**Exhibit 10.6**

 

**SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTEDBECAUSE****CONFIDENTIAL TREATMENT FOR THOSETERMS HAS BEEN****REQUESTED. THEREDACTED MATERIAL HAS BEEN SEPARATELY FILED****WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THETERMS****HAVE BEEN MARKED AT THEAPPROPRIATE PLACE WITH TWO****ASTERISKS(**).**

 

BRAND FEE AGREEMENT

 

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

 

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

 

(1)           To deliver quality products thatcustomers can trust.

(2)           To employ friendly, helpful people.

(3)           To provide speedy, reliable service.

(4)           To provide clean and attractiveretail facilities.

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

 

WHEREAS, BFA Holder does or in the future will either own, operate orsupply certain retail motor fuel outlets at those locations identified on Exhibit 1hereto and may, subject to ExxonMobil’s consent, own, operate or supply certainretail 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 motorfuel to or through these outlets and to receive certain services, and beeligible to participate in certain programs, related to the Exxon and Mobilbrands, but currently does not wish to purchase the motor fuel product fromExxonMobil or its Affiliates;

 

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

 

WHEREAS, ExxonMobil is willing to furnish BFA Holder with certainservices and programs, as more particularly defined herein, associated with theExxon and Mobil brands;

 

WHEREAS, ExxonMobil is willing to allow BFA Holder to utilize theProprietary Marks in accordance and subject to the terms of this Agreement inconnection with the retail identification of the retail motor fuel outlets thatare subject to this Agreement and to allow motor fuel sold from or throughthese 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 Agreementshall be in full force and effect for the period of fifteen (15) yearsbeginning 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 Termfor periods not exceeding one hundred and eighty (180) days for eachextension.  An extension shall not beconstrued as renewal of this Agreement or of the Franchise Relationship.

 

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**2.****                                     ****GRANT.**

 

By this Agreement, ExxonMobil and BFA Holder establish a “Franchise” anda “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 tothe Proprietary Marks (as defined below) to be used in connection with theretail sale of Exxon or Mobil-branded motor fuel (including both gasoline anddiesel), as the case may be (“Products”), ExxonMobil grants BFA Holder thelimited and non-exclusive right to:

 

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

 

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

 

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

 

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

 

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

 

Forpurposes of this Agreement, BFA Holder Branded Outlets can be supplied in oneof two methods, (i) BFA Holder’s Direct Served Business, which are thoseBFA Holder Branded Outlets that are supplied Product for retail sale through anagreement directly with BFA Holder or any of its Affiliates (the “Direct ServedOutlets”), or (ii) BFA Holder’s Sub-Jobber Business, which are those BFAHolder Branded Outlets that are supplied Product for retail sale through an agreementbetween BFA Holder or one of its Affiliates and any branded wholesaler that isnot an Affiliate of BFA Holder (the “Sub-Jobber Outlets”).  Note that for purposes of this Agreement, theterm “branded wholesaler(s)” shall include “distributor(s)”, as may beapplicable.

 

(b)                                 Under thisAgreement, “Mobil Proprietary Marks” shall mean (i) only those trademarksidentified on Exhibits 13-A and 13-B hereto and (ii) related tradedress.  “Exxon Proprietary Marks” shallmean (i) only those trademarks identified on Exhibits 14-A and 14-B heretoand (ii) related trade 

 

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dress.  “ProprietaryMarks” 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) andSection 2(d)(1) by ExxonMobil to BFA Holder for BFA Holder’s use ofthe Proprietary Marks, as to each Proprietary Mark, shall be limited to onlythe 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 theRelated Businesses only) (the “Authorized Uses”).  For the avoidance of doubt, BFA Holder herebyagrees and acknowledges that the Proprietary Marks may be used only during theTerm and only at the BFA Holder Branded Outlets and that nothing set forth inthis Agreement shall be interpreted to grant BFA Holder any rights in or tosuch Proprietary Marks for any offsite use unless expressly authorized byExxonMobil in writing.  BFA Holderfurther hereby acknowledges and agrees that notwithstanding anything to thecontrary set forth herein, it shall not be permitted to use, or grant the useof, any of the Exxon Proprietary Marks prior to June 1, 2011.  In addition, specifically excluded from anyAuthorized Use is BFA Holder’s use of any Proprietary Mark on or in connectionwith any auto repair services or any trucks, cars or other rolling stock of anynature.  BFA Holder shall not have anyauthority under this Agreement to use any trademark or other intellectualproperty 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 itsAffiliates.  BFA Holder shall bepermitted 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 orpermit the use of both Mobil Proprietary Marks and Exxon Proprietary Marks atany retail outlet.  As used in this Agreement,the term “Affiliate” as it relates to ExxonMobil means,  (1) ExxonMobil Oil Corporation or itssuccessors-in-interest, (2) any parent corporation, partnership, or otherentity of the ExxonMobil Oil Corporation or its successors-in-interest whichnow or hereafter owns or controls, directly or indirectly through one or moreintermediaries, fifty percent or more of the ownership interest having theright to vote for or appoint directors of ExxonMobil Oil Corporation or itssuccessors-in-interest (“Parent Company”), (3) any corporation,partnership, or other entity, regardless of where situated, at least fiftypercent of whose ownership interest having the right to vote for or appointdirectors is now or hereafter owned or controlled, directly or indirectlythrough one or more intermediaries, by ExxonMobil Oil Corporation or itssuccessors-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 indirectlycontrolling, controlled by, or under common control with BFA Holder, includingany other person directly or indirectly controlling, controlled by, or undercommon control with such person.  Forpurposes of this definition, the term “control” (including the terms “controlledby” and “under common control with”) means the possession, directly orindirectly, of the power to direct or cause the direction of the management andpolicies of any person, whether through the ownership of voting securities orby contract or otherwise.  For thepurposes of this Agreement, Alliance Energy LLC, a Massachusetts limitedliability company (“Alliance”) and AE Holdings Corp., a Massachusettscorporation and the managing member of Alliance shall not be consideredAffiliates of BFA Holder.

 

(c)                                  BFA Holder willarrange for and be solely responsible for procuring an adequate supply ofunbranded motor fuel (“Base Product”) that meets the requirements of Section 5of this Agreement.  After Base Producthas been additized as provided in Section 5 hereof, it may be distributedby BFA Holder as Product to the BFA Holder Branded Outlets subject to all termsand conditions of this Agreement.

 

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

 

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

 

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

 

(3)                                  During the Term, BFA Holder shall operate and shall cause its FranchiseDealers to operate any Related Business utilizing any Proprietary Mark, asapproved under Section 2(e), in compliance with this Agreement and shallnot operate, and shall cause its Franchise Dealers not to operate, any otherbusinesses or activities utilizing Proprietary Marks at any BFA Holder BrandedOutlet unless agreed in writing by the parties hereto.  During the Term, and except as expresslyprovided in this Agreement, BFA Holder (or any of its Franchise Dealers) maychange, delete or add a Related Business at a BFA Holder Branded Outlet onlywith the prior written consent of ExxonMobil. Nothing contained in this Section 2 may be construed as limiting orpreventing ExxonMobil from changing, deleting, adding or substituting anyProprietary Mark used in connection with a Related Business.

 

(4)                                  The motor fuels business, under which BFA Holder distributes the Productshereunder for retail sale at the BFA Holder Branded Outlets, the retail salesof motor fuels at the BFA Holder Branded Outlets and the Related Businesses areherein collectively referred to as the “Businesses.”

 

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

 

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

 

(ii)                                  ExxonMobil has not:

 

(A)                              Debranded that outlet; or

 

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

 

For the purposes of Section 2(e)(1)(i) above, only thoseretail 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 inaccordance with the terms of this Agreement, no retail outlet or otheroperation that is Mobil or Exxon-branded and branded wholesaler-served as ofthe Effective Date is subject to operation under the terms of thisAgreement.  Approval of any outlets in 

 

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addition to those set out on Exhibit 1 will be on a site by sitebasis and shall be memorialized by a trademark authorization letter in a formto be specified by ExxonMobil from time to time.  Notwithstanding the previous sentence, anyExxon or Mobil branded retail outlet to be added under this Agreement that isapproved at that time for Exxon or Mobil-branding shall not require re-approvalto be added under this Agreement; provided, however, that ExxonMobil shall beentitled to review the Exxon or Mobil branding of such outlet to ensurecompliance with Section 2(g) hereof.

 

(2)                                  In its sole discretion, ExxonMobil may approve or not approve thebranding of any outlet or the use or operation of any Businesses proposed byBFA Holder or any Franchise Dealer. ExxonMobil is not obligated to furnish a reason for withholdingapproval.  ExxonMobil’s furnishing of areason does not in any way limit its rights to withhold for any reason anyapproval of that or any future branding proposal.  BFA Holder shall comply, and cause itsFranchise Dealers to comply, with any requirements and conditions imposed byExxonMobil 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, anyRelated Business) at any outlet

 

if, in ExxonMobil’s sole judgment:

 

(a)                                  That outlet (orany Businesses thereat) fails to portray the image and standards ExxonMobilexpects from its branded retail outlets;

 

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

 

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

 

ExxonMobil shall provide prior written notice of its intention towithdraw its approval pursuant to Section 2(e)(3)(a) or (b) andBFA 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 BrandedOutlet at issue.  In the event that BFAHolder has not satisfied ExxonMobil as to resolution of the issue within suchthirty (30) day period, ExxonMobil may withdraw its approval.

