**Exhibit 10.4**
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**SALE AND PURCHASE AGREEMENT**

 

 

**RETAIL MARKETING ASSETS**

 

 

**MASSACHUSETTS, NEW HAMPSHIRE ANDRHODE ISLAND**

 

 

**May 24, 2010**

 
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**TABLE OF CONTENTS**

 
| ARTICLE I  DEFINITIONS                                | 3      |
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| ARTICLE II TRANSFER AND SALE BY SELLER                | 11     |
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| ARTICLE III PURCHASE PRICE                            | 17     |
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| ARTICLE IV FUTURE  BUSINESS                           | 21     |
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| ARTICLE V SURVEY, TITLE AND CERTAIN DILIGENCE MATTERS | 23     |
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| ARTICLE VI CLOSING                                    | 25     |
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| ARTICLE VII ENVIRONMENTAL MATTERS                     | 28     |
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| ARTICLE VIII REPRESENTATIONS AND WARRANTIES           | 37     |
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| ARTICLE IX LIABILITIES                                | 39     |
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| ARTICLE X INDEMNITIES                                 | 40     |
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| ARTICLE XI CONFIDENTIALITY                            | 44     |
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| ARTICLE XII CONDITIONS PRECEDENT                      | 44     |
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| ARTICLE XIII EARLY TERMINATION; REMEDIES              | 45     |
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| ARTICLE XIV PROPERTY LOSS                             | 48     |
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| ARTICLE XV TANK TESTING                               | 48     |
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| ARTICLE XVI RIGHT OF ENTRY AND INSPECTION; EQUIPMENT  | 49     |
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| ARTICLE XVII EXCUSED DELAY                            | 50     |
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| ARTICLE XVIII JOINT PUBLICITY                         | 51     |
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| ARTICLE XIX EMPLOYEES                                 | 51     |
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| ARTICLE XX  INSURANCE                                 | 52     |
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| ARTICLE XXI MISCELLANEOUS                             | 53     |

 

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**SALE AND PURCHASE AGREEMENT**

 

THIS SALE AND PURCHASE AGREEMENT(this “Agreement”) is made and entered into as of the Effective Dateamong EXXONMOBIL OIL CORPORATION, a New York corporation (“EMOC”) andEXXON MOBIL CORPORATION, a New Jersey corporation (“EMC” and, togetherseverally with EMOC, “Seller”), and GLOBAL COMPANIES LLC, a Delawarelimited liability company that is existing and authorized to conduct businessin the Commonwealth of Massachusetts, and the States of New Hampshire and RhodeIsland (“Purchaser”), upon the terms and conditions set forthherein.  When provisions herein apply toboth or either Seller or Purchaser, they sometimes are referred to as “Parties”or “Party.”

 

**RECITALS**

 

WHEREAS, Seller owns and/or leasescertain service station properties located in Massachusetts, New Hampshire andRhode Island and identified on Exhibits A-1 and A-2 which itintends to sell or assign to Purchaser, and Purchaser intends to purchase orassume from Seller, in accordance with the terms of this Agreement; and

 

WHEREAS, Seller is party to certainsupply agreements and/or franchise agreements with dealers at the servicestations owned and/or leased by Seller and with dealers operating at dealerowned and operated service stations identified on Exhibit A-3,which agreements Seller intends to assign to Purchaser, and Purchaser intendsto assume from Seller, in accordance with the terms of this Agreement; and

 

WHEREAS, Seller owns certain assetsassociated with the marketing operations of the service station properties,including contract rights, equipment, improvements and other personal property,which it intends to assign or sell incident to this transaction, and Purchaserintends to assume or purchase the same from Seller in accordance with the termsof this Agreement; and

 

WHEREAS, in accordance with theterms of this Agreement, Purchaser is acquiring the Purchased Assets, includingthe Properties, in their “AS-IS, WHERE-IS” condition; and

 

WHEREAS, Seller will transfer andassign to Purchaser, and Purchaser shall accept and assume from Seller,responsibility for any and all environmental liabilities associated with theProperties; and

 

WHEREAS, Purchaser shall enter intoa Brand Fee Agreement for use in the sale and distribution of certain BrandedFuels at the service station properties as more fully described in thisAgreement and the Brand Fee Agreement.

