B hereto and (ii) related trade
dress.  “Exxon Proprietary Marks” shall
mean (i) only those trademarks identified on Exhibits 14-A and 14-B hereto
and (ii) related trade 


 


2

















 


dress.  “Proprietary
Marks” shall mean the Mobil Proprietary Marks and the Exxon Proprietary Marks,
collectively or separately, as appropriate in context.  The grants set forth in Section 2(a) and
Section 2(d)(1) by ExxonMobil to BFA Holder for BFA Holder’s use of
the Proprietary Marks, as to each Proprietary Mark, shall be limited to only
the specific corresponding goods and services listed on Exhibits 13-A and 14-A
(as to the retail motor fuels Business only), and 13-B and 14-B (as to the
Related Businesses only) (the “Authorized Uses”).  For the avoidance of doubt, BFA Holder hereby
agrees and acknowledges that the Proprietary Marks may be used only during the
Term and only at the BFA Holder Branded Outlets and that nothing set forth in
this Agreement shall be interpreted to grant BFA Holder any rights in or to
such Proprietary Marks for any offsite use unless expressly authorized by
ExxonMobil in writing.  BFA Holder
further hereby acknowledges and agrees that notwithstanding anything to the
contrary set forth herein, it shall not be permitted to use, or grant the use
of, any of the Exxon Proprietary Marks prior to June 1, 2011.  In addition, specifically excluded from any
Authorized Use is BFA Holder’s use of any Proprietary Mark on or in connection
with any auto repair services or any trucks, cars or other rolling stock of any
nature.  BFA Holder shall not have any
authority under this Agreement to use any trademark or other intellectual
property of ExxonMobil or its Affiliates not specifically identified on Exhibit 13-A,
13-B, 14-A or 14-B or any taglines or reward programs of ExxonMobil or its
Affiliates.  BFA Holder shall be
permitted only to use or grant the use of either the Mobil Proprietary Marks,
or the Exxon Proprietary Marks, at any one retail outlet and shall not use or
permit the use of both Mobil Proprietary Marks and Exxon Proprietary Marks at
any retail outlet.  As used in this Agreement,
the term “Affiliate” as it relates to ExxonMobil means,  (1) ExxonMobil Oil Corporation or its
successors-in-interest, (2) any parent corporation, partnership, or other
entity of the ExxonMobil Oil Corporation or its successors-in-interest which
now or hereafter owns or controls, directly or indirectly through one or more
intermediaries, fifty percent or more of the ownership interest having the
right to vote for or appoint directors of ExxonMobil Oil Corporation or its
successors-in-interest (“Parent Company”), (3) any corporation,
partnership, or other entity, regardless of where situated, at least fifty
percent of whose ownership interest having the right to vote for or appoint
directors is now or hereafter owned or controlled, directly or indirectly
through one or more intermediaries, by ExxonMobil Oil Corporation or its
successors-in-interest or by its Parent Company.  As used in this Agreement, the term “Affiliate”
as it relates to BFA Holder means, any person directly or indirectly
controlling, controlled by, or under common control with BFA Holder, including
any other person directly or indirectly controlling, controlled by, or under
common control with such person.  For
purposes of this definition, the term “control” (including the terms “controlled
by” and “under common control with”) means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of any person, whether through the ownership of voting securities or
by contract or otherwise.  For the
purposes of this Agreement, Alliance Energy LLC, a Massachusetts limited
liability company (“Alliance”) and AE Holdings Corp., a Massachusetts
corporation and the managing member of Alliance shall not be considered
Affiliates of BFA Holder.


 


(c)                                  BFA Holder will
arrange for and be solely responsible for procuring an adequate supply of
unbranded motor fuel (“Base Product”) that meets the requirements of Section 5
of this Agreement.  After Base Product
has been additized as provided in Section 5 hereof, it may be distributed
by BFA Holder as Product to the BFA Holder Branded Outlets subject to all terms
and conditions of this Agreement.


 


(d)                                  (1)                                ExxonMobil
acknowledges that BFA Holder may wish to operate additional businesses of the
type described in the Authorized Uses set forth on Exhibit 13-B or 14-B
(“Related Businesses”) during the Term utilizing Proprietary Marks at any or
all of the BFA Holder Branded Outlets. Subject to the specific corresponding
Authorized Uses(s) listed on Exhibit 13-B or 14-B, and other terms
and conditions of this Agreement, ExxonMobil grants BFA Holder the right to
utilize the Proprietary Marks set forth on Exhibit 13-B or 14-B in
connection with Related Businesses and to grant to a Franchise Dealer the right
to use such Proprietary Marks in connection with Related Businesses solely to
the extent and in the manner specified by ExxonMobil from time to time. For the
avoidance of doubt, ExxonMobil shall have the right to change, modify, amend,
add or remove, in its


 


3

















 


sole discretion, the Related Businesses permitted
pursuant to this Section 2(d)(1) and the Authorized Use(s) set
forth on Exhibit 13-B or 14-B.


 


(2)                                  BFA Holder acknowledges, and shall require its Franchise Dealers to
acknowledge, that the operation of a Related Business using any Proprietary
Mark impacts customers’ perceptions and acceptance of the Products and
Proprietary Marks.  Accordingly, BFA
Holder may operate, or authorize a Franchise Dealer to operate, a Related
Business utilizing Proprietary Marks at a BFA Holder Branded Outlet only in
compliance with ExxonMobil’s requirements as set out from time to time by
ExxonMobil and at all times in compliance with this Agreement.  If BFA Holder or any Franchise Dealer fails
to comply with ExxonMobil’s requirements for such a Related Business at any BFA
Holder Branded Outlet, without limiting ExxonMobil’s other rights or remedies
under applicable laws or under this Agreement or any related or supplemental
agreement, including termination or non-renewal of this Agreement and the
Franchise Relationship, ExxonMobil may withdraw its approval for the use of any
such Proprietary Mark for that Related Business.


 


(3)                                  During the Term, BFA Holder shall operate and shall cause its Franchise
Dealers to operate any Related Business utilizing any Proprietary Mark, as
approved under Section 2(e), in compliance with this Agreement and shall
not operate, and shall cause its Franchise Dealers not to operate, any other
businesses or activities utilizing Proprietary Marks at any BFA Holder Branded
Outlet unless agreed in writing by the parties hereto.  During the Term, and except as expressly
provided in this Agreement, BFA Holder (or any of its Franchise Dealers) may
change, delete or add a Related Business at a BFA Holder Branded Outlet only
with the prior written consent of ExxonMobil. 
Nothing contained in this Section 2 may be construed as limiting or
preventing ExxonMobil from changing, deleting, adding or substituting any
Proprietary Mark used in connection with a Related Business.


 


(4)                                  The motor fuels business, under which BFA Holder distributes the Products
hereunder for retail sale at the BFA Holder Branded Outlets, the retail sales
of motor fuels at the BFA Holder Branded Outlets and the Related Businesses are
herein collectively referred to as the “Businesses.”


 


(e)                                   (1)                                BFA Holder may
use or operate at an Operated Branded Outlet, or grant and allow the use or
operation at a Franchised Branded Outlet of any Businesses or exercise any
other rights under Sections 2(a) and (d), only if:


 


(i)                                     ExxonMobil has expressly approved the Exxon or Mobil-branding, as the
case may be, of that retail outlet and the operation of the Businesses at that
retail outlet; and


 


(ii)                                  ExxonMobil has not:


 


(A)                              Debranded that outlet; or


 


(B)                                Withdrawn ExxonMobil’s approval for the
operation of any Business in question at that retail outlet.


 


For the purposes of Section 2(e)(1)(i) above, only those
retail outlets set out on Exhibit 1 are expressly approved for Mobil-branding.  In particular, BFA Holder acknowledges that,
absent the express approval of ExxonMobil or assignment by ExxonMobil in
accordance with the terms of this Agreement, no retail outlet or other
operation that is Mobil or Exxon-branded and branded wholesaler-served as of
the Effective Date is subject to operation under the terms of this
Agreement.  Approval of any outlets in 


 


4

















 


addition to those set out on Exhibit 1 will be on a site by site
basis and shall be memorialized by a trademark authorization letter in a form
to be specified by ExxonMobil from time to time.  Notwithstanding the previous sentence, any
Exxon or Mobil branded retail outlet to be added under this Agreement that is
approved at that time for Exxon or Mobil-branding shall not require re-approval
to be added under this Agreement; provided, however, that ExxonMobil shall be
entitled to review the Exxon or Mobil branding of such outlet to ensure
compliance with Section 2(g) hereof.


 


(2)                                  In its sole discretion, ExxonMobil may approve or not approve the
branding of any outlet or the use or operation of any Businesses proposed by
BFA Holder or any Franchise Dealer. 
ExxonMobil is not obligated to furnish a reason for withholding
approval.  ExxonMobil’s furnishing of a
reason does not in any way limit its rights to withhold for any reason any
approval of that or any future branding proposal.  BFA Holder shall comply, and cause its
Franchise Dealers to comply, with any requirements and conditions imposed by
ExxonMobil in giving its approval under this Section.


 


(3)                                  By written notice to BFA Holder, ExxonMobil may withdraw its approval to:


 


(i)                                     Brand any BFA Holder Branded Outlet (“debrand”); or


 


(ii)                                  Use or operate any Business (including, for the avoidance of doubt, any
Related Business) at any outlet


 


if, in ExxonMobil’s sole judgment:


 


(a)                                  That outlet (or
any Businesses thereat) fails to portray the image and standards ExxonMobil
expects from its branded retail outlets;


 


(b)                                 BFA Holder, or
any Franchise Dealer, is in default of any material obligation, condition,
representation or warranty under this Agreement or any related or supplemental
agreement with respect to that retail outlet (or any Business); or


 


(c)                                  Any actions by
BFA Holder, any Franchise Dealer, any Affiliate of BFA Holder or any third
party management company in connection with its operations on behalf of BFA
Holder, whether in violation of its obligations under this Agreement or
otherwise, cause harm to the value or reputation of the Proprietary Marks.


 


ExxonMobil shall provide prior written notice of its intention to
withdraw its approval pursuant to Section 2(e)(3)(a) or (b) and
BFA Holder shall have a time period, which shall in no event exceed thirty (30)
days, in which to take corrective action with respect to the BFA Holder Branded
Outlet at issue.  In the event that BFA
Holder has not satisfied ExxonMobil as to resolution of the issue within such
thirty (30) day period, ExxonMobil may withdraw its approval.


 


(4)                                  If ExxonMobil debrands any BFA Holder Branded Outlet, or withdraws its
approval to use or operate any Businesses at any BFA Holder Branded Outlet, BFA
Holder shall comply, and cause any Franchise Dealer at the retail outlet to
comply, with the provisions of Section 3 with respect to the retail outlet
in question.  The debranding of one or
more of the BFA Holder Branded Outlets does not constitute a termination or
non-renewal of this Agreement.


 


(5)                                  BFA Holder shall not permit and shall ensure that its Franchise Dealers
do not permit the following activities or types of business to occur at any BFA
Holder Branded Outlet:


 


5

















 


(i)                                     The sale or use of illegal drugs or drug paraphernalia or other illegal
substances or activities,


 


(ii)                                  The sale of any pornographic material or other material that ExxonMobil
in its sole judgment determines may be offensive to the general public
(examples include but are not limited to Playboy, Hustler, and Penthouse
magazines),


 


(iii)                               Adult businesses (examples include but are not limited to massage
parlors, strip clubs, and video stores),


 


(iv)                              Bars or establishments that allow for any consumption of intoxicating
beverages or any sales or consumption of intoxicating beverages in violation of
applicable federal, state, county or local laws, statutes, ordinances, codes,
regulations, rules, orders or permits, or


 


(v)                                 The illegal sale of any tobacco products,
including without limitation, sales in violation of any federal, state, county or local laws, statutes, ordinances, codes,
regulations, rules, orders, or permits
relating to youth access to tobacco products. BFA Holder shall promptly advise
ExxonMobil, and shall ensure that Franchise Dealers promptly advise BFA Holder,
of any citations or notifications of violations received at any BFA Holder
Branded Outlet from any regulatory authority resulting from any such tobacco
sales and of the resolution of any such citations and notifications.  BFA Holder agrees to comply with the
requirements set forth in Exhibit 8.


 


(6)                                  The terms and conditions of this Agreement and the Franchise Relationship
are exclusively between ExxonMobil and BFA Holder.  Nothing in this Agreement may be construed as
creating any Franchise or Franchise Relationship with any other person,
including without limitation, any Franchise Dealer, employee or contractor of
BFA Holder.


 


(f)                                    This Agreement
does not give BFA Holder an exclusive right in any market or geographic area to
sell Products or conduct any Related Business. 
BFA Holder acknowledges that ExxonMobil and its Affiliates may directly
or indirectly compete with BFA Holder by using, or, subject to Section 2(g) authorizing
the use of any trademark, trade names and trade dress owned by ExxonMobil (or
any of its subsidiaries or Affiliates) from time to time including, without
limitation, the Proprietary Marks, including in close proximity to, and
notwithstanding any commercial impact on, any BFA Holder Branded Outlet.


 


(g)                                 In order to
protect the integrity of the Exxon and Mobil brands in the Designated
Geographies,  notwithstanding anything to
the contrary herein, no retail outlet may become a BFA Holder Direct Served
Outlet or Sub-Jobber Outlet pursuant to the terms of this Agreement if such site
is located within two (2) miles of any then-existing Exxon or Mobil
branded retail outlet, which then-existing Exxon or Mobil branded retail outlet
is not also a BFA Holder Direct Served Outlet or Sub-Jobber Outlet.  The distance between any two retail outlets
shall be determined by the most geographically direct street route between the
closest identification sign located at each retail outlet.


 


The
foregoing provision shall not restrict the operation of any retail outlet that
may be set forth on Exhibit 16 hereto from time to time.  Exhibit 16 shall set forth all Exxon or
Mobil branded retail outlets in the Designated Geographies existing as of the
Effective Date.  Any new Exxon or Mobil
branded retail outlet that is added to an existing branded wholesaler agreement
between ExxonMobil and any of its existing branded wholesalers in the
Designated Geographies shall be 


 


6

















 


added
to Exhibit 16 by ExxonMobil.  Any
Exxon or Mobil branded retail outlet that is debranded shall be deleted from
Exhibit 16 by ExxonMobil.


 


3.                                      TRADEMARKS


 


(a)                                  BFA Holder is
permitted to display the Proprietary Marks solely to designate the brand of the
Products or other approved Businesses being operated at a BFA Holder Branded
Outlet (which uses shall be limited to only the specific corresponding
Authorized Use(s) as to each Proprietary Mark).  BFA Holder agrees that no Product will be
sold under any of the Proprietary Marks unless it meets the product quality
specifications set forth in this Agreement and is additized as specified in
this Agreement nor shall any Business be operated unless it meets the quality
specification and other standards (including any brand identity standards or
retail image standards) existing as of the Effective Date or modified or
established by ExxonMobil from time to time, as such standards and
specifications may be amended from time to time after the Effective Date.  If there shall be posted, mounted, or
otherwise displayed on or in connection with any BFA Holder Branded Outlet any
sign, poster, placard, plate, device or form of advertising matter whether or
not received from ExxonMobil, consisting in whole or in part of the name of
ExxonMobil or any of the Proprietary Marks, BFA Holder agrees at all times to
display same, or cause the Franchise Dealers to display same, properly and not
to diminish, dilute, denigrate, or otherwise adversely affect same.  BFA Holder further agrees to take no action
that will diminish or dilute the value of any Proprietary Mark.