 

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

 

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

 

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

 

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

 

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

 

(iv)                              Bars or establishments that allow for any consumption of intoxicatingbeverages or any sales or consumption of intoxicating beverages in violation ofapplicable 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 permitsrelating to youth access to tobacco products. BFA Holder shall promptly adviseExxonMobil, and shall ensure that Franchise Dealers promptly advise BFA Holder,of any citations or notifications of violations received at any BFA HolderBranded Outlet from any regulatory authority resulting from any such tobaccosales and of the resolution of any such citations and notifications.  BFA Holder agrees to comply with therequirements set forth in Exhibit 8.

 

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

 

(f)                                    This Agreementdoes not give BFA Holder an exclusive right in any market or geographic area tosell Products or conduct any Related Business. BFA Holder acknowledges that ExxonMobil and its Affiliates may directlyor indirectly compete with BFA Holder by using, or, subject to Section 2(g) authorizingthe use of any trademark, trade names and trade dress owned by ExxonMobil (orany of its subsidiaries or Affiliates) from time to time including, withoutlimitation, the Proprietary Marks, including in close proximity to, andnotwithstanding any commercial impact on, any BFA Holder Branded Outlet.

 

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

 

Theforegoing provision shall not restrict the operation of any retail outlet thatmay be set forth on Exhibit 16 hereto from time to time.  Exhibit 16 shall set forth all Exxon orMobil branded retail outlets in the Designated Geographies existing as of theEffective Date.  Any new Exxon or Mobilbranded retail outlet that is added to an existing branded wholesaler agreementbetween ExxonMobil and any of its existing branded wholesalers in theDesignated Geographies shall be 

 

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addedto Exhibit 16 by ExxonMobil.  AnyExxon or Mobil branded retail outlet that is debranded shall be deleted fromExhibit 16 by ExxonMobil.

 

**3.****                                     ****TRADEMARKS**

 

(a)                                  BFA Holder ispermitted to display the Proprietary Marks solely to designate the brand of theProducts or other approved Businesses being operated at a BFA Holder BrandedOutlet (which uses shall be limited to only the specific correspondingAuthorized Use(s) as to each Proprietary Mark).  BFA Holder agrees that no Product will besold under any of the Proprietary Marks unless it meets the product qualityspecifications set forth in this Agreement and is additized as specified inthis Agreement nor shall any Business be operated unless it meets the qualityspecification and other standards (including any brand identity standards orretail image standards) existing as of the Effective Date or modified orestablished by ExxonMobil from time to time, as such standards andspecifications may be amended from time to time after the Effective Date.  If there shall be posted, mounted, orotherwise displayed on or in connection with any BFA Holder Branded Outlet anysign, poster, placard, plate, device or form of advertising matter whether ornot received from ExxonMobil, consisting in whole or in part of the name ofExxonMobil or any of the Proprietary Marks, BFA Holder agrees at all times todisplay same, or cause the Franchise Dealers to display same, properly and notto diminish, dilute, denigrate, or otherwise adversely affect same.  BFA Holder further agrees to take no actionthat will diminish or dilute the value of any Proprietary Mark.

 

(b)                                 Immediatelyupon termination (whether in full or as to any individual outlet) or expirationof this Agreement, or prior thereto upon demand by ExxonMobil, BFA Holder shalldiscontinue all uses of the Proprietary Marks, including the posting, mountingor display of any Proprietary Mark and all uses of Proprietary Marks inconnection with business cards, advertisements and letterhead/stationary, andshall cause its Franchise Dealers to do the same.  If BFA Holder or any Franchise Dealer ceasesto do business at any BFA Holder Branded Outlet, BFA Holder shall, and shallcause its Franchise Dealer to, discontinue the posting, mounting or display ofany 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 Outletin question is debranded by ExxonMobil under Section 2(e) or in anyevent upon demand by ExxonMobil.  BFAHolder acknowledges ExxonMobil’s self-help rights set forth in this Agreement,including the rights of entry described in Sections 26(e) and 35, andagrees that BFA Holder shall be solely responsible for all fees, cost andexpenses incurred by ExxonMobil or its Affiliates in exercising any suchrights.

 

(c)                                  BFA Holderagrees to notify ExxonMobil or its designee of any apparent or threatenedinfringement, dilution or other misuse (“Misuse”) of any Proprietary Markpromptly after becoming aware of such Misuse. ExxonMobil shall have the sole right, in its sole discretion, to takeany action, legal or otherwise, against such Misuse, and notwithstanding anyother provisions in this Agreement, BFA Holder agrees to provide ExxonMobilwith any assistance which, in the opinion or judgment of ExxonMobil, isnecessary to protect ExxonMobil’s right, title and interest in and to theProprietary Marks.  ExxonMobil shall beentitled in such event to retain all monetary recovery from any misusing thirdparty by way of judgment, settlement or otherwise.  BFA Holder shall have no right to, and herebyagrees 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 againstExxonMobil, ExxonMobil’s agents, officers, directors, and employees or thirdparties under their control in the event ExxonMobil chooses not to act againstany apparent or threatened Misuse of any of the Proprietary Marks or if anythird party challenges the right of ExxonMobil or BFA Holder to use any of theProprietary Marks.

 

(d)                                 BFA Holdershall not, and shall cause its Franchise Dealers not to, sell non-Exxon orMobil-branded motor fuels under any Proprietary Mark, including withoutlimitation, any Exxon or Mobil-identified canopy or at any fueling island whereBFA Holder or a Franchise Dealer is selling Products. As used in this Section, “non-Exxonor Mobil-branded motor fuels” shall not be construed to apply to gasohol orother synthetic motor fuels of similar usability, to the extent 

 

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provided for in the Gasohol Competition Act of 1980,Pub. L.96-493 or renewable fuels as defined in Section 2807 of thePetroleum Marketing Practices Act; provided however, that BFA Holder and itsFranchise Dealers shall label such product so as to ensure that consumers arenot confused that such product is an Exxon or Mobil-branded motor fuel.

 

(e)                                  Withoutaffecting BFA Holder’s obligations under Section 3(d), if BFA Holder orany Franchise Dealer offers non-Exxon or Mobil-branded motor fuels at a BFAHolder Branded Outlet, BFA Holder agrees to protect, and cause its FranchiseDealer(s) in question to protect, the identity of the Products and theProprietary Marks by all reasonable methods, which would prevent customer confusionor misinformation. BFA Holder agrees to conform, and cause its FranchiseDealers to conform, to ExxonMobil’s de-branding requirements as outlined inExhibits 9A and 9B, as same may be revised from time to time, including but notlimited to posting of ExxonMobil approved signs which clearly distinguish theProducts from non-Exxon or Mobil-branded motor fuels, disclaiming any productliability of ExxonMobil for damage resulting from use of non-Exxon orMobil-branded motor fuels, and removing or covering any signs which maymislead, confuse, or misinform any customers or reduce their goodwill towardany Proprietary Mark. In addition, BFA Holder agrees to comply, and cause itsFranchise Dealers to comply, with any additional steps beyond the ExxonMobil de-brandingrequirements set forth in any applicable law, ordinance or regulation regardingthe labeling of petroleum products.

 

(f)                                    In furtheranceof its obligations as set forth in this Section, BFA Holder agrees that it willfor itself, and as to any of its Franchise Dealers, require of such FranchiseDealers that they will, while identifying the source of the Products sold atany BFA Holder Branded Outlet, comply with the provisions of this Section. Suchassistance includes, but is not limited to, the authorization to ExxonMobil tocommence 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 Holdershall have neither the right to use or display at marinas, nor the right toauthorize or permit the use or display at marinas by Franchise Dealers of, anyProprietary Mark and shall not sell, and shall cause its Franchise Dealers notto sell, Products at marinas.

 

(h)                                 To permitExxonMobil to carry out its rights to protect its Proprietary Marks fromdiminution, dilution, or destruction by misuse or failure by those to whompermission to display them has been granted under this Agreement, BFA Holderagrees that upon request by ExxonMobil it will provide ExxonMobil with a listof the names and addresses of Franchise Dealers to whom BFA Holder has providedany Proprietary Mark and where such BFA Holder Branded Outlets are displayingsuch Proprietary Marks.

 

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

 

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

 

(k)                                  BFA Holdershall, and shall cause its Franchise Dealers to, immediately stop using theProprietary 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 orextended; or

 

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

 

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

 

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

 

(l)                                     BFA Holder’suse of any of the Proprietary Marks in conjunction with any uniforms, businesscards or business stationary at all times shall be subject to and in accordancewith the terms of this Agreement and all standards set forth by ExxonMobil orits Affiliates, as such standards may be amended by ExxonMobil or itsAffiliates, in their sole discretion, from time to time.  All uniforms used in connection with theBusinesses bearing any of the Proprietary Marks shall be purchased solely andexclusively from an ExxonMobil approved vendor.