 

NOW, THEREFORE, in consideration ofthe Recitals and the mutual covenants, conditions and agreements set forth inthis Agreement, and for other good and valuable consideration, the receipt andsufficiency of which hereby are mutually acknowledged, the Parties, intendingto be legally bound, agree as follows:

 

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**TERMS AND CONDITIONS**

 

**ARTICLE IDEFINITIONS**

 

1.1              AccessAgreements has the meaning set forth in Section 2.5.5.

 

1.2              Affiliate

 

1.2.1           With respect to Seller means:

 

(a)           any parent of Seller;

 

(b)           any company orpartnership in which Seller or any parent of Seller now or hereafter owns orcontrols, directly or indirectly, more than fifty percent (50%) of theownership interest having the right to vote or appoint its directors orfunctional equivalents (“Affiliated Company”);

 

(c)           any joint venture inwhich Seller, any parent of Seller, or an Affiliated Company has an ownershipinterest and/or is the operator; or

 

(d)           any successor ininterest to (a) through (c) above.

 

1.2.2           With respect to Purchaser means:any Person directly or indirectly controlling, controlled by, or under commoncontrol with Purchaser, including any other Person directly or indirectlycontrolling, controlled by, or under common control with such Person.  For purposes of this definition, the term “control”(including the terms “controlled by” and “under common control with”) means thepossession, directly or indirectly, of the power to direct or cause thedirection of the management and policies of any Person, whether through the ownership ofvoting securities or by contract or otherwise. For the purposes of this Agreement, Alliance Energy LLC, a Massachusettslimited liability company (“Alliance”) and AE Holdings Corp., a Massachusettscorporation and the managing member of Alliance shall not be consideredAffiliates of Purchaser.

 

1.3              Agreement means thisAgreement, including all recitals, schedules and exhibits.

 

1.4              ALTA Land Title Surveymeans a boundary survey prepared to a set of minimum standards that have beenjointly prepared and adopted by the American Land Title Association and theAmerican Congress on Surveying and Mapping, which surveys include improvements,easements, rights-of-way, and other elements that impact land ownership.

 

1.5              Assignment and AssumptionAgreement means an Assignment and Assumption Agreement, in the formattached as Exhibit Z, pursuant to which Seller will assign andconvey to Purchaser and Purchaser shall assume from Seller certain Contracts,permits (if any), and the Assumed Liabilities.

 

1.6              Assignment of Leases hasthe meaning set forth in Section 2.2.2.

 

1.7              Assignment of PMPA FranchiseAgreements has the meaning set forth in Section 2.5.1.

 

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1.8              Assumed Liabilities meansall Claims, debts, liabilities and obligations of any kind and nature of Selleror any Seller Affiliate arising out of or related to the Purchased Assets, whetherarising before or after Closing, including, without limitation, (a) allEnvironmental Liabilities; (b) all obligations of Seller pursuant to anycontract or agreement assumed by Purchaser in accordance with this Agreement;and (c) all debts, liabilities and obligations arising out of or relatedto the ownership or operation of the Purchased Assets before and after Closing;provided, however, that Assumed Liabilities shall not include any liability tothe extent it is an Excluded Liability.

 

1.9              Back Office System or BOShas the meaning set forth in Section 2.8.1.

 

1.10            Baseline Report has themeaning set forth in Section 7.1.1.

 

1.11            Benefits means the benefitprograms currently in effect for all Employees, which benefits are detailed in SchedulesV-4 and V-5 of Exhibit V.

 

1.12            Bill of Sale has the meaningset forth in Section 2.3.1.

 

1.13            Brand Fee Agreement means theBrand Fee Agreement, substantially in the form and substance set forth as Exhibit EEattached hereto, by and between Purchaser and EMOC, which provides for the useof certain Exxon and Mobil-related trademarks in the sale and distribution ofcertain Branded Fuels at, and the operation of, the service station propertiesafter Closing.

 

1.14            Branded Fuel means motor fuelbranded with those trademarks owned or controlled by Seller, specificallyidentified in Exhibits 13-A and 14-A to the Brand Fee Agreement.

 

1.15            Business Day means any dayother than Saturday, Sunday, or any other day that commercial banks in Fairfax,Virginia are generally authorized to close.