 


(b)                                 Immediately
upon termination (whether in full or as to any individual outlet) or expiration
of this Agreement, or prior thereto upon demand by ExxonMobil, BFA Holder shall
discontinue all uses of the Proprietary Marks, including the posting, mounting
or display of any Proprietary Mark and all uses of Proprietary Marks in
connection with business cards, advertisements and letterhead/stationary, and
shall cause its Franchise Dealers to do the same.  If BFA Holder or any Franchise Dealer ceases
to do business at any BFA Holder Branded Outlet, BFA Holder shall, and shall
cause its Franchise Dealer to, discontinue the posting, mounting or display of
any Proprietary Marks immediately upon BFA Holder or its Franchise Dealer(s),
as the case may be, ceasing to sell the Products or operate the Business,
including, without limitation, in the event that the BFA Holder Branded Outlet
in question is debranded by ExxonMobil under Section 2(e) or in any
event upon demand by ExxonMobil.  BFA
Holder acknowledges ExxonMobil’s self-help rights set forth in this Agreement,
including the rights of entry described in Sections 26(e) and 35, and
agrees that BFA Holder shall be solely responsible for all fees, cost and
expenses incurred by ExxonMobil or its Affiliates in exercising any such
rights.


 


(c)                                  BFA Holder
agrees to notify ExxonMobil or its designee of any apparent or threatened
infringement, dilution or other misuse (“Misuse”) of any Proprietary Mark
promptly after becoming aware of such Misuse. 
ExxonMobil shall have the sole right, in its sole discretion, to take
any action, legal or otherwise, against such Misuse, and notwithstanding any
other provisions in this Agreement, BFA Holder agrees to provide ExxonMobil
with any assistance which, in the opinion or judgment of ExxonMobil, is
necessary to protect ExxonMobil’s right, title and interest in and to the
Proprietary Marks.  ExxonMobil shall be
entitled in such event to retain all monetary recovery from any misusing third
party by way of judgment, settlement or otherwise.  BFA Holder shall have no right to, and hereby
agrees that it will not (except as requested by ExxonMobil), take any action,
with respect to any apparent or threatened Misuse of any Proprietary Mark.  BFA Holder shall have no recourse against
ExxonMobil, ExxonMobil’s agents, officers, directors, and employees or third
parties under their control in the event ExxonMobil chooses not to act against
any apparent or threatened Misuse of any of the Proprietary Marks or if any
third party challenges the right of ExxonMobil or BFA Holder to use any of the
Proprietary Marks.


 


(d)                                 BFA Holder
shall not, and shall cause its Franchise Dealers not to, sell non-Exxon or
Mobil-branded motor fuels under any Proprietary Mark, including without
limitation, any Exxon or Mobil-identified canopy or at any fueling island where
BFA Holder or a Franchise Dealer is selling Products. As used in this Section, “non-Exxon
or Mobil-branded motor fuels” shall not be construed to apply to gasohol or
other synthetic motor fuels of similar usability, to the extent 


 


7

















 


provided for in the Gasohol Competition Act of 1980,
Pub. L.96-493 or renewable fuels as defined in Section 2807 of the
Petroleum Marketing Practices Act; provided however, that BFA Holder and its
Franchise Dealers shall label such product so as to ensure that consumers are
not confused that such product is an Exxon or Mobil-branded motor fuel.


 


(e)                                  Without
affecting BFA Holder’s obligations under Section 3(d), if BFA Holder or
any Franchise Dealer offers non-Exxon or Mobil-branded motor fuels at a BFA
Holder Branded Outlet, BFA Holder agrees to protect, and cause its Franchise
Dealer(s) in question to protect, the identity of the Products and the
Proprietary Marks by all reasonable methods, which would prevent customer confusion
or misinformation. BFA Holder agrees to conform, and cause its Franchise
Dealers to conform, to ExxonMobil’s de-branding requirements as outlined in
Exhibits 9A and 9B, as same may be revised from time to time, including but not
limited to posting of ExxonMobil approved signs which clearly distinguish the
Products from non-Exxon or Mobil-branded motor fuels, disclaiming any product
liability of ExxonMobil for damage resulting from use of non-Exxon or
Mobil-branded motor fuels, and removing or covering any signs which may
mislead, confuse, or misinform any customers or reduce their goodwill toward
any Proprietary Mark. In addition, BFA Holder agrees to comply, and cause its
Franchise Dealers to comply, with any additional steps beyond the ExxonMobil de-branding
requirements set forth in any applicable law, ordinance or regulation regarding
the labeling of petroleum products.


 


(f)                                    In furtherance
of its obligations as set forth in this Section, BFA Holder agrees that it will
for itself, and as to any of its Franchise Dealers, require of such Franchise
Dealers that they will, while identifying the source of the Products sold at
any BFA Holder Branded Outlet, comply with the provisions of this Section. Such
assistance includes, but is not limited to, the authorization to ExxonMobil to
commence legal proceedings in BFA Holder’s name, and at BFA Holder’s expense,
for the purposes of enforcing BFA Holder’s obligations in this Section.


 


(g)                                 BFA Holder
shall have neither the right to use or display at marinas, nor the right to
authorize or permit the use or display at marinas by Franchise Dealers of, any
Proprietary Mark and shall not sell, and shall cause its Franchise Dealers not
to sell, Products at marinas.


 


(h)                                 To permit
ExxonMobil to carry out its rights to protect its Proprietary Marks from
diminution, dilution, or destruction by misuse or failure by those to whom
permission to display them has been granted under this Agreement, BFA Holder
agrees that upon request by ExxonMobil it will provide ExxonMobil with a list
of the names and addresses of Franchise Dealers to whom BFA Holder has provided
any Proprietary Mark and where such BFA Holder Branded Outlets are displaying
such Proprietary Marks.


 


(i)                                     If BFA Holder,
for whatever reason, ceases to display or authorize the display of Proprietary
Marks at any BFA Holder Branded Outlet, then BFA Holder will notify ExxonMobil
in writing within thirty (30) days of that event.


 


(j)                                     Except as may
be expressly permitted by ExxonMobil, BFA Holder shall not, and shall cause its
Franchise Dealers not to, use the Proprietary Marks as part of BFA Holder’s or
any Franchise Dealer’s corporate or other name or as part of or in conjunction
with any domain name.


 


(k)                                  BFA Holder
shall, and shall cause its Franchise Dealers to, immediately stop using the
Proprietary Marks relating to any Business at any BFA Holder Branded Outlet if:


 


(1)                                  this Agreement is terminated or the Term expires and is not renewed or
extended; or


 


(2)                                  ExxonMobil withdraws its approval to use or operate that Business at that
outlet under Section 2(e); or


 


(3)                                  BFA Holder or its Franchise Dealer(s) stops operating that Business
at that outlet;


 


8

















 


and, in any such event, to
follow any de-branding requirements that may then be applicable.


 


(l)                                     BFA Holder’s
use of any of the Proprietary Marks in conjunction with any uniforms, business
cards or business stationary at all times shall be subject to and in accordance
with the terms of this Agreement and all standards set forth by ExxonMobil or
its Affiliates, as such standards may be amended by ExxonMobil or its
Affiliates, in their sole discretion, from time to time.  All uniforms used in connection with the
Businesses bearing any of the Proprietary Marks shall be purchased solely and
exclusively from an ExxonMobil approved vendor.


 


(m)                               BFA Holder
acknowledges that ExxonMobil (or Exxon Mobil Corporation or any of its
Affiliates as the case may be) is the exclusive owner of the Proprietary Marks,
and no ExxonMobil act, or failure to act, will give BFA Holder or any Franchise
Dealer any ownership interest or right in any of the Proprietary Marks. All
goodwill resulting from the use of the Proprietary Marks by BFA Holder or its
Franchise Dealers shall inure to the benefit, and is the property, of
ExxonMobil (or its Affiliates as the case may be). ExxonMobil may, at any time
or from time to time, change or substitute any Proprietary Marks used in
connection with the Products or any Business. In case of any change or
substitution, BFA Holder shall immediately use, and cause its Franchise Dealers
to immediately use, the Proprietary Marks as changed.


 


(n)                                 BFA Holder
hereby acknowledges that failure on the part of BFA Holder or its Franchise
Dealer(s) to use any Proprietary Mark in accordance with the provisions of
this Agreement will cause irreparable injury to ExxonMobil and that any court
of competent jurisdiction may, at the request of ExxonMobil, enforce the
provisions of this Agreement by the entry of a temporary or permanent injunction
against BFA Holder and in favor of ExxonMobil. 
BFA Holder agrees not to contest the appropriateness of injunctive
relief but may contest whether it has failed to use the Proprietary Marks in
accordance with the provisions of this Agreement.  BFA Holder will incorporate in its agreements
with each Franchise Dealer the undertakings and obligations provided in this
Agreement (including this Section 3). 
BFA Holder agrees to immediately notify ExxonMobil of any Franchise
Dealer failing to comply with any such undertaking or obligation and agrees to
assist ExxonMobil in its enforcement thereof.


 


(o)                                 In order to
foster the continued public acceptance of the Proprietary Marks and to protect
the brand reputation of the Products which are the subject of this Agreement,
BFA Holder will use best efforts to promptly inform ExxonMobil of any event or
condition which will significantly impact the operation of any BFA Holder
Branded Outlet or which has resulted in or may result in significant media
exposure related to any BFA Holder Branded Outlets.


 


4.                                      QUALITY, GRADE, SPECIFICATION, OR NAME OF PRODUCT; QUALITY ASSURANCE
PROCEDURES.


 


(a)                                  ExxonMobil
shall have the right, at its sole discretion and at any time during the Term,
to change, alter, amend or eliminate any of the grades or brands of Products or
any Proprietary Marks covered by this Agreement.  ExxonMobil may also, in its sole discretion
and from time to time, change or alter the quality or specification of any of
the Products covered by this Agreement. 
In the event that a certain grade, quality or specification of motor
fuels is offered in one of the states within the Designated Geographies by more
than thirty-five percent (35%) of the then existing non-Exxon or Mobil branded
retail outlets that is not covered by this Agreement at that time, BFA Holder
shall have the right to request that ExxonMobil consent to a change or
alteration in, or addition to, the grades, quality or specifications of the
Products to offer such grade, quality or specification of motor fuel in the
relevant state within the Designated Geographies, and ExxonMobil shall not
unreasonably withhold its consent to any such request.


 


(b)                                 ExxonMobil has
provided BFA Holder a copy of “QUALITY CONTROL PROCEDURES FOR GASOLINES AND
DIESEL FUEL” attached as Exhibit 10. 
This is the same document furnished to Traditional Wholesalers who are
purchasing motor fuel product directly from ExxonMobil.  BFA Holder agrees to store, handle, sell and dispense
all fuel sold through BFA Holder Branded 


 


9

















 


Outlets in compliance with all the procedures and
specifications set out in Exhibit 10 and to procure the compliance of its
Franchise Dealers, notwithstanding the fact that BFA Holder is not purchasing
motor fuel from ExxonMobil.  ExxonMobil
reserves the right to revise the procedures and specifications at any time and
BFA Holder agrees that it will, upon written notice of such revision,
immediately begin compliance with the revised procedures and specifications and
will procure compliance of its Franchise Dealers.  In the event BFA Holder fails to comply with
this Section, ExxonMobil may, without limitation to any other remedies
available to ExxonMobil, engage the services of an outside contract firm to
perform sampling, testing and reporting. 
The fees, costs and expenses of such outside contract firm shall be
borne solely by BFA Holder.


 


(c)                                  Time is of the
essence in complying with this Section 4. 
BFA Holder is obligated to take commercially reasonable steps to mitigate
any potential losses or damage resulting from any product quality defects.  BFA Holder’s notice of consumer quality
claims should be sent to the ExxonMobil Business Support Centre Canada, ULC,
Attn: Branded Wholesaler Contract Team Lead, P.O. Box 2245, Buffalo, NY
14240-2245.


 


5.                                      PRODUCT DISTRIBUTION.


 


(a)                                  ExxonMobil and
BFA Holder acknowledge and agree that this is not a product sales or supply
agreement.  ExxonMobil has no obligation
under this Agreement or otherwise to supply BFA Holder with either branded or
unbranded motor fuel products or its proprietary additive package, including
without limitation, gasoline and diesel. 
BFA Holder is solely responsible for securing and paying for Base
Product and the additive package, which meet all federal, state, and local
regulatory and product quality standards in effect for motor fuels offered for
sale through retail outlets in the Designated Geographies.  Base Product must also meet ExxonMobil
quality specifications as more specifically set out in Exhibit 3 (as
confirmed by testing as described in Exhibit 3).  BFA Holder shall participate in ExxonMobil’s
annual Marker Program in order to confirm compliance with the requirements of
this Agreement and ExxonMobil’s standards.


 


(b)                                 BFA Holder
shall not (i) acquire any motor fuels from ExxonMobil or any of its
Affiliates within the Designated Geographies, nor (ii) acquire any motor
fuels from ExxonMobil or any of its Affiliates within the United States of
America for resale as motor fuel in the Designated Geographies.  Notwithstanding the previous sentence, BFA
Holder shall be permitted to purchase motor fuels from ExxonMobil through in
tank sales for a time period beginning on the Effective Date and ending upon
the later of (A) one hundred and twenty (120) days following the Effective
Date, and (B) December 31, 2010.


 


(c)                                  BFA Holder
shall procure the additives identified on Exhibit 4 from only those
suppliers specified on Exhibit 4 (or such other supplier as may be
subsequently identified by ExxonMobil). 
BFA Holder shall additize the Base Product in accordance with the
specifications set forth in Exhibit 4, using industry standard computer
controlled additive injection equipment, prior to distribution through any BFA
Holder Branded Outlet as Product.  In the
event that BFA Holder desires a waiver from ExxonMobil with respect to the
specified additive or suppliers, or the fuel quality specifications, BFA Holder
shall contact the appropriate ExxonMobil fuels quality manager to discuss such
a request, as provided on Exhibit 4.


 


(d)                                 BFA Holder will
bear full financial responsibility for the cost of installation and maintenance
of additive racks at all terminals from which it distributes Products.  If ExxonMobil desires that a third party(s) with
whom it has a brand fee agreement or other license, distribution or wholeasaler
agreement have access, BFA Holder agrees to allow that third party(ies) to use
the additive system on a terminal by terminal basis and shall charge such third
party(s) commercially reasonable rates for such access.