 

(m)                               BFA Holderacknowledges that ExxonMobil (or Exxon Mobil Corporation or any of itsAffiliates 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 FranchiseDealer any ownership interest or right in any of the Proprietary Marks. Allgoodwill resulting from the use of the Proprietary Marks by BFA Holder or itsFranchise Dealers shall inure to the benefit, and is the property, ofExxonMobil (or its Affiliates as the case may be). ExxonMobil may, at any timeor from time to time, change or substitute any Proprietary Marks used inconnection with the Products or any Business. In case of any change orsubstitution, BFA Holder shall immediately use, and cause its Franchise Dealersto immediately use, the Proprietary Marks as changed.

 

(n)                                 BFA Holderhereby acknowledges that failure on the part of BFA Holder or its FranchiseDealer(s) to use any Proprietary Mark in accordance with the provisions ofthis Agreement will cause irreparable injury to ExxonMobil and that any courtof competent jurisdiction may, at the request of ExxonMobil, enforce theprovisions of this Agreement by the entry of a temporary or permanent injunctionagainst BFA Holder and in favor of ExxonMobil. BFA Holder agrees not to contest the appropriateness of injunctiverelief but may contest whether it has failed to use the Proprietary Marks inaccordance with the provisions of this Agreement.  BFA Holder will incorporate in its agreementswith each Franchise Dealer the undertakings and obligations provided in thisAgreement (including this Section 3). BFA Holder agrees to immediately notify ExxonMobil of any FranchiseDealer failing to comply with any such undertaking or obligation and agrees toassist ExxonMobil in its enforcement thereof.

 

(o)                                 In order tofoster the continued public acceptance of the Proprietary Marks and to protectthe 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 orcondition which will significantly impact the operation of any BFA HolderBranded Outlet or which has resulted in or may result in significant mediaexposure related to any BFA Holder Branded Outlets.

 

**4.****                                     ****QUALITY, GRADE, SPECIFICATION, OR NAME OF PRODUCT; QUALITY ASSURANCEPROCEDURES.**

 

(a)                                  ExxonMobilshall 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 orany Proprietary Marks covered by this Agreement.  ExxonMobil may also, in its sole discretionand from time to time, change or alter the quality or specification of any ofthe Products covered by this Agreement. In the event that a certain grade, quality or specification of motorfuels is offered in one of the states within the Designated Geographies by morethan thirty-five percent (35%) of the then existing non-Exxon or Mobil brandedretail outlets that is not covered by this Agreement at that time, BFA Holdershall have the right to request that ExxonMobil consent to a change oralteration in, or addition to, the grades, quality or specifications of theProducts to offer such grade, quality or specification of motor fuel in therelevant state within the Designated Geographies, and ExxonMobil shall notunreasonably withhold its consent to any such request.

 

(b)                                 ExxonMobil hasprovided BFA Holder a copy of “QUALITY CONTROL PROCEDURES FOR GASOLINES ANDDIESEL FUEL” attached as Exhibit 10. This is the same document furnished to Traditional Wholesalers who arepurchasing motor fuel product directly from ExxonMobil.  BFA Holder agrees to store, handle, sell and dispenseall fuel sold through BFA Holder Branded 

 

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Outlets in compliance with all the procedures andspecifications set out in Exhibit 10 and to procure the compliance of itsFranchise Dealers, notwithstanding the fact that BFA Holder is not purchasingmotor fuel from ExxonMobil.  ExxonMobilreserves the right to revise the procedures and specifications at any time andBFA Holder agrees that it will, upon written notice of such revision,immediately begin compliance with the revised procedures and specifications andwill procure compliance of its Franchise Dealers.  In the event BFA Holder fails to comply withthis Section, ExxonMobil may, without limitation to any other remediesavailable to ExxonMobil, engage the services of an outside contract firm toperform sampling, testing and reporting. The fees, costs and expenses of such outside contract firm shall beborne solely by BFA Holder.

 

(c)                                  Time is of theessence in complying with this Section 4. BFA Holder is obligated to take commercially reasonable steps to mitigateany potential losses or damage resulting from any product quality defects.  BFA Holder’s notice of consumer qualityclaims should be sent to the ExxonMobil Business Support Centre Canada, ULC,Attn: Branded Wholesaler Contract Team Lead, P.O. Box 2245, Buffalo, NY14240-2245.

 

**5.****                                     ****PRODUCT DISTRIBUTION.**

 

(a)                                  ExxonMobil andBFA Holder acknowledge and agree that this is not a product sales or supplyagreement.  ExxonMobil has no obligationunder this Agreement or otherwise to supply BFA Holder with either branded orunbranded motor fuel products or its proprietary additive package, includingwithout limitation, gasoline and diesel. BFA Holder is solely responsible for securing and paying for BaseProduct and the additive package, which meet all federal, state, and localregulatory and product quality standards in effect for motor fuels offered forsale through retail outlets in the Designated Geographies.  Base Product must also meet ExxonMobilquality specifications as more specifically set out in Exhibit 3 (asconfirmed by testing as described in Exhibit 3).  BFA Holder shall participate in ExxonMobil’sannual Marker Program in order to confirm compliance with the requirements ofthis Agreement and ExxonMobil’s standards.

 

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

 

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

 

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

 

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

 

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**6.****                                     ****EXXONMOBIL PROGRAMS.**

 

(a)                                  ExxonMobil andBFA Holder expressly acknowledge and agree that the arrangement contemplated byand set forth in this Agreement is materially different from the arrangementthat ExxonMobil has with its branded wholesalers throughout the country whopurchase motor fuel directly from ExxonMobil (hereinafter referred to as “TraditionalWholesalers”).  BFA Holder acknowledgesthat it has been advised and understands that it will not be eligible forvarious types of financial assistance or support programs, including withoutlimitation Brand Incentive Programs (BIP), Image Assistance Programs,Speedpass Rebate Program and Brand Standard Program, that are available toTraditional Wholesalers.  BFA Holderspecifically acknowledges and agrees that ExxonMobil has absolutely noobligation of any kind to offer BFA Holder any programs or services notexpressly provided for in this Agreement and BFA Holder further acknowledgesthat this fact constitutes a material inducement for ExxonMobil to enter intothis Agreement.

 

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

 

(c)                                  BFA Holder willbe eligible to participate in the ExxonMobil programs listed immediately belowon the same basis as Traditional Wholesalers:

 

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

(2)                                  Card marketing

(3)                                  Education Alliance

(4)                                  Training

(5)                                  Uniform

(6)                                  Station Locator

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

 

BFAHolder will also be eligible to participate in those ExxonMobil programsoffered from time to time to another “BFA Holder” under a separate brand feeagreement in the Designated Geographies.

 

(d)                                 BFA Holderacknowledges and agrees that all programs referenced in Sections 6(b) and6(c) hereof are subject to change or cancellation at ExxonMobil’s solediscretion and that ExxonMobil may, from time to time and in its discretion,add new or existing programs to the required programs list or the eligibleprograms list.  BFA Holder furtheracknowledges that nothing set forth in this Agreement obligates ExxonMobil toprovide (or continue to provide) support for any such program and that suchsupport is provided at ExxonMobil’s discretion.

 

**7.****                                     ****BRAND FEES.**

 

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

 

(a)                                  BFA Holder’sDirect Served Business.  Withrespect to the Direct Served Outlets, (i) the “Brand Fee” during the firstten (10) years of the Term of this Agreement shall equal the 10 Year BrandFee, calculated under Section 7(a)(i); and (ii) the “Brand Fee” forthe Direct Served Outlets during the final five (5) years of the Term ofthis Agreement shall equal an amount agreed to between the 

 

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

 

(i)            Forpurposes of this Section 7(a)(i):

 

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

 

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

 

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

 

Example calculation: **

 

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

 

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

 

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

 

“Initial Base Outlets” means 221.

 

“Initial Total Volume” means the total volumeof 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 ServedOutlet that is supplied motor fuel by BFA Holder for sale under any brand otherthan Exxon or Mobil (excluding in each case any such outlet that was debrandedby ExxonMobil pursuant to Section 2(e)(3) hereof), and (ii) anyformer Direct Served Outlet sold by BFA Holder to a third party for continuedpetroleum use that sells motor fuel under any brand other than Exxon or Mobil.

 

(ii)           Withinsix (6) months before the end of tenth (10th) year of the Term of thisAgreement, ExxonMobil and BFA Holder agree to engage in good faith negotiationsregarding an adjustment to the Brand Fee for the final five (5) years ofthe Term of this Agreement for BFA Holder’s Direct Served Outlets; provided,however, that such obligation shall not require either party to reachdefinitive agreement on such adjustment. In the event that the parties are unable to mutually agree on anadjustment 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 ofthis Agreement, BFA Holder 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Initial Recalculated Base Outlets” means thetotal 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 ServedOutlet that is supplied motor fuel by BFA Holder for sale under any brand otherthan Exxon or Mobil (excluding in each case any such outlet that was debrandedby ExxonMobil pursuant to Section 2(e)(3) hereof), and (ii) anyformer Direct Served Outlet sold by BFA Holder to a third party for continuedpetroleum use that sells motor fuel under any brand other than Exxon or Mobil.