 

1.16            Claim or Claims meansany pending or threatened suit, claim, loss, cost, obligation, damage,liability, payment, fine, penalty, cause of action, litigation, judgment(including, but not limited to, expert fees and attorneys’ fees awarded as partof a judgment), lien or expense (including, but not limited to, reasonableattorneys’ fees and other litigation expenses), whether known or unknown, thatmay be alleged or brought by any person, Governmental Authority or governmentalentity, or any administrative, arbitration, or governmental proceeding,investigation or inquiry affecting or arising out of any asset or right that isa subject of this Agreement.

 

1.17            Closing means the act oftransferring Seller’s interests in the Purchased Assets and all AssumedLiabilities to Purchaser in accordance with the terms of this Agreement.

 

1.18            Closing Date means the dateon which the Closing occurs.

 

1.19            Company-Operated RetailProperties means the EMC Company-Operated Retail Properties and the EMOCCompany-Operated Retail Properties.

 

1.20            Company-Owned Dealer-OperatedProperties means the EMC Company-Owned Dealer-Operated Properties and theEMOC Company-Owned Dealer-Operated Properties.

 

1.21            Conditions Precedent meansthe conditions set out in Article XII.

 

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1.22            Confidential Information hasthe meaning set forth in Section 11.1.

 

1.23            Confidentiality Agreementshall mean the confidentiality agreement dated December 8, 2009 betweenSeller and/or its Affiliates and Purchaser covering the sale and purchase ofthe Purchased Assets.

 

1.24            Contamination has the meaningset forth in Section 7.1.2.

 

1.25            Contracts means allcontracts, agreements, licenses, relationships and commitments, written ororal, relating to the Purchased Assets described on Exhibit BB.

 

1.26            Dealer-Owned Service Stationmeans a dealer owned and operated service station, as identified on Exhibit A-3,whose dealer has entered into a Dealer Supply Agreement with EMOC.

 

1.27            Dealer Supply Agreementsmeans those agreements governing the supply of Branded Fuel to the Dealer-OwnedService Stations.

 

1.28            Deed has the meaning setforth in Section 2.2.1.

 

1.29            Default means thenon-performance, default, or breach by either Purchaser or Seller of anobligation, covenant, or undertaking required of such Party under thisAgreement.

 

1.30            Deposit means money depositedwith the Title Company in escrow, including each of the Signing Deposit,Earnest Money Deposit and Extension Period Deposit.  Unless otherwise expressly stated, whereverthe term “Deposit” is used in this Agreement, the term shall include anyinterest earned on such deposit.

 

1.31            Disputes has the meaning setforth in Section 10.5.

 

1.32            Earnest Money Deposit meansthe Initial Earnest Money Deposit and the Final Earnest Money Deposit, to theextent deposited into the Escrow Account or secured by an acceptable letter ofcredit in accordance with Section 3.3.3.

 

1.33            Effective Date means the datethis Agreement is fully executed by Seller and Purchaser.

 

1.34            EMC Company-Operated RetailProperties means service station properties identified on Exhibits A-1and A-2 as “CORS” and as owned or leased by EMC.

 

1.35            EMC Company-Owned Dealer-OperatedProperties means service station properties identified on Exhibits A-1and A-2 as “CODO” and as owned and/or leased by EMC that are operated bya dealer.

 

1.36            EMC Fee Properties means theservice station properties identified on Exhibit A-1 as being ownedby EMC, including the land, the buildings, and all other improvements orappurtenances located on, under or over the Properties owned by EMC.

 

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1.37            EMC Lease Properties meansthe service station properties identified on Exhibit A-2 as beingleased by EMC, including the land, the buildings, and all other improvements orappurtenances located on, under or over the Properties leased by EMC.

 

1.38            EMC Properties means the EMCFee Properties and the EMC Lease Properties.

 

1.39            EMOC Company-Operated RetailProperties means service station properties identified on Exhibits A-1and A-2 as “CORS” and as owned or leased by EMOC.

 

1.40            EMOC Company-OwnedDealer-Operated Properties means the service station properties identifiedon Exhibits A-1 and A-2 as “CODO” and as owned and/or leased byEMOC that are operated by a dealer.

 

1.41            EMOC Fee Properties means theservice station properties identified on Exhibit A-1 as being ownedby EMOC, including the land, the buildings, and all other improvements orappurtenances located on, under or over the Properties owned by EMOC.