 


(e)                                  ExxonMobil
agrees to undertake reasonable efforts to cooperate with BFA Holder as BFA
Holder attempts to negotiate supply and/or additive injection arrangements with
potential supply partners, provided that ExxonMobil is not obligated hereby to
waive or amend any rights it has under this Agreement or undertake any
financial obligations not set forth in this Agreement.


 


10
















 


6.                                      EXXONMOBIL PROGRAMS.


 


(a)                                  ExxonMobil and
BFA Holder expressly acknowledge and agree that the arrangement contemplated by
and set forth in this Agreement is materially different from the arrangement
that ExxonMobil has with its branded wholesalers throughout the country who
purchase motor fuel directly from ExxonMobil (hereinafter referred to as “Traditional
Wholesalers”).  BFA Holder acknowledges
that it has been advised and understands that it will not be eligible for
various types of financial assistance or support programs, including without
limitation Brand Incentive Programs (BIP), Image Assistance Programs,
Speedpass Rebate Program and Brand Standard Program, that are available to
Traditional Wholesalers.  BFA Holder
specifically acknowledges and agrees that ExxonMobil has absolutely no
obligation of any kind to offer BFA Holder any programs or services not
expressly provided for in this Agreement and BFA Holder further acknowledges
that this fact constitutes a material inducement for ExxonMobil to enter into
this Agreement.


 


(b)                                 BFA Holder
shall participate in (i) ExxonMobil’s credit card program offerings
through ExxonMobil’s approved third party provider; (ii) either ExxonMobil’s
proprietary Mystery Shopper program or an ExxonMobil-approved third party
Mystery Shopper program; and (iii) effective January 1, 2011, the
ExxonMobil Point of Purchase signage program. 
Reasonable efforts should be used to post the current ExxonMobil Point
of Purchase signage where applicable and allowable.  Such participation shall be solely at BFA
Holder’s expense.


 


(c)                                  BFA Holder will
be eligible to participate in the ExxonMobil programs listed immediately below
on the same basis as Traditional Wholesalers:


 


(1)                                  Retailer Promotional Marketing access, including Point-of-Purchase
Signage


(2)                                  Card marketing


(3)                                  Education Alliance


(4)                                  Training


(5)                                  Uniform


(6)                                  Station Locator


(7)                                  Relevant portions of the ExxonMobil branded wholesaler website (as
determined by ExxonMobil consistent with this Agreement).


 


BFA
Holder will also be eligible to participate in those ExxonMobil programs
offered from time to time to another “BFA Holder” under a separate brand fee
agreement in the Designated Geographies.


 


(d)                                 BFA Holder
acknowledges and agrees that all programs referenced in Sections 6(b) and
6(c) hereof are subject to change or cancellation at ExxonMobil’s sole
discretion and that ExxonMobil may, from time to time and in its discretion,
add new or existing programs to the required programs list or the eligible
programs list.  BFA Holder further
acknowledges that nothing set forth in this Agreement obligates ExxonMobil to
provide (or continue to provide) support for any such program and that such
support is provided at ExxonMobil’s discretion.


 


7.                                      BRAND FEES.


 


BFA Holder shall pay to ExxonMobil
the Brand Fees as described in this Section 7, such fees to be paid in
equal monthly amounts in accordance with the terms of this Agreement, in
consideration of the services that may be provided by ExxonMobil, BFA Holder’s
participation in those ExxonMobil programs that may be offered to BFA Holder,
and the use of the Proprietary Marks at the BFA Holder Branded Outlets during
the fifteen (15) year Term, subject to the terms of this Agreement.


 


(a)                                  BFA Holder’s
Direct Served Business.  With
respect to the Direct Served Outlets, (i) the “Brand Fee” during the first
ten (10) years of the Term of this Agreement shall equal the 10 Year Brand
Fee, calculated under Section 7(a)(i); and (ii) the “Brand Fee” for
the Direct Served Outlets during the final five (5) years of the Term of
this Agreement shall equal an amount agreed to between the 


 


11

















 


parties or the Adjusted Brand Fee calculated
pursuant to Section 7(a)(ii).  In
addition, BFA Holder shall pay to ExxonMobil the fees described in Section 7(a)(iii).


 


(i)            For
purposes of this Section 7(a)(i):


 


“10 Year Brand Fee” means the Initial Base
Brand Fee for the first year of this Agreement.   For each subsequent year during the first
ten (10) years of the Term of this Agreement, “10 Year Brand Fee” means
the sum of (i) the Initial Base Brand Fee plus (ii) an amount
equal to (A) the number of Base Outlets minus the Initial Base
Outlets times (B) the New Site Brand Fee.


 


“Annual Recalculation Date” means the date
which is sixty days (60) days prior to each anniversary of the Effective Date.


 


“Base Outlets” means, for the first year of
this Agreement, the Initial Base Outlets. 
For each subsequent year during the first ten (10) years of the
Term of this Agreement, “Base Outlets” shall mean the greater of (i) the
Base Outlets (under this definition) for the immediately prior year, and (ii) the
Initial Base Outlets plus the cumulative number of Direct Served Outlets
added under this Agreement from the Effective Date up to the Annual
Recalculation Date, minus the cumulative number of Closed Direct Served
Outlets from the Effective Date up to the Annual Recalculation Date.


 


Example calculation: 
**


 


Thirty (30) days prior to each anniversary of the
Effective Date, BFA Holder shall deliver to ExxonMobil a statement showing the
adjustment to the Base Outlets as of the Annual Recalculation Date along with
supporting documentation.  ExxonMobil
shall have the right to review and approve the adjustment to the Base
Outlets.  Any dispute between the parties
hereto relating to the adjustment shall be resolved in accordance with Section 39
of this Agreement, without regard to the amount in controversy limitation set
forth in Section 39(b)(i).


 


“Closed Direct Served Outlets” means any
Direct Served Outlet that has permanently ceased selling Exxon or Mobil-branded
motor fuels, excluding Rebranded BFA Holder Outlets.


 


“Initial Base Brand Fee” means an amount
equal to ** times the Initial Total Volume set forth in Exhibit 15
hereto.


 


“Initial Base Outlets” means 221.


 


“Initial Total Volume” means the total volume
of Product set forth on Exhibit 15 hereto.


 


“New Site Brand Fee” means an amount equal to
$**.


 


“Rebranded BFA Holder Outlets”  means (i) any former Direct Served
Outlet that is supplied motor fuel by BFA Holder for sale under any brand other
than Exxon or Mobil (excluding in each case any such outlet that was debranded
by ExxonMobil pursuant to Section 2(e)(3) hereof), and (ii) any
former Direct Served Outlet sold by BFA Holder to a third party for continued
petroleum use that sells motor fuel under any brand other than Exxon or Mobil.


 


(ii)           Within
six (6) months before the end of tenth (10th) year of the Term of this
Agreement, ExxonMobil and BFA Holder agree to engage in good faith negotiations
regarding an adjustment to the Brand Fee for the final five (5) years of
the Term of this Agreement for BFA Holder’s Direct Served Outlets; provided,
however, that such obligation shall not require either party to reach
definitive agreement on such adjustment. 
In the event that the parties are unable to mutually agree on an
adjustment to the Brand Fee for BFA Holder’s Direct Served Outlets, each year
(whether partial or full) during the final five (5) years of the Term of
this Agreement, BFA Holder 


 


12

















 


shall pay to ExxonMobil the Adjusted Brand Fee as
described in this Section 7(a)(ii).


 


For purposes of this Section 7(a)(ii):


 


“Adjusted Brand Fee” means, for the 11th year
of this Agreement, the Recalculated Base Brand Fee.  For each subsequent year during the remainder
of the Term of this Agreement, “Adjusted Brand Fee” means the sum of (i) the
Recalculated Base Brand Fee plus (ii) an amount equal to (A) the
number of Recalculated Base Outlets minus the Initial Recalculated Base
Outlets times (B) the New Site Brand Fee.


 


“Annual Recalculation Date” means the date
which is sixty days (60) days prior to each anniversary of the Effective Date.


 


“Closed Direct Served Outlets” means any
Direct Served Outlet that has permanently ceased selling Exxon or Mobil-branded
motor fuels, excluding Rebranded BFA Holder Outlets.


 


“Initial Base Brand Fee” means an amount
equal to ** times the Initial Total Volume set forth in Exhibit 15
hereto.


 


“Initial Total Volume” means the total volume
of Product set forth on Exhibit 15 hereto.


 


“Initial Recalculated Base Outlets” means the
total number of Direct Served Outlets existing as of the Recalculation Date.


 


“New Site Brand Fee” means an amount equal to
$**.


 


“Rebranded BFA Holder Outlets”  means (i) any former Direct Served
Outlet that is supplied motor fuel by BFA Holder for sale under any brand other
than Exxon or Mobil (excluding in each case any such outlet that was debranded
by ExxonMobil pursuant to Section 2(e)(3) hereof), and (ii) any
former Direct Served Outlet sold by BFA Holder to a third party for continued
petroleum use that sells motor fuel under any brand other than Exxon or Mobil.


 


“Recalculated Base Brand Fee” means:


 


(a)   in the
event that the Recalculated Total Volume is less than the Initial Total Volume,
the Initial Base Brand Fee plus an amount equal to the number of
Rebranded BFA Holder Outlets as of the Recalculation Date times the New
Site Brand Fee; or


 


(b)   in the
event that the Recalculated Total Volume is greater than the Initial Total
Volume, the amount calculated pursuant to Paragraphs (1) through (5) below:


 


(1)           Divide
the total volume of Recalculated Total Volume by the Recalculated Base Outlets,
in order to calculate the average gallons of Product sold per Recalculated Base
Outlet.  [For example, **]


 


(2)           Divide
the Initial Total Volume by the average gallons of Product sold per
Recalculated Base Outlet determined pursuant to Paragraph (1) above, and
round the resulting quotient up to the nearest whole number, in order to
calculate the number of outlets necessary to sell the Initial Total
Volume.  [For example, **]


 


(3)           Subtract
the number of Direct Served Outlets determined pursuant to the calculation in (2) from
the number of Initial Recalculated Base Outlets.  [For example, **]


 


(4)           Multiply
the number, if any, of Direct Served Outlets determined pursuant to the 


 


13

















 


calculation in Paragraph (3) by the New Site
Brand Fee.  [For example, **]


 


(5)           Add
the product, if any, determined pursuant to Paragraph (4) to the Initial
Base Brand Fee [For example, **]


 


(6)  To the sum resulting from the calculation
in Paragraph (5), add the product of the number of Rebranded BFA Holder Outlets
as of the Recalculation Date, multiplied by the New Site Brand Fee, and the
resulting sum shall be the Recalculated Base Brand Fee.  [For example, **]


 


“Recalculated Base Outlets” means, for the
11th year of this Agreement, the Initial Recalculated Base Outlets.  For each subsequent year during the remaining
Term of this Agreement, “Recalculated Base Outlets” shall mean the greater of (i) the
Recalculated Base Outlets (under this definition) for the immediately prior
year, and (ii) the Initial Recalculated Base Outlets plus the
cumulative number of Direct Served Outlets added under this Agreement from the
Recalculation Date up to the  Annual
Recalculation Date, minus the cumulative number of Closed Direct Served
Outlets from the Recalculation Date up to the Annual Recalculation Date.


 


Thirty (30) days prior to each anniversary of the
Effective Date, BFA Holder shall deliver to ExxonMobil a statement showing the
adjustment to the Recalculated Base Outlets as of the Annual Recalculation Date
along with supporting documentation. 
ExxonMobil shall have the right to review and approve the adjustment to
the Recalculated Base Outlets.  Any
dispute between the parties hereto relating to the adjustment shall be resolved
in accordance with Section 39 of this Agreement, without regard to the
amount in controversy limitation set forth in Section 39(b)(i).


 


“Recalculated Total Volume” means the total
volume of Product sold in the aggregate by all Direct Served Outlets for the
twelve (12) month period prior to the Recalculation Date.


 


“Recalculation Date” means the last day of
the month in the month that is three months prior to the tenth (10th)
anniversary of the Effective Date.


 


(iii)          If
a Direct Served Outlet that sold Products at any time within three (3) years
(provided, however, that any sale of Exxon-branded motor fuels prior to June 1,
2011 shall be disregarded) prior to becoming a Direct Served Outlet has been
added pursuant to the terms of this Agreement as of any Annual Recalculation
Date, then in addition to the 10 Year Brand Fee or Adjusted Brand Fee, as may
be applicable, BFA Holder shall pay to ExxonMobil an annual fee in an amount
equal to $** for each such Direct Served Outlet during each of the first two (2) full
years of the Term during which such site is subject to this Agreement, such
amount to be paid in accordance with Section 8 below.  Notwithstanding the foregoing, BFA Holder
shall not be required to pay to ExxonMobil such additional fees for any Direct
Served Outlet that became a Direct Served Outlet as a result of BFA Holder’s
acquisition of a branded wholesaler that previously supplied Products to such
Direct Served Outlet, whether by merger or by acquisition of all of the branded
wholesaler’s stock or substantially all of its assets.


 


Thirty (30) days prior to each anniversary of the
Effective Date, BFA Holder shall deliver to ExxonMobil a statement showing the
adjustment to the number of Direct Served Outlets as of the Annual
Recalculation Date.  ExxonMobil shall
have the right to review and approve the adjustment to the number of Direct
Served Outlets.  Any dispute between the
parties hereto relating to the adjustment shall be resolved in accordance with Section 39
of this Agreement, without regard to the amount in controversy limitation set
forth in Section 39(b)(i).


 


(b)           BFA
Holder’s Sub-Jobber Business.  With
respect to the Sub-Jobber Outlets, the “Brand Fee” during the Term of this
Agreement shall equal the amount calculated under Section 7(b)(i).  In addition, BFA Holder shall pay to
ExxonMobil the fees described in Section 7(b)(ii) and Section 7(b)(iii).


 


14

















 


For purposes of this Section 7(b), “Annual
Recalculation Date” means the date which is sixty (60) days prior to each
anniversary of the Effective Date.


 


(i)            During
the first full year of the Term of this Agreement, BFA Holder shall pay to
ExxonMobil a fee for each Sub-Jobber Outlet added pursuant to the terms of this
Agreement upon the addition of such Sub-Jobber Outlet equal to $** times
the number of months (including any partial month) remaining in the first full
year of the Term, divided by 
twelve (12).  During the remaining
fourteen (14) years of the Term of this Agreement, BFA Holder shall pay to
ExxonMobil an annual fee on each anniversary of the Effective Date in an amount
equal to $** times the number of Sub-Jobber Outlets existing as of the
immediately preceding Annual Recalculation Date.


 


(ii)           If
a Sub-Jobber Outlet has been added pursuant to the terms of this Agreement as
of any Annual Recalculation Date that resulted from the assignment by
ExxonMobil to BFA Holder of an existing branded wholesaler agreement, then in
addition to the Brand Fee calculated pursuant to Section 7(b)(i), BFA
Holder shall pay to ExxonMobil on each anniversary of the Effective Date a
one-time fee in amount equal to $** for each such Sub-Jobber Outlet added as of
the immediately preceding Annual Recalculation Date.