 

“Recalculated Base Brand Fee” means:

 

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

 

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

 

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

 

(2)           Dividethe Initial Total Volume by the average gallons of Product sold perRecalculated Base Outlet determined pursuant to Paragraph (1) above, andround the resulting quotient up to the nearest whole number, in order tocalculate the number of outlets necessary to sell the Initial TotalVolume.  [For example, **]

 

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

 

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

 

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

 

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

 

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

 

“Recalculated Base Outlets” means, for the11th year of this Agreement, the Initial Recalculated Base Outlets.  For each subsequent year during the remainingTerm of this Agreement, “Recalculated Base Outlets” shall mean the greater of (i) theRecalculated Base Outlets (under this definition) for the immediately prioryear, and (ii) the Initial Recalculated Base Outlets plus thecumulative number of Direct Served Outlets added under this Agreement from theRecalculation Date up to the  AnnualRecalculation Date, minus the cumulative number of Closed Direct ServedOutlets from the Recalculation Date up to the Annual Recalculation Date.

 

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

 

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

 

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

 

(iii)          Ifa 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 beenadded pursuant to the terms of this Agreement as of any Annual RecalculationDate, then in addition to the 10 Year Brand Fee or Adjusted Brand Fee, as maybe applicable, BFA Holder shall pay to ExxonMobil an annual fee in an amountequal to $** for each such Direct Served Outlet during each of the first two (2) fullyears of the Term during which such site is subject to this Agreement, suchamount to be paid in accordance with Section 8 below.  Notwithstanding the foregoing, BFA Holdershall not be required to pay to ExxonMobil such additional fees for any DirectServed Outlet that became a Direct Served Outlet as a result of BFA Holder’sacquisition of a branded wholesaler that previously supplied Products to suchDirect Served Outlet, whether by merger or by acquisition of all of the brandedwholesaler’s stock or substantially all of its assets.

 

Thirty (30) days prior to each anniversary of theEffective Date, BFA Holder shall deliver to ExxonMobil a statement showing theadjustment to the number of Direct Served Outlets as of the AnnualRecalculation Date.  ExxonMobil shallhave the right to review and approve the adjustment to the number of DirectServed Outlets.  Any dispute between theparties hereto relating to the adjustment shall be resolved in accordance with Section 39of this Agreement, without regard to the amount in controversy limitation setforth in Section 39(b)(i).

 

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

 

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

 

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

 

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

 

(iii)          Ifa 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 addedpursuant 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 equalto $** for each such Sub-Jobber Outlet during each of the first two (2) fullyears of the Term during which such site is subject to this Agreement, suchamount to be paid in accordance with Section 8 below.  Notwithstanding the foregoing, BFA Holdershall not be required to pay to ExxonMobil such additional fees for anySub-Jobber Outlet that (a) was assigned to BFA Holder by ExxonMobil, ifthe fee payable pursuant to Section 7(b)(ii) has already been paid toExxonMobil or (b) became a Sub-Jobber Outlet as a result of BFA Holder’sacquisition of a branded wholesaler that indirectly supplied Products to suchSub-Jobber Outlet, whether by merger or by acquisition of all of the brandedwholesaler’s stock or substantially all of its assets.

 

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

 

(c)           Onor before February 15 of each year, BFA Holder will provide ExxonMobil anannual summary that details the volume of Product sold by each BFA HolderBranded Outlet for the immediately preceding calendar year.  The form, content, and supportingdocumentation shall be as specified by ExxonMobil from time to time.  ExxonMobil, in its sole discretion, shallhave the right to audit BFA Holder’s records (as well as any applicableFranchisee Dealer records) at any time for the purpose of verifying Productvolume.  BFA Holder agrees to fullycooperate, and to cause each Franchise Dealer to fully cooperate, with anyaudit request.

 

**8.****                                     ****PAYMENT AND CREDIT.**

 

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

 

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subsequent month during the Term shall be made onthe 15th day of each month immediately preceding themonth to which such brand fee applies (for example, brand fees for March 2010operations shall be paid by BFA Holder to ExxonMobil no later than February 15,2010).  In the event any payment date isnot a Business Day, then the payment shall be made on the prior BusinessDay.  In addition, on the Effective Date,BFA Holder shall pay to ExxonMobil for each BFA Holder Branded Outlet that isparticipating (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 financialassistance that ExxonMobil has paid under the BIP (whether through a directpayment, set-off, credit or other indirect payment) with respect to such retailoutlet times (the number of days remaining in the branding obligation withrespect to such retail outlet divided by the total number of days of thebranding obligation with respect to such retail outlet) and (ii) thecompensatory dollar amount collectable as of the Effective Date with respect tosuch retail outlet in the event of a default under the BIP.  Notwithstanding the foregoing, BFA Holderagrees that ExxonMobil has the ongoing right to periodically give BFA Holdernotice of a different method, time, or place of payment.

 

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

 

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

 

(d)                                 If requested byExxonMobil, BFA Holder shall provide to ExxonMobil and maintain security in anamount not to exceed three (3) months of the Brand Fees calculatedpursuant to Section 7 and in such forms, in either case as ExxonMobil mayspecify in its sole discretion (“Security”), including without limitation aletter of credit, cash deposit, or assignment, mortgage or pledge of cash,savings accounts or real estate or other collateral which is acceptable toExxonMobil.  ExxonMobil may use, withoutprior notice or demand, any or all of the Security to set off or satisfy all orany part of any indebtedness or obligation of BFA Holder to ExxonMobil or itsAffiliates whether arising under this Agreement, any other agreement or fromany other business transaction between the parties.  If ExxonMobil uses any Security to satisfyall or any part of any such indebtedness or obligation, BFA Holder shallimmediately provide ExxonMobil with additional security, as directed byExxonMobil, to replace the Security used by ExxonMobil.  Following non-renewal or termination of thisAgreement and the Franchise Relationship, ExxonMobil shall return to BFAHolder, in accordance with ExxonMobil’s procedures then in effect, anyremaining portion of the Security not required to satisfy all or any part ofany indebtedness or other obligation of BFA Holder to ExxonMobil or itsAffiliates howsoever arising.  AtExxonMobil’s request at any time during the Term, BFA Holder shall execute anddeliver to ExxonMobil a security agreement, financing statement, mortgage, deedof trust or other documentation as ExxonMobil may specify in such form and withsuch terms as ExxonMobil may specify, to establish or perfect ExxonMobil’ssecurity interest in the Security.

 

**9.****                                     ****CARD ADMINISTRATION.**

 

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

 

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

 

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

 

(c)                                  If Third PartyIssuer(s) agrees to pay BFA Holder for ExxonMobil Card or other card salestickets submitted for payment in accordance with the terms of the applicablecard guide or agreement, BFA Holder will look solely to Third Party Issuer(s) andnot to ExxonMobil for such payment. Should ExxonMobil elect to (or otherwise) pay all or any portion of anycard sales ticket charged back by Third Party Issuer(s) to BFA Holder,upon demand from ExxonMobil, BFA Holder shall immediately reimburse ExxonMobilfor any such payments made by ExxonMobil.

 

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

 

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

 

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

 

**10.****                              ****TAXES.**

 

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

 

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

 

**11.****                              ****FAILURE TO PERFORM.**

 

(a)                                  Any delays inor failure of performance of either party hereto shall not constitute defaulthereunder or give rise to any claims for damages if and to the extent that suchdelay or failure is caused by occurrences beyond the control of the partyaffected, including, but not limited to, acts of God or the public enemy;expropriation or confiscation of facilities; compliance with any order orrequest of any governmental authority; acts of war, terrorism, rebellion orsabotage or damage resulting therefrom; embargoes or other import or exportrestrictions; 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 anyother causes whether or not of the same class or kind as those specificallyabove 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 orprovide against; provided that such causes shall exclude specifically changesin the national or world economy or financial markets or changes in generaleconomic conditions or the economic conditions of the party failing toperform.  A party whose performance isaffected by any of the causes set forth in the preceding sentence shall giveprompt written notice thereof to the other party.  Neither party hereto shall be obligated tosettle strikes, differences with workmen or government claims by acceding toany demands when in the discretion of the party whose performance is interferedwith, it would be inadvisable to accede to such demands.

 

(b)                                 Nothing in thisSection shall excuse BFA Holder from making payment when due for allcharges under this Agreement.

 

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

 

**12.****                              ****NEW OR CHANGED REGULATIONS.**

 

Theparties 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 thisAgreement by ExxonMobil affecting the distribution of Product, provided forunder this Agreement insofar as said Regulations affect BFA Holder, ExxonMobilor ExxonMobil’s Affiliates or suppliers. If the effect of any change in anyRegulation or of any new Regulation (a) is not covered by any otherprovision of this Agreement, and (b) in the affected party’s judgment,either (1) has an adverse effect upon the party (or if ExxonMobil, uponExxonMobil’s Affiliates or suppliers) or (2) increases the risk to theaffected party of performance under this Agreement, the affected party mayrequest re-negotiation of the terms of this Agreement. Such right to requestre-negotiation or, upon failure to agree, to terminate, shall withoutlimitation also be available to ExxonMobil if Regulations:

 

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

 

(b)                                 AffectExxonMobil’s liability.