 

1.42            EMOC Lease Properties meansthe service station properties identified on Exhibit A-2 as beingleased by EMOC, including the land, the buildings, and all other improvementsor appurtenances located on, under or over the Properties that are leased byEMOC.

 

1.43            EMOC Properties means theEMOC Fee Properties and the EMOC Lease Properties.

 

1.44            Employees means all employeesidentified on Exhibit V thirty (30) days before Closing.

 

1.45            Engineering and InstitutionalControls has the meaning set forth in Section 7.1.3.

 

1.46            Environmental Law or EnvironmentalLaws has the meaning set forth in Section 7.1.4.

 

1.47            Environmental Liabilities hasthe meaning set forth in Section 7.1.5.

 

1.48            Equipment means all Sellerowned assets, other than land, buildings, and Inventory, located at theProperties or any Dealer-Owned Service Station as of Closing.  Equipment shall include product dispensers,pumps, air compressors, lifts and convenience store coolers, to the extent suchassets are owned by Seller and located at the Properties or any Dealer-OwnedService Station as of Closing.  For theavoidance of doubt, “Equipment” shall not include any Intellectual Property ofSeller.

 

1.49            Escrow Account has the meaningset forth in Section 3.2.

 

1.50            Escrow Agreement has themeaning set forth in Section 3.3.1.

 

1.51            Excluded Liabilities means (a) Claimsfor unpaid trade payables or notes payable with respect to the Purchased Assetssolely to the extent attributable to periods before the Closing; (b) thirdparty personal injury and property damage Claims arising from an occurrencebefore the Closing; (c) employment Claims raised by Seller’s exempt andnon-exempt employees who were employed by Seller prior to or as of the Closingand where the cause of action arose before the Closing; (d) Claims basedon EMOC’s failure to discharge or perform any obligation, covenant oragreement, made by EMOC under 

 

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any PMPA FranchiseAgreement required to be performed by EMOC prior to the Closing Date; and (e) theListed Claims.  Purchaser acknowledgesand agrees that (i) any liabilities or Claims arising out of, inconnection with, or related to Seller’s compliance with the terms of thisAgreement, including EMOC’s assignment of the PMPA Franchise Agreements (exceptfor Listed Claims), shall not be asserted or deemed to be “Excluded Liabilities”and are expressly assumed by Purchaser pursuant hereto; and (ii) anyliabilities or Claims, including, without limitation, any third party personalinjury and property damage Claims, arising out of, in connection with, orrelated to the environmental condition of the Properties, Contamination, or anyRemediation Activities or Environmental Liabilities, whether or not identifiedin the Baseline Report (except for Listed Claims) shall not be asserted ordeemed to be an “Excluded Liability,” and are expressly assumed by Purchaserpursuant hereto.

 

1.52            Extension Period Depositmeans a deposit equal to the lesser of (a) one percent (1%) of theunadjusted Purchase Price set forth in Section 3.1 and (b) fivehundred thousand dollars ($500,000), paid by Purchaser to Seller to extend theInspection Period for an additional thirty (30) days.

 

1.53            ExxonMobil Captive Insurershas the meaning set forth in Section 20.1.

 

1.54            ExxonMobil Policies has themeaning set forth in Section 20.1.

 

1.55            Fee Properties means the EMCFee Properties and the EMOC Fee Properties.

 

1.56            Final Closing Date means thedate that is forty-five (45) days after the end of the Inspection Period.

 

1.57            Final Earnest Money Depositmeans the applicable sum set forth on Exhibit A-5.

 

1.58            Government Reimbursement Fundhas the meaning set forth in Section 7.1.6.

 

1.59            Governmental Authority hasthe meaning set forth in Section 7.1.7.

 

1.60            Guarantor means GlobalPartners LP, a Delaware limited partnership.

 

1.61            Guaranty means the guarantyexecuted by the Guarantor to guarantee the obligations of Purchaser, and anysuccessor or assignee of Purchaser, under this Agreement and under any otherdocument delivered to Seller at or before Closing.

 

1.62            Hart-Scott-Rodino Act meansthe Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and therelevant rules and regulations thereunder.