 


(iii)          If
a Sub-Jobber Outlet that sold Products at any time within three (3) years
(provided, however, that any sale of Exxon-branded motor fuels prior to June 1,
2011 shall be disregarded) prior to becoming a Sub-Jobber Outlet has been added
pursuant to the terms of this Agreement as of any Annual Recalculation Date,
then in addition to the Brand Fee calculated pursuant to Section 7(b)(i),
BFA Holder shall pay to ExxonMobil an additional annual fee in an amount equal
to $** for each such Sub-Jobber Outlet during each of the first two (2) full
years of the Term during which such site is subject to this Agreement, such
amount to be paid in accordance with Section 8 below.  Notwithstanding the foregoing, BFA Holder
shall not be required to pay to ExxonMobil such additional fees for any
Sub-Jobber Outlet that (a) was assigned to BFA Holder by ExxonMobil, if
the fee payable pursuant to Section 7(b)(ii) has already been paid to
ExxonMobil or (b) became a Sub-Jobber Outlet as a result of BFA Holder’s
acquisition of a branded wholesaler that indirectly supplied Products to such
Sub-Jobber Outlet, whether by merger or by acquisition of all of the branded
wholesaler’s stock or substantially all of its assets.


 


Thirty (30) days prior to each anniversary of the
Effective Date, BFA Holder shall deliver to ExxonMobil a statement showing the
adjustment to the number of Sub-Jobber Outlets as of the Annual Recalculation
Date along with supporting documentation. 
ExxonMobil shall have the right to review and approve the adjustment to
the number of Sub-Jobber Outlets.  Any
dispute between the parties hereto relating to the adjustment shall be resolved
in accordance with Section 39 of this Agreement, without regard to the
amount in controversy limitation set forth in Section 39(b)(i).


 


(c)           On
or before February 15 of each year, BFA Holder will provide ExxonMobil an
annual summary that details the volume of Product sold by each BFA Holder
Branded Outlet for the immediately preceding calendar year.  The form, content, and supporting
documentation shall be as specified by ExxonMobil from time to time.  ExxonMobil, in its sole discretion, shall
have the right to audit BFA Holder’s records (as well as any applicable
Franchisee Dealer records) at any time for the purpose of verifying Product
volume.  BFA Holder agrees to fully
cooperate, and to cause each Franchise Dealer to fully cooperate, with any
audit request.


 


8.                                      PAYMENT AND CREDIT.


 


(a)                                  Unless
ExxonMobil notifies BFA Holder otherwise, BFA Holder will pay ExxonMobil in
United States dollars for any fee by electronic funds transfer at the time
ExxonMobil designates and BFA Holder will execute the agreement attached as Exhibit 6.  Each monthly brand fee payment described in Section 7
above shall be paid to ExxonMobil in advance. 
The first such payment shall be made on the Effective Date and shall be
prorated to reflect the number of days remaining in the month during which the
Effective Date occurs.  Payments of brand
fees relating to each 


 


15

















 


subsequent month during the Term shall be made on
the 15th day of each month immediately preceding the
month to which such brand fee applies (for example, brand fees for March 2010
operations shall be paid by BFA Holder to ExxonMobil no later than February 15,
2010).  In the event any payment date is
not a Business Day, then the payment shall be made on the prior Business
Day.  In addition, on the Effective Date,
BFA Holder shall pay to ExxonMobil for each BFA Holder Branded Outlet that is
participating (or has participated) in the BIP (as defined in Section 19(d)(1))
an amount equal to the lesser of (i) the total amount of financial
assistance that ExxonMobil has paid under the BIP (whether through a direct
payment, set-off, credit or other indirect payment) with respect to such retail
outlet times (the number of days remaining in the branding obligation with
respect to such retail outlet divided by the total number of days of the
branding obligation with respect to such retail outlet) and (ii) the
compensatory dollar amount collectable as of the Effective Date with respect to
such retail outlet in the event of a default under the BIP.  Notwithstanding the foregoing, BFA Holder
agrees that ExxonMobil has the ongoing right to periodically give BFA Holder
notice of a different method, time, or place of payment.


 


(b)                                 In the event
ExxonMobil does not receive payment on or before the due date, ExxonMobil may
impose, and BFA Holder will pay, a late payment charge for each day that passes
between the due date and the date ExxonMobil receives payment. This late
payment charge will be in addition to ExxonMobil’s other remedies, and will not
exceed the lesser of: (A) the maximum allowed by law, or (B) a fixed
rate that may vary from state to state in ExxonMobil’s sole discretion, but
that will not be less than eighteen percent (18%) per annum prorated over the
period that credit is outstanding; and


 


(c)                                  ExxonMobil has
the right, but not the obligation, to offset any amounts owed by BFA Holder or
any of its Affiliates to ExxonMobil or any of its Affiliates against any
amounts owed by ExxonMobil or any of its Affiliates to BFA Holder or any of its
Affiliates, whether arising from charges under this Agreement, or arising under
any other agreement or business transaction between the BFA Holder or any of
its Affiliates and ExxonMobil and/or any of its Affiliates.


 


(d)                                 If requested by
ExxonMobil, BFA Holder shall provide to ExxonMobil and maintain security in an
amount not to exceed three (3) months of the Brand Fees calculated
pursuant to Section 7 and in such forms, in either case as ExxonMobil may
specify in its sole discretion (“Security”), including without limitation a
letter of credit, cash deposit, or assignment, mortgage or pledge of cash,
savings accounts or real estate or other collateral which is acceptable to
ExxonMobil.  ExxonMobil may use, without
prior notice or demand, any or all of the Security to set off or satisfy all or
any part of any indebtedness or obligation of BFA Holder to ExxonMobil or its
Affiliates whether arising under this Agreement, any other agreement or from
any other business transaction between the parties.  If ExxonMobil uses any Security to satisfy
all or any part of any such indebtedness or obligation, BFA Holder shall
immediately provide ExxonMobil with additional security, as directed by
ExxonMobil, to replace the Security used by ExxonMobil.  Following non-renewal or termination of this
Agreement and the Franchise Relationship, ExxonMobil shall return to BFA
Holder, in accordance with ExxonMobil’s procedures then in effect, any
remaining portion of the Security not required to satisfy all or any part of
any indebtedness or other obligation of BFA Holder to ExxonMobil or its
Affiliates howsoever arising.  At
ExxonMobil’s request at any time during the Term, BFA Holder shall execute and
deliver to ExxonMobil a security agreement, financing statement, mortgage, deed
of trust or other documentation as ExxonMobil may specify in such form and with
such terms as ExxonMobil may specify, to establish or perfect ExxonMobil’s
security interest in the Security.


 


9.                                      CARD ADMINISTRATION.


 


(a)                                  ExxonMobil may
issue branded credit cards (“ExxonMobil Cards”) and process and pay for
ExxonMobil Card sales tickets submitted to ExxonMobil in accordance with the
terms of the applicable card guide. ExxonMobil may authorize third party
issuers (“Third Party Issuer(s)”) to issue ExxonMobil Cards and other cards and
process and pay BFA Holder for ExxonMobil Cards and other card sales tickets
submitted to Third Party Issuer(s) in accordance with the terms of an
applicable card guide or agreement. ExxonMobil has the right, but not the
obligation, to change at 


 


16

















 


any time its methods or terms of issuing, or
authorizing the issuance of, ExxonMobil Cards and other cards and its methods
or terms of processing and paying, or authorizing the processing and payment
of, ExxonMobil Cards and other card sales tickets. Nothing in this Agreement
obligates ExxonMobil or Third Party Issuer(s) to issue ExxonMobil Cards
and other cards or to process for payment ExxonMobil Cards and other card sales
tickets.


 


(b)                                 BFA Holder
agrees to be bound by and comply with all terms and conditions of any card
guide or agreement under which ExxonMobil or Third Party Issuer(s) agrees
to process and pay for ExxonMobil Cards and other card sales tickets.  The terms of such card guide or agreement may
be amended and/or supplemented at any time by ExxonMobil or Third Party
Issuer(s).


 


(c)                                  If Third Party
Issuer(s) agrees to pay BFA Holder for ExxonMobil Card or other card sales
tickets submitted for payment in accordance with the terms of the applicable
card guide or agreement, BFA Holder will look solely to Third Party Issuer(s) and
not to ExxonMobil for such payment. 
Should ExxonMobil elect to (or otherwise) pay all or any portion of any
card sales ticket charged back by Third Party Issuer(s) to BFA Holder,
upon demand from ExxonMobil, BFA Holder shall immediately reimburse ExxonMobil
for any such payments made by ExxonMobil.


 


(d)                                 ExxonMobil has
the right, but not the obligation, to offset any amounts owed by ExxonMobil or
any of its Affiliates to BFA Holder or any of its Affiliates against any
amounts owed by BFA Holder or any of its Affiliates to ExxonMobil or any of its
Affiliates, whether arising under this Agreement, any other agreement or from
any other business transaction between the parties or any of their Affiliates.
ExxonMobil has the right, but not the obligation, to instruct a Third Party
Issuer(s) to pay ExxonMobil rather than BFA Holder for ExxonMobil Card and
other card sales tickets submitted by BFA Holder to Third Party Issuer(s), to
apply against the payment of any amounts owed by BFA Holder to ExxonMobil
whether arising under this Agreement, any other agreement or from any other
business transaction between the parties.


 


(e)                                  If BFA Holder
requests ExxonMobil or Third Party Issuer(s) to accept assignment of
credit or debit card tickets from and make return payment directly to any
Franchise Dealers, and ExxonMobil or Third Party Issuer(s) agrees, in its
sole discretion, to accept such assignments, BFA Holder agrees that such
assignments shall be treated for all purposes as if assigned directly by BFA
Holder, charge-backs of reassigned credit or debit sales tickets received from
such Franchise Dealers shall be the responsibility of BFA Holder, and that such
charge-backs may be deducted from sums owed by ExxonMobil or Third Party Issuer(s) to
BFA Holder.


 


(f)                                    If BFA Holder
or a Franchised Dealer accepts credit or debit cards in payment for any sales
of any goods or services, then BFA Holder shall comply with and shall require
all such Franchised Dealers to comply with all industry standard card security
procedures, specifically including but not limited to (i) the Payment Card
Industry Data Security Standards (PCI), (ii) the security standards and
requirements imposed on merchants by the VISA Operating Rules, (iii) the
security standards and requirements imposed on merchants by the MasterCard
Operating Rules, (iv) the security standards and requirements imposed on
merchants by American Express Travel Related Services Company, Inc., and
its parents, subsidiaries and affiliates, and (v) the security standards
and requirements imposed on merchants by DFS Services LLC and its parents,
subsidiaries and affiliates. The foregoing duty is in addition to any duties
that BFA Holder may have under an applicable card guide or agreement pursuant
to subsection (a) above. In addition to all other duties to indemnify, BFA
Holder will indemnify, defend, and hold harmless ExxonMobil from and against
all causes of action, costs, expenses, fees, assessments, reimbursements,
fines, penalties and/or losses of whatsoever nature and howsoever arising that
result directly or indirectly from BFA Holder’s failure or alleged failure to
comply with the requirements of this subsection.


 


10.                               TAXES.


 


ExxonMobil
is not responsible for payment of any taxes, fees or other charges, whether or
not of the same class or kind as those listed below, whenever imposed or
assessed, that any federal, state, county or local laws, statutes, ordinances,
codes, regulations, rules, orders, or permits (now in effect or hereafter
amended 


 


17

















 


or
enacted) directly or indirectly require to be collected or paid  related in any manner to the Base Product or additives that
BFA Holder acquires.   These charges include, without limitation (a) duty
taxes; (b) sales taxes; (c) excise taxes; (d) taxes on or
measured by income, and (e) taxes on or measured by gross receipts.


 


11.                               FAILURE TO PERFORM.


 


(a)                                  Any delays in
or failure of performance of either party hereto shall not constitute default
hereunder or give rise to any claims for damages if and to the extent that such
delay or failure is caused by occurrences beyond the control of the party
affected, including, but not limited to, acts of God or the public enemy;
expropriation or confiscation of facilities; compliance with any order or
request of any governmental authority; acts of war, terrorism, rebellion or
sabotage or damage resulting therefrom; embargoes or other import or export
restrictions; fires, floods, explosions, accidents, or breakdowns; riots;
strikes or other concerted acts of workers, whether direct or indirect;
inability to obtain necessary industrial supplies, energy, or equipment; or any
other causes whether or not of the same class or kind as those specifically
above named which are not within the control of the party affected and which,
by the exercise of reasonable diligence, said party is unable to prevent or
provide against; provided that such causes shall exclude specifically changes
in the national or world economy or financial markets or changes in general
economic conditions or the economic conditions of the party failing to
perform.  A party whose performance is
affected by any of the causes set forth in the preceding sentence shall give
prompt written notice thereof to the other party.  Neither party hereto shall be obligated to
settle strikes, differences with workmen or government claims by acceding to
any demands when in the discretion of the party whose performance is interfered
with, it would be inadvisable to accede to such demands.


 


(b)                                 Nothing in this
Section shall excuse BFA Holder from making payment when due for all
charges under this Agreement.


 


(c)                                  ExxonMobil
shall be under no obligation to furnish additives hereunder at any time. BFA
Holder accepts full responsibility for all death or injury to any person or
loss or damage to any property in any way resulting from BFA Holder’s failure
to provide premises and/or equipment, (including without limitation tanks and
transportation equipment), safe and fit for the storage or handling of motor
fuel products containing such additives, whether such failure is known or
unknown to ExxonMobil or ExxonMobil’s representative, and BFA Holder indemnifies
and holds ExxonMobil and any of its Affiliates harmless with respect to any
such death, injury, loss and/or any cause of action arising therefrom.


 


12.                               NEW OR CHANGED REGULATIONS.


 


The
parties are entering into this Agreement in reliance on the federal, state,
county and local laws, statutes, ordinances, codes, regulations, rules, orders,
permits and arrangements with governments or governmental instrumentalities
(hereinafter called “Regulations”) in effect on the date of execution of this
Agreement by ExxonMobil affecting the distribution of Product, provided for
under this Agreement insofar as said Regulations affect BFA Holder, ExxonMobil
or ExxonMobil’s Affiliates or suppliers. If the effect of any change in any
Regulation or of any new Regulation (a) is not covered by any other
provision of this Agreement, and (b) in the affected party’s judgment,
either (1) has an adverse effect upon the party (or if ExxonMobil, upon
ExxonMobil’s Affiliates or suppliers) or (2) increases the risk to the
affected party of performance under this Agreement, the affected party may
request re-negotiation of the terms of this Agreement. Such right to request
re-negotiation or, upon failure to agree, to terminate, shall without
limitation also be available to ExxonMobil if Regulations:


 


(a)                                  Regulate the
brand fee provided for in this Agreement; and/or


 


(b)                                 Affect
ExxonMobil’s liability.


 


ExxonMobil has the right, at its discretion, to terminate this
Agreement on written notice, effective ninety (90) days after a request for re-negotiation,
if the re-negotiation is not satisfactorily completed.