 

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

 

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**13.****                              ****MARKET DEVELOPMENT AND REPRESENTATION.**

 

(a)                                  A primarybusiness purpose of ExxonMobil is to optimize effective and efficient distributionand representation of Products through planned market and image development. Infurtherance of this business purpose, BFA Holder and ExxonMobil agree asfollows:

 

(1)                                  While it is not a requirement of this Agreement, ExxonMobil believes thatit is important for BFA Holder to have, and periodically update, a marketdevelopment plan. The plan should provide for the selection and acquisition, orotherwise securing by BFA Holder for the purposes of branding under thisAgreement, of “strategic sites” (as defined from time to time by ExxonMobil) asBFA Holder Branded Outlets, and should provide for the development of optimalfacilities, effective operating practices, and the necessary financial andmanagement 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 besold or supplied, Products to any person or entity then currently having a PMPAFranchise Agreement directly with ExxonMobil or any of its Affiliates, whichFranchise 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 orcontrolled by the person or entity having the aforementioned PMPA FranchiseAgreement directly with ExxonMobil or any of its Affiliates.  An example of an entity having a PMPAFranchise Agreement pertaining to a specific retail outlet is a “direct serveddealer”.

 

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

 

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

 

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

 

(2)                                  Permanent building which is structurally sound and complies with allfire, 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 MobilBranded Outlets, all grades of Mobil-branded motor gasoline that may be in theMobil product slate, and, at the Operated Exxon Branded Outlets and theFranchised Exxon Branded Outlets, all grades of Exxon-branded motor gasolinethat may be in the Exxon product slate, each such slate as may be set by ExxonMobiland its Affiliates from time to time (consisting of three (3) grades eachfor the Mobil product slate and the Exxon product slate as of the EffectiveDate); and

 

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

 

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

 

**14.****                              ****SERVICES BY EXXONMOBIL.**

 

(a)                                  ExxonMobil mayat its sole discretion, from time to time, make available to BFA Holder, orassist BFA Holder in obtaining, the following:

 

(1)                                  Standard plans, specifications, equipment, decor and signs identifiedwith Exxon or Mobil-branded, as the case may be, retail outlets as ExxonMobilmakes 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 contractorsfranchise-management training as ExxonMobil makes available to TraditionalWholesalers from time to time; and

 

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

 

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

 

**15.****                              ****PROMOTION OF PRODUCTS.**

 

(a)                                  BFA Holderagrees to diligently promote and cause its Franchise Dealers to diligentlypromote the sale of Products, including through advertisements, all inaccordance with the terms of this Agreement. BFA Holder hereby acknowledges and agrees that, notwithstanding anythingset forth herein to the contrary, to insure the integrity of ExxonMobiltrademarks, products and reputation, ExxonMobil shall have the authority toreview and approve, in its sole discretion, all forms of advertising and salespromotions that will use media vehicles for the promotion and sale of anyproduct, merchandise or services, in each case that (i) uses orincorporates any Proprietary Mark or (ii) relates to any Business operatedat a BFA Holder Branded Outlet. Furthermore, for any significant advertising campaign, sponsorshipand/or promotion, BFA Holder shall submit in advance to ExxonMobil or itsdesignee, for its written approval, all materials prepared by or for BFAHolder.  These materials may include, butare not limited to, any media (including TV, radio, internet or print),professional or collegiate sports affiliations, and cultural or civicsponsorships that would have regional or national reach and are associated withany ExxonMobil brand, whether directly or indirectly.  Approval will be granted (or not) within ten (10) businessdays from ExxonMobil’s receipt of a request from BFA Holder.  If no written approval is received fromExxonMobil within the applicable ten-business-day period, then the requestshall be deemed denied.  BFA Holder shallexpressly require all Franchise Dealers to (a) agree to such review andcontrol by ExxonMobil and (b) comply with the notice requirements setforth in this Section.  BFA Holder shallbe responsible for compliance (both by BFA Holder and by its Franchise

 

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

 

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

 

**16.****                              ****CUSTOMER SERVICE AND COMPLAINTS.**

 

(a)                                  While using anyProprietary Marks, BFA Holder agrees:

 

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

 

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

 

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

 

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

 

(b)                                 BFA Holder alsoagrees that, as to any of its Franchise Dealers, BFA Holder will include in itsarrangements with such Franchise Dealers the undertakings provided in this Section inrespect of each Franchised Branded Outlet and will undertake the enforcementthereof. BFA Holder further agrees that ExxonMobil may revoke the right of BFAHolder to display Proprietary Marks at any Operated Branded Outlet(s), or topermit 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 violationof this Section.

 

**17.****                              ****TRAINING.**

 

Duringthe Term, the BFA Holder, if an individual, or its designated Key Person (or adesignee of such Key Person acceptable to ExxonMobil), shall attend andsatisfactorily complete an initial franchise-management training program as maybe designated by ExxonMobil.  BFA Holdershall pay all expenses incurred, directly or indirectly, by BFA Holder inconnection 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, orany ExxonMobil designee, reasonable fees or charges that ExxonMobil, or suchdesignee, 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 andcommunications systems in the operation of the Businesses is of criticalimportance. BFA Holder further acknowledges that technology and 

 

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communications systems are expected to change over time requiringperiodic addition, replacement, or updating of equipment or systems used in theBusinesses.

 

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

 

(a)                                  BFA Holdershall enter into a written agreement with each Franchise Dealer. The agreementmust:

 

(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 asspecified in this Agreement, including without limitation, complying with theminimum image requirements, complying with the insurance requirements, andallowing entry to its respective Franchised Branded Outlet(s) for the purposesspecified in this Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(2)                                  For all BFA Holder Branded Outlets approved by ExxonMobil under Section 2(e) onor 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-conformingagreements under Section 19(b), a reasonable period of time, not to exceedninety (90) days, from the date of the expiration or other termination of thatagreement.

 

(d)

 

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

 

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discretion, to assign toBFA Holder existing branded wholesaler agreements between ExxonMobil and itsbranded wholesalers.  In the event thatExxonMobil elects to assign an existing branded wholesaler agreement to BFAHolder, BFA Holder shall assume and accept all of ExxonMobil’s rights andobligations under any such branded wholesaler agreement arising after theassignment thereof to BFA Holder and all retail outlets subject to the brandedwholesaler agreement shall thereafter become Sub-Jobber Outlets subject to theterms and conditions of this Agreement. BFA Holder acknowledges and agrees that certain retail outlets subjectto branded wholesaler agreements with ExxonMobil that may be assigned to BFAHolder are participants in one or more of ExxonMobil’s imaging incentiveprograms, which includes, but is not limited to: Brand Incentive Program,Modernization Assistance Program, Image Enhancement Program, Brand GrowthProgram, and the Image Program of Mobil Oil Corporation (all hereby known asthe “BIP”), and that Purchaser shall assume all of ExxonMobil’s obligationswith respect to the BIP at any such retail outlet that participates in the BIPas of the date of assignment of the branded wholesaler agreement fromExxonMobil to BFA Holder.  In addition,subject to Section 19(d)(2) below, for each retail outlet subject toa branded wholesaler agreement that ExxonMobil assigns to BFA Holder that isparticipating 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 brandedwholesaler agreement to BFA Holder and the average annual throughput volume forall of the retail sites subject to that branded wholesaler agreement are lessthan 600,000 gallons on a trailing twelve month basis, then ExxonMobil and BFAHolder shall discuss and come to mutually agreeable terms on the amount forwhich BFA Holder shall be required to pay ExxonMobil with respect to financialassistance that ExxonMobil has paid under the BIP.

 

**20.****                              ****INSURANCE REQUIREMENTS.**

 

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

 

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

 

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

 

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

 

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

 

(4)                                  Workers Compensation and Employers Liability insurance for all BFA Holder’semployees engaged in performing services or similar social insurance, whererequired by federal, state, county or local laws, statutes, ordinances, codes,regulations, rules, orders, or permits which may be applicable to BFA Holder’semployees with a waiver of subrogation and/or contribution against ExxonMobilwhere 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 atleast one**million dollars ($1,000,000) on acontinuous and uninterrupted basis insuring BFA Holder for environmental legalliabilities arising out of, but not limited to, the sale of motor fuel productsand lubricants, ownership and operation of the Businesses, retail motor fuelstores and the premises at each Operated Branded Outlet.

 

(b)                                 BFA Holder maymeet its obligations under this Agreement for environmental impairmentinsurance coverage for underground storage tanks under Section 20(a)(5) byparticipation in an Environmental Protection Agency (“EPA”) approved statefinancial assurance fund or other EPA-approved method to demonstrate financialresponsibility or by satisfying any of the other financial assurance testrequirements of the EPA’s Financial Responsibility Regulations (40 CFR Part 280).  Upon request by ExxonMobil, BFA Holder shallpromptly furnish ExxonMobil with documentation satisfactory to ExxonMobilevidencing:

 

(1)                                  BFA Holder’s participation in a state approved financial assurance fundor 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 inan approved state financial assurance fund or other EPA-approved method todemonstrate financial responsibility or stops meeting the EPA’s financialassurance test requirements, as the case may be, BFA Holder promptly shallobtain the insurance required under Section 20(a)(5) and provideExxonMobil with evidence of insurance in accordance with Section 20(a)(5).  The term “underground storage tank” includesall piping, lines and****accessoriesconnected to or made a part of a petroleum underground storage tank.