 

1.63            Index has the meaning setforth in Section 4.1.2.

 

1.64            Initial Earnest Money Depositmeans the applicable sum set forth on Exhibit A-5.

 

1.65            Inspection Period has themeaning set forth in Section 5.3, as the same may be extended pursuant to Section 5.3.

 

1.66            Intellectual Property means: (a) allregistered trademarks, service marks, trade dress, logos and trade names,including all goodwill associated therewith and all active applications, 

 

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registrations andrenewals in connection therewith; (b) all trade secrets and confidentialbusiness information (including know-how, formulas, compositions, manufacturingand production processes and techniques, technical data, designs, drawings,specifications, customer and supplier lists, and business and marketing plansand proposals); and (c) all copies and tangible embodiments thereof (inwhatever form or medium).

 

1.67            Interest Credit has themeaning set forth in Section 3.2.1.

 

1.68            Inventory means all inventoriesof refined petroleum products in bulk storage owned by Seller, if any, at anyCompany-Operated Retail Property as of the Closing; all convenience storemerchandise for resale owned by Seller, if any, at any Company-Operated RetailProperty as of the Closing; and any car-wash chemicals owned by Seller, if any,at any Company-Operated Retail Property as of the Closing; provided, that, Inventoryshall not include any consigned inventory; and provided, further, that, absentagreement prior to the date that is thirty (30) days after the end of theInspection Period between Purchaser and the then current *On the Run* franchisor providing forPurchaser’s use of the *On the Run*trademarks and other intellectual property, Inventory shall not includeany *On the Run* brandedmerchandise.

 

1.69            Lease Properties means theEMC Lease Properties and the EMOC Lease Properties.

 

1.70            LIBOR has the meaning setforth in Section 3.2.1.

 

1.71            Listed Claims means thoseClaims set forth on Exhibit P.

 

1.72            Market Withdrawal has themeaning set forth in Section 3.3.4(B)(v).

 

1.73            No Further Action Status or NFAStatus has the meaning set forth in Section 7.1.8.

 

1.74            NPL has the meaning set forthin Section 2.5.3.

 

1.75            Objections has the meaningset forth in Section 5.3.2.

 

1.76            *Onthe Run* CORS Properties means those Company-OperatedRetail Properties at which Seller operates an *Onthe Run* convenience store.

 

1.77            Orphaned Tank means a Tank,whether maintained or unmaintained, that is located at, on or under a Propertyat the time of Closing and is no longer in service and/or is not listed on theBill of Sale.

 

1.78            Permitted Encumbrances hasthe meaning set forth in Section 5.5.

 

1.79            Person means an individual,partnership (whether general or limited), limited liability company,corporation, trust, estate, unincorporated association, nominee, joint ventureor other entity that is given, or is recognized as having, legal personality bythe law of any jurisdiction, country, state or territory.  “Person” includes any emanation of asovereign state or government, whether national, provincial, local orotherwise, any international organization or body (whether or not having legalpersonality), and any other juridical entity, in each case wherever resident,domiciled, incorporated or formed.

 

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1.80            Personal Property means allpersonal property, other than Inventory, owned by Seller and located at theProperties or any Dealer-Owned Service Station as of Closing and/or anyinterest of Seller in such property, including, but not limited to, leaseholdimprovements subject to any rights reserved under any lease agreement (andexcluding all proprietary equipment, back office computer systems, softwarecontaining proprietary information and other equipment to be removed by Sellerfrom the Properties no later than the Closing Date pursuant to this Agreement);provided, however, that “Personal Property” shall not include any IntellectualProperty of Seller.  For the avoidance ofdoubt, “Personal Property” shall include all remediation equipment, monitoringwells, and Tanks.

 

1.81            PMPA means the PetroleumMarketing Practices Act, 15 U.S.C., Section 2801, et seq.

 

1.82            PMPA Franchise Agreementsmeans, collectively, lease or sublease agreements, franchise agreements, motorfuels sales agreements, including Dealer Supply Agreements and other agreementsbetween EMOC and its franchise dealers establishing a “franchise relationship,”as that term is defined in the PMPA.

 

1.83            Point of Sale or POShas the meaning set forth in Section 2.3.2.

 

1.84            Property or Propertiesmeans the EMC Properties and the EMOC Properties.

 

1.85            Purchase Price means theamount of monetary consideration to be paid in U.S. Dollars by Purchaser toSeller, as set forth in Section 3.1, as may be adjusted in accordance withthe terms of this Agreement.