 


18

















 


13.                               MARKET DEVELOPMENT AND REPRESENTATION.


 


(a)                                  A primary
business purpose of ExxonMobil is to optimize effective and efficient distribution
and representation of Products through planned market and image development. In
furtherance of this business purpose, BFA Holder and ExxonMobil agree as
follows:


 


(1)                                  While it is not a requirement of this Agreement, ExxonMobil believes that
it is important for BFA Holder to have, and periodically update, a market
development plan. The plan should provide for the selection and acquisition, or
otherwise securing by BFA Holder for the purposes of branding under this
Agreement, of “strategic sites” (as defined from time to time by ExxonMobil) as
BFA Holder Branded Outlets, and should provide for the development of optimal
facilities, effective operating practices, and the necessary financial and
management resources necessary to comply with all provisions of this Agreement.


 


(2)                                  Unless pursuant to specific prior written authorization from ExxonMobil,
BFA Holder shall not, directly or indirectly, sell or supply, or cause to be
sold or supplied, Products to any person or entity then currently having a PMPA
Franchise Agreement directly with ExxonMobil or any of its Affiliates, which
Franchise Agreement pertains to a specific retail outlet(s). The reference to “entity”
in the preceding sentence shall be deemed to include any other entity owned or
controlled by the person or entity having the aforementioned PMPA Franchise
Agreement directly with ExxonMobil or any of its Affiliates.  An example of an entity having a PMPA
Franchise Agreement pertaining to a specific retail outlet is a “direct served
dealer”.


 


(3)                                  Unless pursuant to specific prior written authorization from ExxonMobil,
BFA Holder shall not, directly or indirectly, sell or supply, or cause to be
sold or supplied, any Products to any retail outlet(s) other than BFA
Holder Branded Outlets.


 


(b)                                 BFA Holder
shall cause all BFA Holder Branded Outlets to meet the following minimum
facility/product/service requirements (unless such compliance will result in
the BFA Holder or Franchise Dealer, as the case may be, being in breach of any
federal, state, county or local laws, statutes, ordinances, codes, regulations,
rules, orders, or permits) or BFA Holder shall lose the right to use or display
Proprietary Marks or to grant to its Franchise Dealers the right to use or
display Proprietary Marks at any BFA Holder Branded Outlet(s) failing to
meet these requirements:


 


(1)                                  Paved driveways with safe and good ingress and egress; and


 


(2)                                  Permanent building which is structurally sound and complies with all
fire, building and zoning codes and ordinances; and


 


(3)                                  Clean premises free of debris, trash, and fire hazards; and


 


(4)                                  Modern restrooms for men and women available to the general public; and


 


(5)                                  Offer, at the Operated Mobil Branded Outlets and the Franchised Mobil
Branded Outlets, all grades of Mobil-branded motor gasoline that may be in the
Mobil product slate, and, at the Operated Exxon Branded Outlets and the
Franchised Exxon Branded Outlets, all grades of Exxon-branded motor gasoline
that may be in the Exxon product slate, each such slate as may be set by ExxonMobil
and its Affiliates from time to time (consisting of three (3) grades each
for the Mobil product slate and the Exxon product slate as of the Effective
Date); and


 


19

















 


(6)                                  Posting, at all times, of actual motor fuel prices, in numerals, in price
sign systems (approved by ExxonMobil in its sole discretion) located on the
premises of the BFA Holder Branded Outlet(s); and


 


(7)                                  Compliance, as to each site, no later than the earlier of (A) the
completion of any Demolish and Rebuild or other site improvement work
reasonably expected to require an investment by BFA Holder or any Franchise
Dealer of $100,000 or more and (B) the fifth anniversary of the Effective
Date, with all applicable standards as described in Exhibit 7 (“Facility
Requirements”), which is incorporated herein and made a part of this Agreement.


 


14.                               SERVICES BY EXXONMOBIL.


 


(a)                                  ExxonMobil may
at its sole discretion, from time to time, make available to BFA Holder, or
assist BFA Holder in obtaining, the following:


 


(1)                                  Standard plans, specifications, equipment, decor and signs identified
with Exxon or Mobil-branded, as the case may be, retail outlets as ExxonMobil
makes available to Traditional Wholesalers from time to time; and


 


(2)                                  Guidelines and materials to assist BFA Holder in providing its employees,
contractors and Franchise Dealers and their employees and contractors
franchise-management training as ExxonMobil makes available to Traditional
Wholesalers from time to time; and


 


(3)                                  Periodic individual or group advice, consultation, data and other
services as ExxonMobil may deem necessary or appropriate.


 


(b)                                 At any time or
from time to time, ExxonMobil may add, discontinue or change any of the
services under Section 14(a) and may impose conditions or criteria
for the availability to BFA Holder of any of such services.  ExxonMobil may have all or a portion of any
services provided by persons designated by ExxonMobil.  From time to time, ExxonMobil may charge BFA
Holder fees, or require BFA Holder to pay fees to ExxonMobil’s third party
designee(s) in consideration for providing the services set out in Section 14(a).


 


15.                               PROMOTION OF PRODUCTS.


 


(a)                                  BFA Holder
agrees to diligently promote and cause its Franchise Dealers to diligently
promote the sale of Products, including through advertisements, all in
accordance with the terms of this Agreement. 
BFA Holder hereby acknowledges and agrees that, notwithstanding anything
set forth herein to the contrary, to insure the integrity of ExxonMobil
trademarks, products and reputation, ExxonMobil shall have the authority to
review and approve, in its sole discretion, all forms of advertising and sales
promotions that will use media vehicles for the promotion and sale of any
product, merchandise or services, in each case that (i) uses or
incorporates any Proprietary Mark or (ii) relates to any Business operated
at a BFA Holder Branded Outlet. 
Furthermore, for any significant advertising campaign, sponsorship
and/or promotion, BFA Holder shall submit in advance to ExxonMobil or its
designee, for its written approval, all materials prepared by or for BFA
Holder.  These materials may include, but
are not limited to, any media (including TV, radio, internet or print),
professional or collegiate sports affiliations, and cultural or civic
sponsorships that would have regional or national reach and are associated with
any ExxonMobil brand, whether directly or indirectly.  Approval will be granted (or not) within ten (10) business
days from ExxonMobil’s receipt of a request from BFA Holder.  If no written approval is received from
ExxonMobil within the applicable ten-business-day period, then the request
shall be deemed denied.  BFA Holder shall
expressly require all Franchise Dealers to (a) agree to such review and
control by ExxonMobil and (b) comply with the notice requirements set
forth in this Section.  BFA Holder shall
be responsible for compliance (both by BFA Holder and by its Franchise


 


20
















 


Dealers) with any and all applicable federal, state,
county or local advertising laws, statutes, ordinances, codes, regulations,
rules, orders, or permits.


 


(b)                                 In promoting
the Products and developing markets under this Agreement (including in the use
of business cards and business stationary), (i) BFA Holder, in its role as
branded wholesaler, shall identify itself appropriately as an “Exxon-authorized
branded wholesaler” or a “Mobil-authorized branded wholesaler,” as the case may
be, and only as such and (ii) BFA Holder, in its role as dealer, and each
Franchise Dealer shall identify itself as an “Exxon-authorized dealer” or a “Mobil-authorized
dealer,” as the case may be, and only as such.


 


16.                               CUSTOMER SERVICE AND COMPLAINTS.


 


(a)                                  While using any
Proprietary Marks, BFA Holder agrees:


 


(1)                                  To render appropriate, prompt, efficient, and courteous service at each
Operated Branded Outlet to BFA Holder’s customers, to respond expeditiously to
all complaints of such customers, making fair adjustment when appropriate, and
otherwise conduct BFA Holder’s business in a fair and ethical manner and
maintain the Operated Branded Outlets in a manner which will foster customer
acceptance of and desire for the Products sold hereunder; and


 


(2)                                  To provide sufficiently qualified and neatly dressed personnel in
ExxonMobil approved uniforms (e.g., standard ExxonMobil uniform or BFA Holder
proprietary C-Store brand uniform) at all Operated Branded Outlets as
appropriate to render first class service to customers; and


 


(3)                                  To keep restrooms clean, orderly, sanitary and adequately furnished with
restroom supplies; and


 


(4)                                  To assist in maintaining a high level of customer acceptance of
Proprietary Marks by keeping the Operated Branded Outlets’ premises open for
dispensing of the Products during such hours each day and days a week as are
reasonable considering customer convenience, competitive conditions and
economic consequences to BFA Holder.


 


(b)                                 BFA Holder also
agrees that, as to any of its Franchise Dealers, BFA Holder will include in its
arrangements with such Franchise Dealers the undertakings provided in this Section in
respect of each Franchised Branded Outlet and will undertake the enforcement
thereof. BFA Holder further agrees that ExxonMobil may revoke the right of BFA
Holder to display Proprietary Marks at any Operated Branded Outlet(s), or to
permit the display of Proprietary Marks at any Franchised Branded Outlet(s) which,
after notice by ExxonMobil to BFA Holder to cure, continues to be in violation
of this Section.


 


17.                               TRAINING.


 


During
the Term, the BFA Holder, if an individual, or its designated Key Person (or a
designee of such Key Person acceptable to ExxonMobil), shall attend and
satisfactorily complete an initial franchise-management training program as may
be designated by ExxonMobil.  BFA Holder
shall pay all expenses incurred, directly or indirectly, by BFA Holder in
connection with attendance and participation in said training program,
including, without limitation, costs and expenses of transportation, lodging,
meals, wages and employee benefits. BFA Holder shall also pay to ExxonMobil, or
any ExxonMobil designee, reasonable fees or charges that ExxonMobil, or such
designee, may impose from time to time and relating to such training program.


 


18.                               TECHNOLOGY AND COMMUNICATIONS.


 


BFA Holder acknowledges that the use of current technology and
communications systems in the operation of the Businesses is of critical
importance. BFA Holder further acknowledges that technology and 


 


21

















 


communications systems are expected to change over time requiring
periodic addition, replacement, or updating of equipment or systems used in the
Businesses.


 


19.                               EXISTING FRANCHISE DEALER AGREEMENTS; NEW BFA HOLDER BRANDED OUTLETS.


 


(a)                                  BFA Holder
shall enter into a written agreement with each Franchise Dealer. The agreement
must:


 


(1)                                  Be consistent with this Agreement; and


 


(2)                                  Require the Franchise Dealer’s commitment to the Core Values; and


 


(3)                                  Impose on each Franchise Dealer the requirements and obligations as
specified in this Agreement, including without limitation, complying with the
minimum image requirements, complying with the insurance requirements, and
allowing entry to its respective Franchised Branded Outlet(s) for the purposes
specified in this Agreement.


 


(b)                                 If on the
Effective Date a Franchised Branded Outlet is covered by an existing agreement
between the Franchise Dealer and BFA Holder that does not conform to Section 19(a) BFA
Holder shall, in respect to that Franchise Dealer:


 


(1)                                  Require compliance with the provisions of this Agreement to the full
extent allowed by the existing agreement during its term; and


 


(2)                                  Use best efforts to have that Franchise Dealer enter into an agreement in
compliance with Section 19(a) as soon as reasonably possible; and


 


(3)                                  In any event, upon the expiration or other termination of any such
existing agreement, enter into a new agreement with that Franchise Dealer only
in accordance with Section 19(a).


 


(c)                                  BFA Holder
shall cause each BFA Holder Branded Outlet to be operated in strict compliance
with this Agreement upon the following timing:


 


(1)                                  For all BFA Holder Branded Outlets previously approved by ExxonMobil, or
any of its Affiliates, under a previous PMPA Franchise Agreement, within a
reasonable time not to exceed ninety (90) days from the Effective Date unless:


 


(i)                                     A written policy of ExxonMobil from time to time provides for an
additional compliance period; or


 


(ii)                                  Section 19(c)(3) applies.


 


(2)                                  For all BFA Holder Branded Outlets approved by ExxonMobil under Section 2(e) on
or after the Effective Date, a reasonable period, not to exceed ninety (90)
days from the date of ExxonMobil’s approval of that retail outlet; and


 


(3)                                  For all Franchised Branded Outlets covered by existing non-conforming
agreements under Section 19(b), a reasonable period of time, not to exceed
ninety (90) days, from the date of the expiration or other termination of that
agreement.


 


(d)


 


(1)                                  BFA Holder acknowledges and agrees that ExxonMobil shall be entitled, in
its sole 


 


22

















 


discretion, to assign to
BFA Holder existing branded wholesaler agreements between ExxonMobil and its
branded wholesalers.  In the event that
ExxonMobil elects to assign an existing branded wholesaler agreement to BFA
Holder, BFA Holder shall assume and accept all of ExxonMobil’s rights and
obligations under any such branded wholesaler agreement arising after the
assignment thereof to BFA Holder and all retail outlets subject to the branded
wholesaler agreement shall thereafter become Sub-Jobber Outlets subject to the
terms and conditions of this Agreement. 
BFA Holder acknowledges and agrees that certain retail outlets subject
to branded wholesaler agreements with ExxonMobil that may be assigned to BFA
Holder are participants in one or more of ExxonMobil’s imaging incentive
programs, which includes, but is not limited to: Brand Incentive Program,
Modernization Assistance Program, Image Enhancement Program, Brand Growth
Program, and the Image Program of Mobil Oil Corporation (all hereby known as
the “BIP”), and that Purchaser shall assume all of ExxonMobil’s obligations
with respect to the BIP at any such retail outlet that participates in the BIP
as of the date of assignment of the branded wholesaler agreement from
ExxonMobil to BFA Holder.  In addition,
subject to Section 19(d)(2) below, for each retail outlet subject to
a branded wholesaler agreement that ExxonMobil assigns to BFA Holder that is
participating in the BIP, BFA Holder shall pay to ExxonMobil on the date of,
and immediately prior to, the assignment an amount equal to **.


 


(2)                                  In the event that ExxonMobil elects to assign an existing branded
wholesaler agreement to BFA Holder and the average annual throughput volume for
all of the retail sites subject to that branded wholesaler agreement are less
than 600,000 gallons on a trailing twelve month basis, then ExxonMobil and BFA
Holder shall discuss and come to mutually agreeable terms on the amount for
which BFA Holder shall be required to pay ExxonMobil with respect to financial
assistance that ExxonMobil has paid under the BIP.


 


20.                               INSURANCE REQUIREMENTS.


 


(a)                                  During the
Term, in addition to any other insurance or surety bonding required by
applicable federal, state, county or local laws, statutes, ordinances, codes,
regulations, rules, orders, or permits, BFA Holder will carry and maintain in
full force and effect, with companies satisfactory to ExxonMobil, solely at BFA
Holder’s expense, and in a form satisfactory to ExxonMobil:


 


(1)                                  Comprehensive/Commercial
General Liability insurance including, but not limited to, coverage for the
sale of motor fuel products and lubricants (including the Products), operation
of the Businesses, retail motor fuel stores and the premises at each Operated
Branded Outlet, garage liability (if applicable) completed operations and  contractual liabilities, with minimum policy  limits of two million dollars ($2,000,000) providing
coverage for injury, death or property damage resulting from each occurrence.
In the event BFA Holder has alcoholic beverages for sale at any Operated
Branded Outlet, the insurance policy will be endorsed to include coverage with
minimum policy limits of one million dollars ($1,000,000) for liabilities
arising out of the dispensing or selling of alcoholic beverages including,
without limitation, any liabilities imposed by a dram shop or alcoholic
beverage control act.