 

(c)                                  ExxonMobil mayfrom time to time require BFA Holder, and/or cause BFA Holder to require any ofits Franchise Dealers, to carry additional types and amounts of insurancecoverage, including modifications to existing insurance under this Section, asExxonMobil considers reasonable in the circumstances.

 

(d)                                 Each policy ofinsurance described in this Section 20 shall name ExxonMobil OilCorporation as additional insured (except Workers Compensation and EmployersLiability) and shall be primary as to all other policies that may providecoverage.  BFA Holder shall pay, andshall cause its Franchise Dealers to pay, all premiums and assessments chargedfor the insurance policy or policies when due.

 

(e)                                  BFA Holdershall comply, and cause its Franchise Dealers to comply, with all policy termsand conditions and the directions of the insurance carrier, its ratings bureauand the National Fire Protection Association. BFA Holder, or its Franchise Dealer(s) as the case may be, shallbear 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 applicationof a deductible clause or to BFA Holder’s, or 

 

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the Franchise Dealer’s, failure to observe the termsand conditions of the insurance coverage. BFA Holder shall indemnify and defend ExxonMobil for all theseunrecoverable claims, losses or damages, including without limitation anyarising from Franchise Dealers.  Withoutlimiting the general requirements of this Section 20, ExxonMobil mayreject any policies which contain deductibility clauses, conditions orexclusions, or that are underwritten by insurance companies, that areunacceptable in ExxonMobil’s reasonable determination.  Upon rejection of a policy, BFA Holderpromptly shall procure, and cause its Franchise Dealer(s) to promptlyprocure, a policy with provisions and by an underwriter reasonably acceptableto ExxonMobil.  ExxonMobil’s receipt oracceptance of any policy or evidence of insurance is not a waiver by ExxonMobilof any requirement under this Section 20 or of its right to reject the policyas unacceptable and does not affect BFA Holder’s, or its Franchise Dealer’s asthe case may be, liability for claims, losses or damages that are or would havebeen covered by BFA Holder’s, or such Franchise Dealer’s, full compliance withthis Section 20.

 

(f)                                    During theTerm, each insurance policy and certificate of insurance of BFA Holder mustspecify the insurance will not be terminated, canceled or materially changedwithout 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 thetermination, cancellation or change of that policy, procure a new or substitutepolicy containing at least the same coverage as the previous policy.  The new policy must begin coverage prior tothe expiration of the previous policy or prior to the effective date of thematerial change, as applicable.  BFAHolder shall cause all of its Franchise Dealers to comply with this Section 20(f) withrespect to each insurance policy and certificate of insurance.

 

(g)                                 Prior to theEffective Date, and at any time upon request by ExxonMobil, BFA Holder shallfurnish 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 (orthe relevant section of BFA Holder’s franchise agreement with the FranchiseDealer 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.  Uponrequest by ExxonMobil, BFA Holder shall furnish to ExxonMobil or itsrepresentatives copies of the required insurance policies.

 

(h)                                 Nothing in thisSection 20 in any way limits or waives BFA Holder’s legal or contractualresponsibilities to ExxonMobil or others.

 

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

 

(j)                                     Withoutlimiting any other remedy available to ExxonMobil, including termination ornon-renewal of this Agreement and the Franchise Relationship, ExxonMobil maydebrand any BFA Holder Branded Outlet(s) that fails to comply with theprovisions of this Section 20.

 

(k)                                  If BFA Holder,for any reason, fails to procure and maintain required insurance satisfactoryto ExxonMobil, ExxonMobil may, at ExxonMobil’s election and upon notice to BFAHolder, immediately procure the required insurance.  Upon ExxonMobil’s request, BFA Holderpromptly shall furnish ExxonMobil with all information relating to BFA Holderor the Businesses requested by ExxonMobil in connection with the procurement ofany required insurance.  Upon writtendemand, BFA Holder shall immediately reimburse ExxonMobil for the costs ofprocuring the insurance.  ExxonMobil’sright to procure insurance under this Section 20 may not be construed asan obligation by ExxonMobil to procure any insurance and does not precludeExxonMobil from exercising other rights or remedies it may have under thisAgreement including debranding of the BFA Holder Branded Outlet(s) inquestion and termination or non-renewal of this Agreement and 

 

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the Franchise Relationship.  ExxonMobil’s election not to procure anyinsurance 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 andtermination or non-renewal of this Agreement and the Franchise Relationship.

 

(l)                                     ExxonMobil isentitled to the full coverage of any insurance procured by BFA Holder, itsFranchise Dealers or ExxonMobil under this Section 20 but in no event lessthan the minimum coverage required by Section 20(a).  The minimum limits specified in Section 20(a) donot limit or affect ExxonMobil’s right to full insurance coverage or ExxonMobil’srights under Section 21.  If BFAHolder does not own or lease transport to carry the Products, BFA Holder shallcause any person engaged by BFA Holder to carry the Products at all times tomaintain insurance at levels required by the Hazardous Materials TransportationAct.

 

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

 

**21.****                              ****INDEMNIFICATION.**

 

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

 

(b)                                 BFA Holderassumes the risk of and sole responsibility for and agrees to defend (withcounsel acceptable to ExxonMobil, unless such defense, but not ExxonMobil’sdefense 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’sAssociates”) from and against any and all expenses, costs (including, withoutlimitation, professional fees), penalties, fines (without regard to the amountof such fines), liabilities, claims, demands and causes of action, at law or inequity (including, without limitation, any arising out of the ComprehensiveEnvironmental Response Compensation and Liability Act (CERCLA), the ResourceConservation 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’sAssociates by any person for injuries, death, loss, or damage of any kind orcharacter to person, property, or natural resources, by whomever suffered orasserted (including without limitation BFA Holder, its Franchise Dealers ortheir agents, contractors, employees, invitees, licensees, and/or trespassers),resulting from, related to or arising out of the operations, conduct orbusiness of BFA Holder or its Franchise Dealers or the condition of any realproperty, fixtures, tanks, equipment or personal property of BFA Holder or itsFranchise 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 Sections11(c) and 24(b) of this Agreement will fully apply and BFA Holderwill fulfill its obligations thereunder EVEN IF EXXONMOBIL OR EXXONMOBIL’SASSOCIATES ARE JOINTLY OR CONCURRENTLY NEGLIGENT, (WHETHER BY ACT OR OMISSION)OR JOINTLY OR CONCURRENTLY 

 

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

 

**22.****                              ****TRANSFER/ASSIGNMENT.**

 

ThisAgreement shall not be transferred or assigned or sold by BFA Holder in wholeor in part, directly or indirectly (including, without limitation, as a resultof any change in control of BFA Holder or any of its Affiliates), except withthe prior written consent of ExxonMobil, which consent (i) as toMassachusetts, shall be provided in accordance with M.G.L.A. 93E § 4A orany subsequent governing law, (ii) as to Rhode Island, will not beunreasonably withheld in accordance with Rhode Island Statute § 5-55-4 orany subsequent governing law; or (iii) as to New Hampshire, ExxonMobil maywithhold or delay in its sole discretion. BFA Holder shall furnish to ExxonMobil such information as may bereasonably required for ExxonMobil to evaluate the character, financialability, and business experience of any proposed assignee.  Notwithstanding the foregoing, BFA Holdershall be permitted to assign or sublicense its rights under this Agreement inwhole or in part to an Affiliate without the consent of ExxonMobil.  Such information shall be provided in atimely fashion that allows ExxonMobil to determine whether it will consent tothe proposed assignment within the time period, if any, specified in anyapplicable state law.  ExxonMobil mayassign this Agreement in whole or in part upon ten (10) days prior writtennotice to BFA Holder.  Notwithstandinganything herein to the contrary, a change in control of BFA Holder or any ofits Affiliates shall not include transfers of equity amongst the existingholders thereof or their respective heirs or trusts for estate planningpurposes.

 

**23.****                              ****WAIVER.**

 

Nowaiver by either party of any breach of any of the covenants or conditionsherein contained to be performed by the other party shall be construed as awaiver of any succeeding breach of the same or any other covenant orcondition.  All waivers must be inwriting.

 

**24.****                              ****LAWS.**

 

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

 

(b)                                 BFA Holder willdefend (with counsel acceptable to ExxonMobil, unless such defense, but notExxonMobil’s defense costs, is waived by ExxonMobil) indemnify, release andhold harmless ExxonMobil and ExxonMobil’s Associates from and against any andall 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, withoutlimitation, any arising out of the Comprehensive Environmental ResponseCompensation and Liability Act (CERCLA), the Resource Conservation and RecoveryAct (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 toterminate this Agreement and the Franchise Relationship.