 

1.86            Purchased Assets means,collectively, the Properties (including the leases for all Lease Properties),the PMPA Franchise Agreements, the Personal Property, the Equipment, the Contracts,and Inventory to be transferred to Purchaser pursuant to the terms of thisAgreement.

 

1.87            Purchaser Indemnified Partieshas the meaning set forth in Section 10.2.1.

 

1.88            Purchaser-Related Partiesmeans Purchaser, Purchaser’s parent, subsidiaries, and Affiliates and theirrespective owners, officers, directors, employees, agents, divisions,contractors, invitees, servants, representatives, successors and assigns (and,if Purchaser is a natural person, its heirs and legal representatives).

 

1.89            Remediation Activities hasthe meaning set forth in Section 7.1.9.

 

1.90            Remediation Consultant hasthe meaning set forth in Section 7.1.10.

 

1.91            Remediation Contractor orRemediation Contractors has the meaning set forth in Section 7.1.11.

 

1.92            Seller Indemnified Partieshas the meaning set forth in Section 10.1.1.

 

1.93            Seller-Related Parties meansSeller, Seller’s subsidiaries and Affiliates and their respective owners,officers, directors, employees, agents, divisions, contractors, invitees,servants, representatives, successors and assigns.

 

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1.94            Signing Deposit means TwoHundred and Fifty Thousand U.S. Dollars ($250,000.00 USD) deposited byPurchaser with the Title Company upon Purchaser’s submission of its bindingbid.

 

1.95            Survey means a current ALTALand Title Survey of each Property, prepared by a duly licensed land surveyorand registered professional engineer satisfactory to the Title Company and toSeller.

 

1.96            Tank or Tanks meansand refers to the storage tanks and associated lines and piping used for thestorage of petroleum products or other products or materials and located at, onor under a Property, including all Orphaned Tanks and tanks previously used,currently used or intended to be used in the operation of a service station.

 

1.97            Tax or Taxes means anypast, present, or future tax, including, without limitation, “green” orenvironmental tax, income tax, value added tax, and all other transactional orturnover tax, levy, excise, and other duty, contribution, charge, fee,deduction or withholding of any nature by any tax agency or other emanation ofa sovereign state or government, whether national, federal, regional,provincial, local or otherwise, and wherever imposed, levied, collected,withheld or assumed, including any interest, penalty, fine or surcharge payablein connection with any of the above, whichTaxes shall include, without limiting the generality of the foregoing, allincome or profits taxes, capital gain taxes, unemployment insurance taxes,payroll and employee withholding taxes, and social security taxes.

 

1.98            Tightness Testing meanspressure or other tests that are performed on the operating Tanks for thepurpose of testing tank integrity.

 

1.99            Title Company means StewartTitle and Guaranty Company or any other title company chosen by Seller bywritten notice to Purchaser.

 

1.100          Trademarks meanspetroleum-related service marks, trademarks, logos, emblems, trade dress,applications for registration of marks, mark registrations, and other indiciaof origin, including, without limitation, the names and marks EXXON,EXXONMOBIL, ESSO, the Tiger Design, the Pegasus Design, MOBIL, and such othernames, domain names, marks, logos, emblems, trade dress, and other indicia oforigin as Seller and its Affiliates may from time to time own in connectionwith the marketing and or sale of petroleum products and associated services.

 

1.101          Upgrades has the meaning setforth in Section 4.3.

 

1.102          U.S. Dollars, Dollars, USDor $ means the U.S. Dollar, the lawful currency of the United States ofAmerica.

 

1.103          Virtual Data Room meansthe web-based portal or portals where documents related to the contemplatedtransaction are delivered by Seller for review by Purchaser.  Seller will use two (2) such portals,one (1) operated by IntraLinks for all documents other than environmentalinformation, and the other operated by Faulkner & Flynn forenvironmental information, as more fully described in Article VII.

 

1.104          Willful Misconduct means aconscious, voluntary act or an omission in intentional disregard of legal dutyand/or good and prudent standards of performance.