 


(2)                                  Business Auto Liability insurance coverage for operation of vehicles
hired, owned or non-owned with minimum policy limits of two million dollars
($2,000,000), including the MCS-90 endorsement or other acceptable evidence of
financial responsibility as required by the Motor Carrier Act of 1980 and the
Pollution Liability Broadened Coverage endorsement, providing coverage for
injury, death or property damage resulting from each occurrence. Business Auto
coverage with appropriate endorsements is required if any motor vehicles,
including, without limitation, fuel delivery vehicles and tow vehicles, are
used in the operation of any of the Businesses.


 


(3)                                  Garagekeepers Legal Liability insurance (if any of the Operated Branded
Outlets include 


 


23

















 


service bays) including
but not limited to, coverage for fire, theft, riot, vandalism and collision
with limits of at least fifty thousand dollars ($50,000) for each occurrence.


 


(4)                                  Workers Compensation and Employers Liability insurance for all BFA Holder’s
employees engaged in performing services or similar social insurance, where
required by federal, state, county or local laws, statutes, ordinances, codes,
regulations, rules, orders, or permits which may be applicable to BFA Holder’s
employees with a waiver of subrogation and/or contribution against ExxonMobil
where such waiver is permitted by federal, state, county or local laws,
statutes, ordinances, codes, regulations, rules, orders, or permits.


 


(5)                                  Environmental impairment insurance coverage with policy limits of at
least one  million dollars ($1,000,000) on a
continuous and uninterrupted basis insuring BFA Holder for environmental legal
liabilities arising out of, but not limited to, the sale of motor fuel products
and lubricants, ownership and operation of the Businesses, retail motor fuel
stores and the premises at each Operated Branded Outlet.


 


(b)                                 BFA Holder may
meet its obligations under this Agreement for environmental impairment
insurance coverage for underground storage tanks under Section 20(a)(5) by
participation in an Environmental Protection Agency (“EPA”) approved state
financial assurance fund or other EPA-approved method to demonstrate financial
responsibility or by satisfying any of the other financial assurance test
requirements of the EPA’s Financial Responsibility Regulations (40 CFR Part 280).  Upon request by ExxonMobil, BFA Holder shall
promptly furnish ExxonMobil with documentation satisfactory to ExxonMobil
evidencing:


 


(1)                                  BFA Holder’s participation in a state approved financial assurance fund
or other EPA-approved method to demonstrate financial responsibility; or


 


(2)                                  Compliance with the EPA’s financial assurance test requirements.


 


If at any time BFA Holder ceases participating in
an approved state financial assurance fund or other EPA-approved method to
demonstrate financial responsibility or stops meeting the EPA’s financial
assurance test requirements, as the case may be, BFA Holder promptly shall
obtain the insurance required under Section 20(a)(5) and provide
ExxonMobil with evidence of insurance in accordance with Section 20(a)(5).  The term “underground storage tank” includes
all piping, lines and  accessories
connected to or made a part of a petroleum underground storage tank.


 


(c)                                  ExxonMobil may
from time to time require BFA Holder, and/or cause BFA Holder to require any of
its Franchise Dealers, to carry additional types and amounts of insurance
coverage, including modifications to existing insurance under this Section, as
ExxonMobil considers reasonable in the circumstances.


 


(d)                                 Each policy of
insurance described in this Section 20 shall name ExxonMobil Oil
Corporation as additional insured (except Workers Compensation and Employers
Liability) and shall be primary as to all other policies that may provide
coverage.  BFA Holder shall pay, and
shall cause its Franchise Dealers to pay, all premiums and assessments charged
for the insurance policy or policies when due.


 


(e)                                  BFA Holder
shall comply, and cause its Franchise Dealers to comply, with all policy terms
and conditions and the directions of the insurance carrier, its ratings bureau
and the National Fire Protection Association. 
BFA Holder, or its Franchise Dealer(s) as the case may be, shall
bear all claims, losses or damages that are not recoverable from BFA Holder’s,
or the Franchise Dealer’s, as the case may be, insurers due to the application
of a deductible clause or to BFA Holder’s, or 


 


24

















 


the Franchise Dealer’s, failure to observe the terms
and conditions of the insurance coverage. 
BFA Holder shall indemnify and defend ExxonMobil for all these
unrecoverable claims, losses or damages, including without limitation any
arising from Franchise Dealers.  Without
limiting the general requirements of this Section 20, ExxonMobil may
reject any policies which contain deductibility clauses, conditions or
exclusions, or that are underwritten by insurance companies, that are
unacceptable in ExxonMobil’s reasonable determination.  Upon rejection of a policy, BFA Holder
promptly shall procure, and cause its Franchise Dealer(s) to promptly
procure, a policy with provisions and by an underwriter reasonably acceptable
to ExxonMobil.  ExxonMobil’s receipt or
acceptance of any policy or evidence of insurance is not a waiver by ExxonMobil
of any requirement under this Section 20 or of its right to reject the policy
as unacceptable and does not affect BFA Holder’s, or its Franchise Dealer’s as
the case may be, liability for claims, losses or damages that are or would have
been covered by BFA Holder’s, or such Franchise Dealer’s, full compliance with
this Section 20.


 


(f)                                    During the
Term, each insurance policy and certificate of insurance of BFA Holder must
specify the insurance will not be terminated, canceled or materially changed
without ten (10) days’ prior written notice to ExxonMobil.  If a policy or policies is/are terminated,
canceled or materially changed, BFA Holder shall promptly, prior to the
termination, cancellation or change of that policy, procure a new or substitute
policy containing at least the same coverage as the previous policy.  The new policy must begin coverage prior to
the expiration of the previous policy or prior to the effective date of the
material change, as applicable.  BFA
Holder shall cause all of its Franchise Dealers to comply with this Section 20(f) with
respect to each insurance policy and certificate of insurance.


 


(g)                                 Prior to the
Effective Date, and at any time upon request by ExxonMobil, BFA Holder shall
furnish to ExxonMobil, or its representative, certificates of insurance,
specifying the types and amounts of coverage in effect, expiration dates,
confirmation that each policy complies with the requirements of this Section (or
the relevant section of BFA Holder’s franchise agreement with the Franchise
Dealer as the case may be), and specifying that no insurance shall be terminated,
canceled or materially changed during the Term without ten (10) days’
prior written notice to ExxonMobil.  Upon
request by ExxonMobil, BFA Holder shall furnish to ExxonMobil or its
representatives copies of the required insurance policies.


 


(h)                                 Nothing in this
Section 20 in any way limits or waives BFA Holder’s legal or contractual
responsibilities to ExxonMobil or others.


 


(i)                                     BFA Holder
shall cause its Franchise Dealers, with respect to operations at Franchised
Branded Outlets, to carry insurance of the types and in the amounts, as are
necessary and customary for the operation of such Franchised Branded Outlets.


 


(j)                                     Without
limiting any other remedy available to ExxonMobil, including termination or
non-renewal of this Agreement and the Franchise Relationship, ExxonMobil may
debrand any BFA Holder Branded Outlet(s) that fails to comply with the
provisions of this Section 20.


 


(k)                                  If BFA Holder,
for any reason, fails to procure and maintain required insurance satisfactory
to ExxonMobil, ExxonMobil may, at ExxonMobil’s election and upon notice to BFA
Holder, immediately procure the required insurance.  Upon ExxonMobil’s request, BFA Holder
promptly shall furnish ExxonMobil with all information relating to BFA Holder
or the Businesses requested by ExxonMobil in connection with the procurement of
any required insurance.  Upon written
demand, BFA Holder shall immediately reimburse ExxonMobil for the costs of
procuring the insurance.  ExxonMobil’s
right to procure insurance under this Section 20 may not be construed as
an obligation by ExxonMobil to procure any insurance and does not preclude
ExxonMobil from exercising other rights or remedies it may have under this
Agreement including debranding of the BFA Holder Branded Outlet(s) in
question and termination or non-renewal of this Agreement and 


 


25

















 


the Franchise Relationship.  ExxonMobil’s election not to procure any
insurance under this Section 20 may not be construed as:


 


(1)                                  A waiver of BFA Holder’s obligations under Sections 20 and 21; or


 


(2)                                  Limiting ExxonMobil’s right to exercise any other right or remedy,
including debranding of the BFA Holder Branded Outlet(s) in question and
termination or non-renewal of this Agreement and the Franchise Relationship.


 


(l)                                     ExxonMobil is
entitled to the full coverage of any insurance procured by BFA Holder, its
Franchise Dealers or ExxonMobil under this Section 20 but in no event less
than the minimum coverage required by Section 20(a).  The minimum limits specified in Section 20(a) do
not limit or affect ExxonMobil’s right to full insurance coverage or ExxonMobil’s
rights under Section 21.  If BFA
Holder does not own or lease transport to carry the Products, BFA Holder shall
cause any person engaged by BFA Holder to carry the Products at all times to
maintain insurance at levels required by the Hazardous Materials Transportation
Act.


 


(m)                               The insurance
coverages specified in this Agreement are required to the extent they are
reasonably available as determined solely by ExxonMobil.


 


21.                               INDEMNIFICATION.


 


(a)                                  BFA Holder
assumes the risk of and sole responsibility for maintaining and operating, all
real property, fixtures, tanks, equipment, and personal property used in
connection with, or in any way related to, its operations, conduct or business
or the operations, conduct or business of its Franchise Dealers, in a safe
condition free of all hazards and risks and in compliance with all applicable
federal, state, county and local laws, statutes, ordinances, codes,
regulations, rules, orders, and permits. 
Such responsibility will include, but not be limited to, providing tanks
safe and fit for the storage and handling of Products.


 


(b)                                 BFA Holder
assumes the risk of and sole responsibility for and agrees to defend (with
counsel acceptable to ExxonMobil, unless such defense, but not ExxonMobil’s
defense costs, is waived by ExxonMobil) indemnify, release and hold harmless (1) ExxonMobil;
(2) its Affiliates and (3) ExxonMobil’s and any of its Affiliates’
officers, directors, control persons, employees, agents, representatives,
successors and assigns ((2) and (3) together hereinafter “ExxonMobil’s
Associates”) from and against any and all expenses, costs (including, without
limitation, professional fees), penalties, fines (without regard to the amount
of such fines), liabilities, claims, demands and causes of action, at law or in
equity (including, without limitation, any arising out of the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA), the Resource
Conservation and Recovery Act (RCRA), the Clean Air Act, or any other federal,
state, county or local laws, statutes, ordinances, codes, regulations, rules,
orders, or permits), which may be asserted against ExxonMobil or ExxonMobil’s
Associates by any person for injuries, death, loss, or damage of any kind or
character to person, property, or natural resources, by whomever suffered or
asserted (including without limitation BFA Holder, its Franchise Dealers or
their agents, contractors, employees, invitees, licensees, and/or trespassers),
resulting from, related to or arising out of the operations, conduct or
business of BFA Holder or its Franchise Dealers or the condition of any real
property, fixtures, tanks, equipment or personal property of BFA Holder or its
Franchise Dealers, which is used in connection with, or in anyway related to,
the operations, conduct or business of BFA Holder or its Franchise Dealers,
this Agreement or its breach by BFA Holder or its Franchise Dealers.


 


BFA Holder’s obligations under this Section 21 and under Sections
11(c) and 24(b) of this Agreement will fully apply and BFA Holder
will fulfill its obligations thereunder EVEN IF EXXONMOBIL OR EXXONMOBIL’S
ASSOCIATES ARE JOINTLY OR CONCURRENTLY NEGLIGENT, (WHETHER BY ACT OR OMISSION)
OR JOINTLY OR CONCURRENTLY 


 


26

















 


GUILTY OF WILLFUL MISCONDUCT (WHETHER BY ACT OR OMISSION), but not if
ExxonMobil or ExxonMobil’s Associates are solely negligent or solely guilty of
willful misconduct.  Likewise, BFA Holder’s
obligations under this Section 21 and under Sections 11(c) and 24(b) of
this Agreement shall be in addition to (and in no manner in limitation of) any
indemnification or other similar obligation that BFA Holder or its Affiliates
might have pursuant to any other agreement between BFA Holder or its Affiliates
and ExxonMobil.


 


22.                               TRANSFER/ASSIGNMENT.


 


This
Agreement shall not be transferred or assigned or sold by BFA Holder in whole
or in part, directly or indirectly (including, without limitation, as a result
of any change in control of BFA Holder or any of its Affiliates), except with
the prior written consent of ExxonMobil, which consent (i) as to
Massachusetts, shall be provided in accordance with M.G.L.A. 93E § 4A or
any subsequent governing law, (ii) as to Rhode Island, will not be
unreasonably withheld in accordance with Rhode Island Statute § 5-55-4 or
any subsequent governing law; or (iii) as to New Hampshire, ExxonMobil may
withhold or delay in its sole discretion. 
BFA Holder shall furnish to ExxonMobil such information as may be
reasonably required for ExxonMobil to evaluate the character, financial
ability, and business experience of any proposed assignee.  Notwithstanding the foregoing, BFA Holder
shall be permitted to assign or sublicense its rights under this Agreement in
whole or in part to an Affiliate without the consent of ExxonMobil.  Such information shall be provided in a
timely fashion that allows ExxonMobil to determine whether it will consent to
the proposed assignment within the time period, if any, specified in any
applicable state law.  ExxonMobil may
assign this Agreement in whole or in part upon ten (10) days prior written
notice to BFA Holder.  Notwithstanding
anything herein to the contrary, a change in control of BFA Holder or any of
its Affiliates shall not include transfers of equity amongst the existing
holders thereof or their respective heirs or trusts for estate planning
purposes.


 


23.                               WAIVER.


 


No
waiver by either party of any breach of any of the covenants or conditions
herein contained to be performed by the other party shall be construed as a
waiver of any succeeding breach of the same or any other covenant or
condition.  All waivers must be in
writing.


 


24.                               LAWS.


 


(a)                                  BFA Holder
agrees that in receiving, storing, handling, offering for sale, selling,
delivering for use or using itself Products under this Agreement, BFA Holder
will comply, and cause its employees and Franchise Dealers to comply, with all
applicable federal, state, county and local laws, statutes, ordinances, codes,
regulations, rules, orders, and permits.


 


(b)                                 BFA Holder will
defend (with counsel acceptable to ExxonMobil, unless such defense, but not
ExxonMobil’s defense costs, is waived by ExxonMobil) indemnify, release and
hold harmless ExxonMobil and ExxonMobil’s Associates from and against any and
all expenses, costs (including, without limitation, professional fees),
penalties, fines (without regard to the amount of such fines), liabilities,
claims, demands, and causes of action, at law or in equity (including, without
limitation, any arising out of the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery
Act (RCRA), or the Clean Air Act) for BFA Holder’s failure to comply with Section 24(a),
and such failure by BFA Holder to comply shall also entitle ExxonMobil to
terminate this Agreement and the Franchise Relationship.