 

**25.****                              ****NOTICES.**

 

Allwritten notices required or permitted to be given by this Agreement shall begiven only by personal delivery (to an officer or manager in the case ofExxonMobil), certified mail, express mail, air courier, telegram or facsimiletransmission and shall be deemed given respectively when the notice ispersonally delivered or deposited in the mail or with the air courier serviceor telegraph company, postage or charges prepaid, with confirmation of deliveryrequested, or transmitted via facsimile machine with confirmation sheetconfirming completed and proper transmission, and directed to the party forwhom intended at the address set forth above or to such other address as may befurnished by either party to the other in writing 

 

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inaccordance with the provisions of this Section; provided that notice of changeof address must be received to be effective (and shall not be effective untilactually received).  All notices underthis 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:  GlobalIdentity & 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:       Presidentand CEO

 

with a copy to:

 

Global Companies LLC

800 South Street, Suite 200

Waltham, Massachusetts 02453

Attn:       GeneralCounsel

 

**26.****                              ****TERMINATION.**

 

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

 

(b)                                 This Agreementand the Franchise Relationship may be terminated by BFA Holder in the eventthat ExxonMobil loses, or transfers to a third party (other than to anAffiliate of ExxonMobil), the right to grant BFA Holder the right to use eitherof the Proprietary Marks used to brand Branded Fuel that BFA Holder is usingpursuant to this Agreement as of the date ExxonMobil loses or transfers suchright.

 

(c)                                  This Agreementand 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 falseor materially misleading statement or representation (by act or by omission)which induces ExxonMobil to enter into this Agreement, or which is relevant tothe Franchise Relationship between the parties hereto; or

 

(3)                                  If BFA Holder becomes insolvent; or

 

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(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 itsproperty or affairs by any court, or if BFA Holder or any Key Person ismentally or physically disabled for three (3) months or more, to theextent that BFA Holder is unable to provide for the continued proper operationof the Businesses; or

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Forpurposes of section (4) and (5) above, BFA Holder shall be entitledto notice of any such default from ExxonMobil and a reasonable time period inwhich to cure such default, before ExxonMobil exercises its right to terminatethis Agreement.  Notwithstanding theprevious sentence, in the event of a recurring default by BFA Holder of anobligation under this Agreement, ExxonMobil shall have no obligation to providefurther notice or opportunities for BFA Holder’s cure prior to exercising itsright to terminate this Agreement.

 

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

 

(e)                                  Any terminationof this Agreement by ExxonMobil shall be preceded by such notice fromExxonMobil as may be required by law.

 

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(f)                                    Upon theexpiration of the Term or upon termination hereof, ExxonMobil shall have theright, at its option, to enter, during normal operating hours, upon anypremises at which the Proprietary Marks are displayed (including, withoutlimitation all BFA Holder Branded Outlets), and to remove, paint out, orobliterate any signs, symbols or colors on said premises or on the buildings orequipment thereof which in ExxonMobil’s opinion would lead a purchaser tobelieve that the Products are being offered for sale at such premises.  BFA Holder shall cause its Franchise Dealersto grant ExxonMobil such a right of entry.

 

(g)                                 In the eventthis Agreement is terminated, ExxonMobil will suffer substantial damages whichare anticipated to be difficult and time consuming to prove withexactitude.  Furthermore, both partiesare desirous of avoiding what they believe will be the disproportionate cost ofpossible litigation and legal fees which a future dispute over the magnitude ofsuch damages would engender.  Theparties, therefore, have determined that if this Agreement is terminated, BFAHolder must pay to ExxonMobil as liquidated damages (in addition to any damages(liquidated or otherwise) payable to ExxonMobil under any other agreementbetween BFA Holder and ExxonMobil), and not as a penalty, an amount rounded tothe nearest dollar, equal to ** times (the Initial Total Volume setforth on Exhibit 15) times (the number of years, including anypartial year, remaining in the initial fifteen-year Term after suchtermination).  Notwithstanding theforegoing, BFA Holder shall not pay to ExxonMobil any liquidated damages underthis Section 26(g) in the event that this Agreement is terminated: (i) inconnection with a market withdrawal under the provisions of the PMPA; (ii) byExxonMobil 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 thecase of this subsection (iv), in the event ExxonMobil’s loss of the right togrant the right to use any of the Proprietary Marks is attributable to BFAHolder or any of its Affiliates or franchisees).

 

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

 

**27.****                              ****ACCORD.**

 

The parties to this Agreement have discussed the provisions herein andfind them fair and mutually satisfactory, and further agree that in allrespects the provisions are reasonable and of material significance to therelationship of the parties hereunder, and that any breach of a provision byeither party hereto or a failure to carry out said provisions in good faithshall conclusively be deemed to be substantial.

 

**28.****                              ****NATURE AND MODIFICATION OF AGREEMENT.**

 

(a)                                  Inconsideration of the granting and execution of this Agreement, the partiesunderstand and agree that they are not contractually obligated to extend orrenew in any way the Term, and that this Agreement shall not be considered ordeemed to be any form of “joint venture” or “partnership” at the premise(s) ofBFA Holder or elsewhere (including without limitation any BFA Holder BrandedOutlet).

 

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

 

(c)                                  This Agreementmay be modified only in writing signed by both parties or their duly authorizedagents.  ExxonMobil hereby agrees that ifit enters into any material amendment of a brand fee agreement with any holderthereof operating in the Designated Geographies, ExxonMobil shall offer suchamendment in substantially the same form to all of brand fee agreement holdersthen operating in the Designated Geographies.

 

**29.****                              ****SEVERABILITY OF PROVISIONS.**

 

Bothparties expressly agree that it is the intention of neither party to violatestatutory or common law and that if any section, sentence, paragraph, clause orcombination of same is in violation of any law, such

 

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

 

**30.****                              ****ENTIRE AGREEMENT.**

 

Thiswriting is intended by the parties to be the final, complete and exclusivestatement of this Agreement about the matters covered herein.

 

**31.****                              ****DISCLAIMER; NO RELIANCE.**

 

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

 

**32.****                              ****DAMAGES.**

 

NOTWITHSTANDINGANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXXONMOBIL (NOR ANY OF ITSAFFILIATES) WILL HAVE NO LIABILITY TO ANYONE FOR BUSINESS DISRUPTION, LOSTPROFITS, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATEDTO THIS AGREEMENT.

 

**33.****                              ****ATTORNEYS FEES.**

 

IfBFA Holder fails to pay any amount due under this Agreement or takes any actionnot requested in writing by ExxonMobil for which BFA Holder, its FranchiseDealers or their respective customers bring a claim or lawsuit againstExxonMobil or any of its Affiliates, BFA Holder agrees to pay ExxonMobil’s (orany of its Affiliates’) costs, fees and expenses (including reasonableattorneys fees) thereby expended in ExxonMobil’s (or its Affiliates’) pursuitor defense of such matters.

 

**34.****                              ****KEY PERSON CLAUSE.**

 

IfBFA Holder is a corporation, partnership or other entity form, it agrees toexecute Exhibit 11 (“Key Person Clause”) attached hereto and incorporatedas part of this Agreement.

 

**35.****                              ****RIGHT OF ENTRY.**

 

Inaddition to any other rights of ExxonMobil under this Agreement, BFA Holderpermits, and shall cause its Franchise Dealers to permit, ExxonMobil, it’sAffiliates and their respective employees, agents, vendors, contractors andrepresentatives (a) to access, analyze and reproduce books, records,correspondence, receipts, and data of BFA Holder or its Franchise Dealerspertaining to activities undertaken pursuant to this Agreement, and (b) toenter, during normal operating hours, any BFA Holder Branded Outlet(s) andother places where BFA Holder or any of its Franchise Dealers conduct anyBusiness to enforce ExxonMobil’s rights and remedies under this Agreement,including examining (to include video, photographic, digital, audio and otherrecordings), testing and sampling of all properties, tanks, containers, pumpsand delivery truck tanks, and taking other action, for purposes of preservingthe integrity of the Proprietary Marks, performing product quality inspectionsand determining BFA Holder’s compliance with this Agreement (includingcompliance with the terms of Sections 3 and 4). If, in the sole opinion of ExxonMobil, any samples thus taken are notProducts or any document or record shows BFA Holder has failed to comply withits obligations hereunder (or failed to cause any Franchise Dealer to socomply), ExxonMobil may, at its sole option, debrand the BFA Holder BrandedOutlet(s) in question or cancel and terminate this Agreement and theFranchise Relationship.  ExxonMobil shallprovide notice to BFA Holder of entry at an License Branded Outlet, except inthe case of any such entry in connection with ExxonMobil’s product qualityinspections.   BFA Holder shall preserveand shall cause its Franchise Dealers to preserve all books, records,correspondence, receipts and data pertaining to activities undertaken pursuantto this Agreement for a period of three (3) years.  BFA Holder agrees to include necessaryprovisions in its contracts with Franchise Dealers that shall assure access byExxonMobil or its 

 

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

 

ExxonMobilshall not be liable to BFA Holder or any Franchise Dealer for any interferencewith any Business of BFA Holder or its Franchise Dealers as a result ofExxonMobil’s entry on any BFA Holder Branded Outlet(s) and other placeswhere BFA Holder or any of its Franchise Dealers conduct any Business,including any entry pursuant to Section 26(f) hereof.