 

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**ARTICLE II****TRANSFER AND SALE BY SELLER**

 

2.1              Sale and Purchase; Assignmentand Assumption.  At Closing, andsubject to the terms and conditions of this Agreement: (a) Seller willsell, assign, convey and transfer to Purchaser, and Purchaser shall purchase,assume and accept from Seller all of Seller’s assignable and transferablerights, title and interest in the Purchased Assets; (b) Seller will assignto Purchaser and Purchaser shall assume from Seller and discharge the AssumedLiabilities; and (c) Seller will transfer and assign to Purchaser andPurchaser shall accept and assume from Seller any and all EnvironmentalLiabilities, as further described in Article VII.

 

2.2              Transfer of Properties.

 

2.2.1           Transferof Fee Properties.  The sale andtransfer of the Fee Properties will be accomplished by Seller’s conveyance atClosing of a quitclaim deed(s) substantially in the form attached as Exhibit J(each a “Deed” and together the “Deeds”).  Seller will have no obligation to sell ortransfer any Fee Property that is subject to a right of first refusal.  If a Fee Property to be sold and transferredto Purchaser pursuant to this Agreement is subject to a right of first refusalin favor of any third party holder, then Seller, during the Inspection Period,will, at Seller’s option, (a) request such holder’s waiver of its right offirst refusal in writing; and/or (b) offer the right of first refusal tothe third party holder and, provided that the third party holder declines suchright of first refusal, proceed with the sale of such Fee Property toPurchaser.  If Seller obtains the waiverdescribed in clause (a) above, Seller shall provide notice toPurchaser.  If by the date which isthirty (30) days after the end of the Inspection Period Seller has not obtainedsuch waiver and/or Seller has elected not to offer the right of first refusalto the third party holder, Seller will notify Purchaser and Purchaser may: (i) afternotice to and consent of Seller, which consent may be withheld for any reasonwhatsoever, use its own efforts to obtain such third party’s waiver to theextent such efforts do not create any additional liability to Seller; (ii) withSeller’s consent, which consent may be withheld for any reason whatsoever,elect to enter into a lease between Seller and Purchaser for such Fee Property,so long as such lease does not violate the applicable right of first refusal orrequire the affirmative consent of the holder thereof; or (iii) removesuch Fee Property from this Agreement and reduce the Purchase Price by theamount of the allocated Purchase Price for such Fee Property set forth on Exhibit A-4.  If Seller elects to offer the right of firstrefusal to the third party holder pursuant to (b) above and such right offirst refusal is exercised by the holder thereof, such Fee Property shall beremoved from this Agreement and the Purchase Price shall be reduced by theamount of the allocated Purchase Price for such Fee Property set forth on Exhibit A-4.  Without making any representation or warrantyas to the enforceability or validity of any right of first refusal or to theexistence or non-existence of other rights of first refusal, Seller disclosesto Purchaser that the documentation for certain of the Sites set forth on Exhibit A-1may contain a right of first refusal provision. Notwithstanding anything contained in this Agreement to the contrary,Seller’s sole obligation with respect to obtaining any waiver of a right of firstrefusal, if it elects to do so, shall be limited to Seller sending a writtenrequest to the holder thereof; Seller shall have no obligation to incur anyexpense or to take any other action whatsoever with respect to obtaining anywaiver.

 

2.2.2           Transferof Lease Properties.  The assignmentand transfer of the Lease Properties will be accomplished by the Parties’execution at Closing (or, if any lease expressly requires delivery of anexecuted assignment in order to obtain a landlord’s consent, on such earlierdate as will allow delivery of such assignment document with a consent request,to be effective as of Closing) of an 

 