 


25.                               NOTICES.


 


All
written notices required or permitted to be given by this Agreement shall be
given only by personal delivery (to an officer or manager in the case of
ExxonMobil), certified mail, express mail, air courier, telegram or facsimile
transmission and shall be deemed given respectively when the notice is
personally delivered or deposited in the mail or with the air courier service
or telegraph company, postage or charges prepaid, with confirmation of delivery
requested, or transmitted via facsimile machine with confirmation sheet
confirming completed and proper transmission, and directed to the party for
whom intended at the address set forth above or to such other address as may be
furnished by either party to the other in writing 


 


27

















 


in
accordance with the provisions of this Section; provided that notice of change
of address must be received to be effective (and shall not be effective until
actually received).  All notices under
this Section should be directed to:


 


If, to ExxonMobil:


 


ExxonMobil Branded Wholesale Implementation Manager


3225 Gallows Road


Fairfax, Virginia 22037


 


with a copy to:


 


ExxonMobil Fuels Marketing


Attn:  Global
Identity & Image Standards Advisor


3225 Gallows Road


Fairfax, Virginia 22037


 


If, to BFA Holder:


 


Global Companies LLC


800 South Street, Suite 200


Waltham, Massachusetts 02453


Attn:       President
and CEO


 


with a copy to:


 


Global Companies LLC


800 South Street, Suite 200


Waltham, Massachusetts 02453


Attn:       General
Counsel


 


26.                               TERMINATION.


 


(a)                                  This Agreement
and the Franchise Relationship shall terminate upon expiration of the Term.


 


(b)                                 This Agreement
and the Franchise Relationship may be terminated by BFA Holder in the event
that ExxonMobil loses, or transfers to a third party (other than to an
Affiliate of ExxonMobil), the right to grant BFA Holder the right to use either
of the Proprietary Marks used to brand Branded Fuel that BFA Holder is using
pursuant to this Agreement as of the date ExxonMobil loses or transfers such
right.


 


(c)                                  This Agreement
and the Franchise Relationship may be terminated by ExxonMobil:


 


(1)                                  Upon transfer or assignment of this Agreement by BFA Holder contrary to Section 22;
or


 


(2)                                  If BFA Holder or any Key Person, manager, or stockholder makes any false
or materially misleading statement or representation (by act or by omission)
which induces ExxonMobil to enter into this Agreement, or which is relevant to
the Franchise Relationship between the parties hereto; or


 


(3)                                  If BFA Holder becomes insolvent; or


 


28

















 


(4)                                  If BFA Holder fails to pay in a timely manner any sums when due hereunder
(other than any sums that are being contested by BFA Holder in good faith); or


 


(5)                                  If BFA Holder defaults in any of its obligations under this Agreement; or


 


(6)                                  If BFA Holder or any Key Person is declared incompetent to manage its
property or affairs by any court, or if BFA Holder or any Key Person is
mentally or physically disabled for three (3) months or more, to the
extent that BFA Holder is unable to provide for the continued proper operation
of the Businesses; or


 


(7)                                  Under the circumstances described cause for termination by ExxonMobil in
any Section of this Agreement; or


 


(8)                                  If BFA Holder or any Key Person dies, to the extent that BFA Holder is
unable to provide for the continued proper operation of the Businesses; or


 


(9)                                  If BFA Holder or any Key Person, manager, or stockholder engages in fraud
or criminal misconduct relevant to the operation of the Businesses; or


 


(10)                            If BFA Holder or any Key Person, manager, or stockholder is convicted of
a felony or of a misdemeanor involving fraud, moral turpitude or commercial
dishonesty, whether or not the crime arose from the operation of the
Businesses; or


 


(11)                            If BFA Holder breaches Section 3 by willfully committing an act of
misbranding of the Products or misuses the Proprietary Marks; or


 


(12)                            If there occurs any other circumstance under which termination of a
Franchise is permitted under the provisions of the PMPA; or


 


(13)                            ExxonMobil loses the right to grant the right to use any of the
Proprietary Marks.


 


For
purposes of section (4) and (5) above, BFA Holder shall be entitled
to notice of any such default from ExxonMobil and a reasonable time period in
which to cure such default, before ExxonMobil exercises its right to terminate
this Agreement.  Notwithstanding the
previous sentence, in the event of a recurring default by BFA Holder of an
obligation under this Agreement, ExxonMobil shall have no obligation to provide
further notice or opportunities for BFA Holder’s cure prior to exercising its
right to terminate this Agreement.


 


(d)                                 If ExxonMobil
has cause to believe that BFA Holder has engaged in fraudulent, unscrupulous or
unethical business practices (which shall include but not be limited to
practices forbidden by federal, state, county or local laws, statutes,
ordinances, codes, regulations, rules, orders, or permits), ExxonMobil may, at
its sole discretion, give BFA Holder written notice of its belief.  Following the receipt of such notice, BFA
Holder shall be given reasonable opportunity to discuss the matter with ExxonMobil’s
representatives.  If following such
discussions (or reasonable opportunity therefor) and after such investigation
of the matter as is reasonable under the circumstances, ExxonMobil reaches a
good faith conclusion that BFA Holder has engaged in one or more such
practices, ExxonMobil shall have the right to terminate this Agreement.


 


(e)                                  Any termination
of this Agreement by ExxonMobil shall be preceded by such notice from
ExxonMobil as may be required by law.


 


29

















 


(f)                                    Upon the
expiration of the Term or upon termination hereof, ExxonMobil shall have the
right, at its option, to enter, during normal operating hours, upon any
premises at which the Proprietary Marks are displayed (including, without
limitation all BFA Holder Branded Outlets), and to remove, paint out, or
obliterate any signs, symbols or colors on said premises or on the buildings or
equipment thereof which in ExxonMobil’s opinion would lead a purchaser to
believe that the Products are being offered for sale at such premises.  BFA Holder shall cause its Franchise Dealers
to grant ExxonMobil such a right of entry.


 


(g)                                 In the event
this Agreement is terminated, ExxonMobil will suffer substantial damages which
are anticipated to be difficult and time consuming to prove with
exactitude.  Furthermore, both parties
are desirous of avoiding what they believe will be the disproportionate cost of
possible litigation and legal fees which a future dispute over the magnitude of
such damages would engender.  The
parties, therefore, have determined that if this Agreement is terminated, BFA
Holder must pay to ExxonMobil as liquidated damages (in addition to any damages
(liquidated or otherwise) payable to ExxonMobil under any other agreement
between BFA Holder and ExxonMobil), and not as a penalty, an amount rounded to
the nearest dollar, equal to ** times (the Initial Total Volume set
forth on Exhibit 15) times (the number of years, including any
partial year, remaining in the initial fifteen-year Term after such
termination).  Notwithstanding the
foregoing, BFA Holder shall not pay to ExxonMobil any liquidated damages under
this Section 26(g) in the event that this Agreement is terminated: (i) in
connection with a market withdrawal under the provisions of the PMPA; (ii) by
ExxonMobil pursuant to Section 12; (iii) by BFA Holder pursuant to Section 26(b);
or (iv) by ExxonMobil pursuant to Section 26(c)(13) (except, in the
case of this subsection (iv), in the event ExxonMobil’s loss of the right to
grant the right to use any of the Proprietary Marks is attributable to BFA
Holder or any of its Affiliates or franchisees).


 


(h)                                 Termination of
this Agreement by either party for any reason shall not relieve the parties of
any obligation theretofore accrued under this Agreement.


 


27.                               ACCORD.


 


The parties to this Agreement have discussed the provisions herein and
find them fair and mutually satisfactory, and further agree that in all
respects the provisions are reasonable and of material significance to the
relationship of the parties hereunder, and that any breach of a provision by
either party hereto or a failure to carry out said provisions in good faith
shall conclusively be deemed to be substantial.


 


28.                               NATURE AND MODIFICATION OF AGREEMENT.


 


(a)                                  In
consideration of the granting and execution of this Agreement, the parties
understand and agree that they are not contractually obligated to extend or
renew in any way the Term, and that this Agreement shall not be considered or
deemed to be any form of “joint venture” or “partnership” at the premise(s) of
BFA Holder or elsewhere (including without limitation any BFA Holder Branded
Outlet).


 


(b)                                 BFA Holder
agrees to provide sixty (60) days’ prior written notice of any change in the
name or legal form of BFA Holder.


 


(c)                                  This Agreement
may be modified only in writing signed by both parties or their duly authorized
agents.  ExxonMobil hereby agrees that if
it enters into any material amendment of a brand fee agreement with any holder
thereof operating in the Designated Geographies, ExxonMobil shall offer such
amendment in substantially the same form to all of brand fee agreement holders
then operating in the Designated Geographies.


 


29.                               SEVERABILITY OF PROVISIONS.


 


Both
parties expressly agree that it is the intention of neither party to violate
statutory or common law and that if any section, sentence, paragraph, clause or
combination of same is in violation of any law, such


 


30
















 


sentences,
paragraphs, clauses or combination of same shall be inoperative and the
remainder of this Agreement shall remain binding upon the parties hereto.


 


30.                               ENTIRE AGREEMENT.


 


This
writing is intended by the parties to be the final, complete and exclusive
statement of this Agreement about the matters covered herein.


 


31.                               DISCLAIMER; NO RELIANCE.


 


EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT EXXONMOBIL MAKES NO REPRESENTATION,
EXPRESSED OR IMPLIED, RELATING TO ITSELF OR ANY OF ITS AFFILIATES, OR ANY OTHER
MATTER, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED.  BFA HOLDER ACKNOWLEDGES AND
AGREES THAT (i) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
EXXONMOBIL HAS NOT MADE ANY PROMISE, REPRESENTATION OR WARRANTY, EXPRESSED OR
IMPLIED, AND (ii) BFA HOLDER HAS NOT EXECUTED OR AUTHORIZED THE EXECUTION
OF THIS AGREEMENT IN RELIANCE UPON ANY PROMISE, REPRESENTATION OR WARRANTY NOT
EXPRESSLY SET FORTH HEREIN.


 


32.                               DAMAGES.


 


NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXXONMOBIL (NOR ANY OF ITS
AFFILIATES) WILL HAVE NO LIABILITY TO ANYONE FOR BUSINESS DISRUPTION, LOST
PROFITS, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED
TO THIS AGREEMENT.


 


33.                               ATTORNEYS FEES.


 


If
BFA Holder fails to pay any amount due under this Agreement or takes any action
not requested in writing by ExxonMobil for which BFA Holder, its Franchise
Dealers or their respective customers bring a claim or lawsuit against
ExxonMobil or any of its Affiliates, BFA Holder agrees to pay ExxonMobil’s (or
any of its Affiliates’) costs, fees and expenses (including reasonable
attorneys fees) thereby expended in ExxonMobil’s (or its Affiliates’) pursuit
or defense of such matters.


 


34.                               KEY PERSON CLAUSE.


 


If
BFA Holder is a corporation, partnership or other entity form, it agrees to
execute Exhibit 11 (“Key Person Clause”) attached hereto and incorporated
as part of this Agreement.


 


35.                               RIGHT OF ENTRY.


 


In
addition to any other rights of ExxonMobil under this Agreement, BFA Holder
permits, and shall cause its Franchise Dealers to permit, ExxonMobil, it’s
Affiliates and their respective employees, agents, vendors, contractors and
representatives (a) to access, analyze and reproduce books, records,
correspondence, receipts, and data of BFA Holder or its Franchise Dealers
pertaining to activities undertaken pursuant to this Agreement, and (b) to
enter, during normal operating hours, any BFA Holder Branded Outlet(s) and
other places where BFA Holder or any of its Franchise Dealers conduct any
Business to enforce ExxonMobil’s rights and remedies under this Agreement,
including examining (to include video, photographic, digital, audio and other
recordings), testing and sampling of all properties, tanks, containers, pumps
and delivery truck tanks, and taking other action, for purposes of preserving
the integrity of the Proprietary Marks, performing product quality inspections
and determining BFA Holder’s compliance with this Agreement (including
compliance with the terms of Sections 3 and 4). 
If, in the sole opinion of ExxonMobil, any samples thus taken are not
Products or any document or record shows BFA Holder has failed to comply with
its obligations hereunder (or failed to cause any Franchise Dealer to so
comply), ExxonMobil may, at its sole option, debrand the BFA Holder Branded
Outlet(s) in question or cancel and terminate this Agreement and the
Franchise Relationship.  ExxonMobil shall
provide notice to BFA Holder of entry at an License Branded Outlet, except in
the case of any such entry in connection with ExxonMobil’s product quality
inspections.   BFA Holder shall preserve
and shall cause its Franchise Dealers to preserve all books, records,
correspondence, receipts and data pertaining to activities undertaken pursuant
to this Agreement for a period of three (3) years.  BFA Holder agrees to include necessary
provisions in its contracts with Franchise Dealers that shall assure access by
ExxonMobil or its 


 


31

















 


representatives
to the applicable records of the Franchise Dealers.  BFA Holder’s obligation to preserve all books
and records, and ExxonMobil’s right to access and reproduce such books and
records shall extend for a period of three (3) years after the termination
of this Agreement.


 


ExxonMobil
shall not be liable to BFA Holder or any Franchise Dealer for any interference
with any Business of BFA Holder or its Franchise Dealers as a result of
ExxonMobil’s entry on any BFA Holder Branded Outlet(s) and other places
where BFA Holder or any of its Franchise Dealers conduct any Business,
including any entry pursuant to Section 26(f) hereof.


 


36.                               TERMS OF RENEWAL.


 


Nothing
in this Agreement is to be construed as preventing ExxonMobil upon expiration
of this Agreement or any renewal of the Franchise Relationship, from offering
BFA Holder terms and conditions, in good faith and in normal course of
business, which differ from or are in addition to those in this Agreement.


 


37.                               DRUG AND ALCOHOL.


 


(a)                                  In the event
BFA Holder takes delivery of Products from ExxonMobil at ExxonMobil’s (or its
Affiliates’) facilities, the following provisions of this Section shall
apply.  BFA Holder and BFA Holder’s
employees, agents and contractors shall not enter ExxonMobil’s (or its
Affiliates’) facilities while under the influence of alcohol or any controlled
substance.  BFA Holder, its employees,
agents and contractors shall not use, possess, distribute or sell illicit or
unprescribed drugs in connection with any activity performed under this
Agreement.  BFA Holder, its employees,
agents and contractors shall not use, possess, distribute or sell alcoholic
beverages at any time while performing activities under this Agreement.  BFA Holder has adopted or will adopt its own
policy to assure a drug and alcohol free workplace while performing activities
under this Agreement.