 

**36.****                              ****TERMS OF RENEWAL.**

 

Nothingin this Agreement is to be construed as preventing ExxonMobil upon expirationof this Agreement or any renewal of the Franchise Relationship, from offeringBFA Holder terms and conditions, in good faith and in normal course ofbusiness, which differ from or are in addition to those in this Agreement.

 

**37.****                              ****DRUG AND ALCOHOL.**

 

(a)                                  In the eventBFA Holder takes delivery of Products from ExxonMobil at ExxonMobil’s (or itsAffiliates’) facilities, the following provisions of this Section shallapply.  BFA Holder and BFA Holder’semployees, agents and contractors shall not enter ExxonMobil’s (or itsAffiliates’) facilities while under the influence of alcohol or any controlledsubstance.  BFA Holder, its employees,agents and contractors shall not use, possess, distribute or sell illicit orunprescribed drugs in connection with any activity performed under thisAgreement.  BFA Holder, its employees,agents and contractors shall not use, possess, distribute or sell alcoholicbeverages at any time while performing activities under this Agreement.  BFA Holder has adopted or will adopt its ownpolicy to assure a drug and alcohol free workplace while performing activitiesunder this Agreement.

 

(b)                                 BFA Holder willremove any of its employees, agents or contractors from performing activitieshereunder any time there is suspicion of alcohol or drug use, possession orimpairment involving such employee, agent or contractor, and at any time anincident occurs in performing activities hereunder where drug or alcohol usecould have been a contributing factor. ExxonMobil has the right to require BFA Holder to remove BFA Holder’semployees, agents or contractors from ExxonMobil’s (or its Affiliates’)facilities at any time cause exists to suspect alcohol or drug use by suchemployees, agents or contractors.  Insuch cases, BFA Holder’s employee, agent or contractor may be considered forreturn to ExxonMobil’s (or its Affiliates’) facilities only if the BFA Holdercertifies as a result of a for cause test, conducted immediately after removal,that said employee, agent or contractor was in compliance with the provisionsof this Section.  BFA Holder will not usean employee, agent or contractor to perform activities hereunder who eitherrefuses 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’semployees, agents and contractors that are on the premises owned or controlledby ExxonMobil (or its Affiliates).  Anyperson who refuses to cooperate with such search will be removed from thepremises and will not be allowed to return. BFA Holder will replace any of its employees, agents or contractors atExxonMobil’s request.

 

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

 

**38.****                              ****NO THIRD PARTY BENEFICIARY.**

 

Otherthan with respect to any indemnified party, the parties agree that no thirdparty beneficiary rights in favor of any person or entity are, nor are theyintended to be, created by this Agreement.

 

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**39.****                              ****CLAIMS AND DISPUTE RESOLUTION.**

 

(a)                                Claims.

 

(1)                                  As used in this Section, “claim(s)” shall be construed broadly and shallinclude 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 Holderor by ExxonMobil arising out of or relating to this Agreement and the FranchiseRelationship between the parties created hereunder are barred unless assertedwithin 12 months after the event, act or omission to which the claim relatesand in accordance with the dispute resolution procedure set forth below.

 

(b)                                 DisputeResolution Procedure.

 

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

 

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

 

(ii)                                  Unless otherwise agreed to by the parties, the mediation shall last nolonger than two days.

 

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

 

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

 

(v)                                 Irrespective of which party commences the mediation procedure, the filingfee required to be paid to the AAA shall be paid by ExxonMobil.  All other costs of the mediation, includingany fees to be paid to the mediator, shall be shared equally by theparties.  Each party shall be responsiblefor all expenses incurred by it in presenting its case, including any attorney’sfees.

 

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

 

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

 

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

 

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

 

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

 

(iii)                               The arbitration shall be held before a sole arbitrator who shall beselected by agreement of the parties.  Ifafter forty-five (45) days from the commencement of the arbitration the partieshave been unable to agree on the selection of an arbitrator, either party mayask the AAA to appoint a sole arbitrator and the decision of the AAA in thisrespect shall be final and binding.  Theparties prefer that any arbitrator agreed to between them or appointed by theAAA hereunder be either an individual with judicial experience or one who hasbeen a member of the bar for at least 25 years.

 

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

 

(v)                                 No claim asserted hereunder may be consolidated or asserted jointly withthe claim or claims of any other claimant or class of claimants and noarbitration proceeding commenced hereunder may be consolidated or joined withany other arbitration nor may any claim asserted hereunder be asserted as partof any class action litigation or class action arbitration proceeding.  If, for any reason, an arbiter or a courtdetermines that the parties’ agreement prohibiting class claims  is not enforceable, the class claims must bebrought as a class action litigation and not as a class action arbitration.

 

(vi)                              Irrespective of which party commences the arbitration procedurehereunder, the filing fee required to be paid to the AAA shall be paid byExxonMobil.  All other costs of thearbitration, including the fees to be paid to the arbitrator, shall be sharedequally by the parties.  Each party shallbe 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 39of this Agreement shall apply in respect of construction of this Section 39and that a finding of invalidity or unenforceability of any portion of this Section 39shall not affect the validity or enforceability of any other portion.

 

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**40.****                              ****MISCELLANEOUS.**

 

(a)                                  BFA Holdershall hold in confidence all business and technical information that is madeavailable to BFA Holder, directly or indirectly, by ExxonMobil or acquired byBFA Holder during the Term of this Agreement, including any proprietyinformation with respect to the additives and related mix rates, (collectively “ConfidentialInformation”), except:

 

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

 

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

 

(3)                                  information which BFA Holder can show was already in BFA Holder’spossession 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 orproduct transfer documentation) or valid legal or regulatory process, followingnotice by BFA Holder to ExxonMobil of the requirement to disclose andreasonable cooperation with any attempt by ExxonMobil to maintain theconfidentiality of such Confidential Information, to the extent such advancenotice and cooperation is possible without resulting in BFA Holder’s violationof applicable Law; and

 

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

 

BFA Holder also agrees that it shall not take anyphotographs, video or other recordings (including any digital or audiorecording) of ExxonMobil Oil Corporation’s or any of its Affiliate’s propertywithout ExxonMobil’s prior written consent.

 

(b)                                 WITHOUTLIMITING THE SCOPE OF THE FOREGOING SECTION 40(a), BFA HOLDER SPECIFICALLYAGREES THAT IT WILL HOLD IN CONFIDENCE ALL INFORMATION RELATING TO THE SOURCINGOF THE PRODUCT DISTRIBUTED PURSUANT TO THIS AGREEMENT EXCEPT FOR NECESSARYCOMMUNICATION WITH BFA HOLDER’S SUPPLIERS OF BASE PRODUCT AS WELL AS ANY ANDALL INFORMATION RELATING TO THE BRAND FEE. VIOLATION OF THIS PROVISION SHALL CONSTITUTE GROUNDS FOR TERMINATION OFTHE AGREEMENT.

 

(c)                                  BFA Holdershall not, without the prior written approval of ExxonMobil use theConfidential Information which BFA Holder is required to keep confidentialhereunder for any purpose other than the performance of BFA Holder’sobligations under this Agreement.

 

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

 

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

 

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

 

(f)                                    BFA Holderagrees that all financial settlements, billings, and reports, if any, renderedto ExxonMobil shall reflect properly the facts about all activities andtransactions handled for the account of ExxonMobil, which data may be reliedupon as being complete and accurate in any further recordings and reportingsmade by ExxonMobil for whatever purpose.

 

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

 

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

 

**41.****                              ****RHODE ISLAND - PRICE PROVISION.**

 

The following provision isapplicable only to those BFA Holder Branded Outlets located in the State ofRhode Island:

 

NOTHING HEREIN SHALL BECONSTRUED TO PROHIBIT A FRANCHISOR FROM SUGGESTING PRICES AND COUNSELING WITHFRANCHISEES CONCERNING PRICES.  PRICEFIXING OR MANDATORY PRICES FOR ANY PRODUCTS COVERED IN THIS AGREEMENT ISPROHIBITED.  A SERVICE STATION DEALER ORBRANDED WHOLESALER MAY SELL ANY PRODUCTS LISTED IN THIS AGREEMENT FOR APRICE WHICH HE ALONE MAY DECIDE.

 

**42.****                              ****INDEPENDENT CONTRACTORS; INDEPENDENT ADVICE.**

 

Itis expressly agreed that the parties will carry on their respective businesspursuant to this Agreement as independent contractors in pursuit of theirindependent callings and not as partners, fiduciaries, agents, or in any othercapacity. Each party has had the opportunity to obtain independent legal advicerespecting this Agreement and the business relations mentioned in thisAgreement.

 

**[Remainder of page intentionallyleft blank; signature page follows]**

 

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**EXECUTED** by BFA Holderand 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          |   |                                     |   |

 

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**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

RhodeIsland State Notice

RevisedSummary 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

 

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