 


(b)                                 BFA Holder will
remove any of its employees, agents or contractors from performing activities
hereunder any time there is suspicion of alcohol or drug use, possession or
impairment involving such employee, agent or contractor, and at any time an
incident occurs in performing activities hereunder where drug or alcohol use
could have been a contributing factor. 
ExxonMobil has the right to require BFA Holder to remove BFA Holder’s
employees, agents or contractors from ExxonMobil’s (or its Affiliates’)
facilities at any time cause exists to suspect alcohol or drug use by such
employees, agents or contractors.  In
such cases, BFA Holder’s employee, agent or contractor may be considered for
return to ExxonMobil’s (or its Affiliates’) facilities only if the BFA Holder
certifies as a result of a for cause test, conducted immediately after removal,
that said employee, agent or contractor was in compliance with the provisions
of this Section.  BFA Holder will not use
an employee, agent or contractor to perform activities hereunder who either
refuses to take, or tests positive in, any alcohol or drug test.


 


(c)                                  ExxonMobil may,
without prior notice, search the person, possession and vehicles of BFA Holder’s
employees, agents and contractors that are on the premises owned or controlled
by ExxonMobil (or its Affiliates).  Any
person who refuses to cooperate with such search will be removed from the
premises and will not be allowed to return. 
BFA Holder will replace any of its employees, agents or contractors at
ExxonMobil’s request.


 


(d)                                 BFA Holder will
comply with all applicable drug and alcohol related federal, state, county and
local laws, statutes, ordinances, codes, regulations, rules, orders, and permits
(e.g., Department of Transportation Regulations, Department of Defense
Drug-free Workplace Policy, Drug-free Workplace Act of 1988).  ExxonMobil shall have the right, but not the
obligation, to perform unannounced audits of BFA Holder’s alcohol and drug
program to verify that BFA Holder’s policy and its enforcement are acceptable
to ExxonMobil.


 


38.                               NO THIRD PARTY BENEFICIARY.


 


Other
than with respect to any indemnified party, the parties agree that no third
party beneficiary rights in favor of any person or entity are, nor are they
intended to be, created by this Agreement.


 


32

















 


39.                               CLAIMS AND DISPUTE RESOLUTION.


 


(a)                                Claims.


 


(1)                                  As used in this Section, “claim(s)” shall be construed broadly and shall
include but not be limited to a demand for money, property, equitable relief,
or any interest, whether fixed or contingent, to which a party asserts a right.


 


(2)                                  Except as otherwise provided in this Agreement, all claims by BFA Holder
or by ExxonMobil arising out of or relating to this Agreement and the Franchise
Relationship between the parties created hereunder are barred unless asserted
within 12 months after the event, act or omission to which the claim relates
and in accordance with the dispute resolution procedure set forth below.


 


(b)                                 Dispute
Resolution Procedure.


 


(1)                                  All claims by BFA Holder or by ExxonMobil arising out of or relating to
this Agreement and the Franchise Relationship between the parties created
hereunder which cannot be settled through negotiation shall, unless the
provisions of Section 39(b)(1)(vi) apply, first be submitted to
mediation administered by the American Arbitration Association (“AAA”) under
its Commercial Mediation Procedures before resorting to arbitration, or in the
case of claims exclusively governed by the PMPA, litigation.  The following principles shall apply in
respect of any mediation hereunder:


 


(i)                                     Mediation under this provision shall not be available unless the claim(s) in
controversy exceeds the sum or value of $5,000.


 


(ii)                                  Unless otherwise agreed to by the parties, the mediation shall last no
longer than two days.


 


(iii)                               The mediator shall be appointed by the AAA keeping in mind the location
and convenience of the parties and the location of the BFA Holder Branded
Outlet(s) to which the claim relates. 
The parties prefer that any mediator appointed hereunder be either an
individual with judicial experience or one who has been a member of the bar for
at least 25 years.


 


(iv)                              Each party shall include among its representatives in the mediation
proceeding an individual authorized to settle the claim(s).


 


(v)                                 Irrespective of which party commences the mediation procedure, the filing
fee required to be paid to the AAA shall be paid by ExxonMobil.  All other costs of the mediation, including
any fees to be paid to the mediator, shall be shared equally by the
parties.  Each party shall be responsible
for all expenses incurred by it in presenting its case, including any attorney’s
fees.


 


(vi)                              If either party believes it will be prejudiced or in any way adversely
affected by the mediation procedure because of delay, expense incurred, time
requirements or any other legitimate concern, that party may, by notice to the
other, proceed directly to arbitration.


 


(2)                                  All claims by BFA Holder or by ExxonMobil arising out of or relating to
this Agreement and the Franchise Relationship between the parties created
hereunder, except for claims exclusively governed by the PMPA and claims by
ExxonMobil seeking relief when time 


 


33

















 


is of the essence,
including but not limited to claims of trademark misuse, claims which relate to
the existence of environmental concerns, claims relating to the conduct on the
BFA Holder Branded Outlet(s) of illegal activities, or actions seeking to
evict a dealer claimed to be in wrongful possession of the premises, which are
not resolved by negotiation or mediation, may be asserted only in an
arbitration proceeding to be conducted in accordance with the provisions of
this Section 39(b).


 


(i)                                     Any such claims by BFA Holder or by ExxonMobil shall be resolved
exclusively by arbitration administered by the AAA under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.  The decision of the arbitrator shall be final
and shall be binding on the parties.


 


(ii)                                  In the event a claim by BFA Holder raises issues that are governed
exclusively by the PMPA as well as issues that must be submitted to arbitration
hereunder, the claims under the PMPA shall be severed and raised, if at all, in
litigation.  The remaining claims shall
be resolved by arbitration, as provided herein.


 


(iii)                               The arbitration shall be held before a sole arbitrator who shall be
selected by agreement of the parties.  If
after forty-five (45) days from the commencement of the arbitration the parties
have been unable to agree on the selection of an arbitrator, either party may
ask the AAA to appoint a sole arbitrator and the decision of the AAA in this
respect shall be final and binding.  The
parties prefer that any arbitrator agreed to between them or appointed by the
AAA hereunder be either an individual with judicial experience or one who has
been a member of the bar for at least 25 years.


 


(iv)                              The arbitrator shall decide the matter before him or her in accordance
with the terms of this agreement, the applicable substantive law of the state
where the BFA Holder is located and any federal statutes which may be
applicable.  The Federal Arbitration Act
shall govern any arbitration proceeding hereunder.  All awards rendered hereunder shall be in
writing and on the request of either party shall state the reasoning on which
the award rests.


 


(v)                                 No claim asserted hereunder may be consolidated or asserted jointly with
the claim or claims of any other claimant or class of claimants and no
arbitration proceeding commenced hereunder may be consolidated or joined with
any other arbitration nor may any claim asserted hereunder be asserted as part
of any class action litigation or class action arbitration proceeding.  If, for any reason, an arbiter or a court
determines that the parties’ agreement prohibiting class claims  is not enforceable, the class claims must be
brought as a class action litigation and not as a class action arbitration.


 


(vi)                              Irrespective of which party commences the arbitration procedure
hereunder, the filing fee required to be paid to the AAA shall be paid by
ExxonMobil.  All other costs of the
arbitration, including the fees to be paid to the arbitrator, shall be shared
equally by the parties.  Each party shall
be responsible for all expenses incurred by it in presenting its case,
including any attorney’s fees.


 


(c)                                  Severability.  It is agreed and understood that Section 39
of this Agreement shall apply in respect of construction of this Section 39
and that a finding of invalidity or unenforceability of any portion of this Section 39
shall not affect the validity or enforceability of any other portion.


 


34

















 


40.                               MISCELLANEOUS.


 


(a)                                  BFA Holder
shall hold in confidence all business and technical information that is made
available to BFA Holder, directly or indirectly, by ExxonMobil or acquired by
BFA Holder during the Term of this Agreement, including any propriety
information with respect to the additives and related mix rates, (collectively “Confidential
Information”), except:


 


(1)                                  information which is in or becomes, without fault of BFA Holder or any
Franchise Dealer, part of the public domain;


 


(2)                                  information which BFA Holder can show was received by BFA Holder from an
independent third party that is under no obligation to ExxonMobil regarding the
information;


 


(3)                                  information which BFA Holder can show was already in BFA Holder’s
possession at the time the information was made available to BFA Holder,
directly or indirectly, from ExxonMobil;


 


(4)                                  information required to be disclosed by Law (e.g., bills of lading or
product transfer documentation) or valid legal or regulatory process, following
notice by BFA Holder to ExxonMobil of the requirement to disclose and
reasonable cooperation with any attempt by ExxonMobil to maintain the
confidentiality of such Confidential Information, to the extent such advance
notice and cooperation is possible without resulting in BFA Holder’s violation
of applicable Law; and


 


(5)                                  information required to be disclosed to government tax authorities on a
tax return or other mandatory report filed with such authorities, but solely
for the purpose of, and to the extent necessary for, complying with applicable
federal, state or local excise or other tax laws.


 


BFA Holder also agrees that it shall not take any
photographs, video or other recordings (including any digital or audio
recording) of ExxonMobil Oil Corporation’s or any of its Affiliate’s property
without ExxonMobil’s prior written consent.


 


(b)                                 WITHOUT
LIMITING THE SCOPE OF THE FOREGOING SECTION 40(a), BFA HOLDER SPECIFICALLY
AGREES THAT IT WILL HOLD IN CONFIDENCE ALL INFORMATION RELATING TO THE SOURCING
OF THE PRODUCT DISTRIBUTED PURSUANT TO THIS AGREEMENT EXCEPT FOR NECESSARY
COMMUNICATION WITH BFA HOLDER’S SUPPLIERS OF BASE PRODUCT AS WELL AS ANY AND
ALL INFORMATION RELATING TO THE BRAND FEE. 
VIOLATION OF THIS PROVISION SHALL CONSTITUTE GROUNDS FOR TERMINATION OF
THE AGREEMENT.


 


(c)                                  BFA Holder
shall not, without the prior written approval of ExxonMobil use the
Confidential Information which BFA Holder is required to keep confidential
hereunder for any purpose other than the performance of BFA Holder’s
obligations under this Agreement.


 


(d)                                 ExxonMobil
shall have no obligation of confidence with respect to any information
disclosed to ExxonMobil by BFA Holder, and ExxonMobil shall be free to use or
disclose any or all of the information contained in any drawing, record or
other document to third parties without accounting to BFA Holder therefor;
unless, however, information is specifically covered by a separate, written
confidentiality agreement.  In the absence
of any such confidentiality agreement, BFA Holder shall not place any
restrictive notices on any information, no matter the form of its recording,
that BFA Holder provides to ExxonMobil hereunder.  Should BFA Holder place any 


 


35

















 


notices on any drawing, record or other document,
ExxonMobil is hereby authorized to nullify, obliterate, remove, or disregard
those provisions.


 


(e)                                  BFA Holder
shall establish and maintain precautions to prevent its employees, agents or
representatives and Franchise Dealers from making, receiving, providing, or
offering substantial gifts, entertainment, payments, loans, or other
consideration to employees, agents, or representatives of ExxonMobil for the
purpose of influencing those persons to act contrary to the best interests of
ExxonMobil.  This obligation shall apply
to BFA Holder’s activities in its relations with the employees of ExxonMobil
and their families and/or third parties arising from this Agreement.


 


(f)                                    BFA Holder
agrees that all financial settlements, billings, and reports, if any, rendered
to ExxonMobil shall reflect properly the facts about all activities and
transactions handled for the account of ExxonMobil, which data may be relied
upon as being complete and accurate in any further recordings and reportings
made by ExxonMobil for whatever purpose.


 


(g)                                 BFA Holder
agrees to notify ExxonMobil promptly upon discovery of any instance where the
BFA Holder or BFA Holder’s employees, agents, representatives or Franchise
Dealer fails to comply with Sections 40(e) or (f).


 


(h)                                 BFA Holder
acknowledges its receipt of the notices attached hereto as Exhibit 12.  BFA Holder has reviewed and understands the
information set forth therein.


 


41.                               RHODE ISLAND - PRICE PROVISION.


 


The following provision is
applicable only to those BFA Holder Branded Outlets located in the State of
Rhode Island:


 


NOTHING HEREIN SHALL BE
CONSTRUED TO PROHIBIT A FRANCHISOR FROM SUGGESTING PRICES AND COUNSELING WITH
FRANCHISEES CONCERNING PRICES.  PRICE
FIXING OR MANDATORY PRICES FOR ANY PRODUCTS COVERED IN THIS AGREEMENT IS
PROHIBITED.  A SERVICE STATION DEALER OR
BRANDED WHOLESALER MAY SELL ANY PRODUCTS LISTED IN THIS AGREEMENT FOR A
PRICE WHICH HE ALONE MAY DECIDE.


 


42.                               INDEPENDENT CONTRACTORS; INDEPENDENT ADVICE.


 


It
is expressly agreed that the parties will carry on their respective business
pursuant to this Agreement as independent contractors in pursuit of their
independent callings and not as partners, fiduciaries, agents, or in any other
capacity. Each party has had the opportunity to obtain independent legal advice
respecting this Agreement and the business relations mentioned in this
Agreement.


 


[Remainder of page intentionally
left blank; signature page follows]


 


36

















 


EXECUTED by BFA Holder
and ExxonMobil on the date indicated for each signature.


 


	
   

  	
   

  	
   

  	
  GLOBAL
  COMPANIES LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  9/3/10

  	
   

  	
  By:

  	
  Edward
  J. Faneuil

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President 

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Sean
  T. Geary

  	
   

  	
  Date:

  	
  9/3/10

  
	
   

  	
  Witness

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  EXXONMOBIL
  OIL CORPORATION (ExxonMobil)

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  9/3/10

  	
   

  	
  By:

  	
  Jim
  E. Coleman

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Distributor
  Implementation Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Frank
  J. Giampa

  	
   

  	
  Date:

  	
  9/3/10

  
	
   

  	
  Witness

  	
   

  	
   

  	
   

  



 


37

















 


EXHIBITS


 


BRAND FEE AGREEMENT


BETWEEN EXXONMOBIL OIL CORPORATION AND GLOBAL COMPANIES LLC


EFFECTIVE SEPTEMBER 8, 2010


 


Exhibit 1
- Initial BFA Holder Branded Outlets


 


Exhibit 2
- Designated Geographics


 


Exhibit 3
- Product Specifications


 


Exhibit 4
- Additives


 


Exhibit 5
- Intentionally Omitted


 


Exhibit 6
- ExxonMobil Oil Corporation Electronic Funds Transfer Authorization Agreement


 


Exhibit 7
- Facility Requirements


 


Exhibit 8
- Tobacco Assurance Letter


 


Exhibit 9
- De-branding Guidelines


A
- Mobil


B
- Exxon


 


Exhibit 10
- Quality Control Procedures for Gasolines and Diesel Fuel - Branded Wholesaler


 


Exhibit 11
- Key Person Clause


 


Exhibit 12
- Notices


Rhode
Island State Notice


Revised
Summary of Title I of the Petroleum Marketing Practices Act


 


Exhibit 13
- Mobil Proprietary Marks


A
- Retail Motor Fuels Business


B
- Related Businesses


 


Exhibit 14
- Exxon Proprietary Marks


A
- Retail Motor Fuels Business


B
- Related Businessses


 


Exhibit 15
- Initial Total Volume


 


Exhibit 16
- Exxon or Mobil Branded Retail Outlets in the Designated Geographies


 


38