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Assignment and Assumption of Lease Agreements in the form attached as Exhibit H(the “Assignment of Leases”). Seller will have no obligation to obtain any consent required inconnection with the assignment of any of the leases for the LeaseProperties.  If a lease to be assigned toPurchaser pursuant to this Agreement requires, either expressly or by law, theaffirmative consent of the landlord under the lease to legally effectuate anassignment, then Seller, during the Inspection Period, will request suchlandlord’s consent to the assignment in writing.  If Seller obtains such consent, Seller shallprovide notice to Purchaser.  If Sellerhas not obtained such consent by the date which is thirty (30) days after theend of the Inspection Period, Seller will notify Purchaser and Purchaser may: (a) afternotice to and consent of Seller, which consent may be withheld for any reasonwhatsoever, use its own efforts to obtain such landlord’s consent to the extentsuch efforts do not create any additional liability to the Seller; (b) enterinto a new lease with such landlord effective as of Closing so long as suchlandlord agrees to terminate the existing lease between Seller and suchlandlord releases Seller from any liability under such existing lease; (c) withSeller’s consent, which consent may be withheld for any reason whatsoever, electto enter into a sublease between Seller and Purchaser, so long as such subleasedoes not require the affirmative consent of such landlord; or (d) removesuch Lease Property from this Agreement and reduce the Purchase Price by theamount of the allocated Purchase Price for such Lease Property set forth on Exhibit A-4.  Notwithstanding anything contained in thisAgreement to the contrary, Seller’s sole obligation with respect to obtainingany consent from any landlord shall be limited to Seller sending a writtenrequest to such landlord; Seller shall have no obligation to incur any expenseor to take any other action whatsoever with respect to obtaining any consent.

 

2.2.3           PermittedEncumbrances.  The transfers of theProperties shall be subject to the Permitted Encumbrances and shall include alltransferable easements and other rights appurtenant to the Properties, as wellas all buildings and improvements owned by Seller, located on, over or underthe Properties.

 

2.2.4           *On The Run* CORS Properties.  In the event that Purchaser fails to provideSeller, no later than thirty (30) days after the end of the Inspection Period,with proof of its agreement with the then current *On the Run*franchisor providing for Purchaser’s use of the *On the Run*trademark and other intellectual property at the Company-Operated RetailProperties from and after the Closing Date, then Seller shall, prior toClosing, remove from or otherwise discontinue the use of all signage, propertyand products bearing the *On the Run*trademark, or any related trademarks, tradenames or other intellectualproperty, and the *On the Run* CORS Properties willbe transferred at Closing without the *On the Run*brand.  In such event, the *On the Run* CORS Properties will be debranded by Sellerbefore Closing.  Seller shall have noobligation to rebrand any *On the Run* CORSProperty to any other brand or re-image any such Property.  Such Properties will be transferred withoutbranding (provided that Seller will replace any *On the Run*tiles or boxes with plain white panels). Seller shall have the right to access the *On the Run*CORS Properties, at no charge to Seller, to complete any debranding requiredafter Closing.

 

2.3              Personal Property and Equipment.

 

2.3.1           Transferof Personal Property and Equipment. Seller’s conveyance and assignment of its interests in the PurchasedAssets pursuant to this Agreement will include all of Seller’s PersonalProperty and Equipment, except as otherwise specified within thisAgreement.  The owned Personal Propertyand Equipment will be identified on a Bill of Sale in the form attached as Exhibit K(the “Bill of Sale”) and additional Tank documents will be providedpursuant to Section 15.1.4.  To the 

 

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extent such information is available, Tanks will be identified on a Billof Sale for each Property by number and size; provided that any Orphaned Tanks,whether or not specifically identified, shall convey with the Property.  Purchaser is solely responsible foridentifying and obtaining all requisite authorizations to effectuate transferof Tanks, provided, however, Seller shall cooperate in good faith withPurchaser with regard to execution of necessary documents.  Seller does not assume or retain anyliability or responsibility related to any Tanks that exist or may bediscovered on the Properties following Closing, and such responsibility andliability shall be transferred to and assumed by Purchaser as of Closing,including, without limitation, any Environmental Liabilities arising from saidTanks.

 

2.3.2           Point of Sale Software. Purchaseracknowledges that Seller’s point of sale equipment (“Point of Sale” or “POS”)operates on software that records or provides access to certain protectedproprietary data, including, but not limited to, consumer credit card andaccounting information.  Although the POShardware will transfer as Personal Property pursuant to this Agreement,Purchaser agrees and acknowledges that prior to or as of the Closing Date, Sellerwill take such steps as Seller may deem necessary or advisable to preventPurchaser’s access to such proprietary data, including disabling softwarefeatures, locking out access and/or erasing such information (e.g., Seller willdisable Purchaser’s ability to generate certain credit card transactionalreports and/or modify the dry-stock price book in the POS database).  From and after Closing, Purchaser shallestablish its own inventory and pricing independent of, and without referenceto, Seller’s pricing information including, without limitation, entering into athird-party license for all necessary point of sale software and relatedmaintenance agreements.  Seller willprovide Purchaser with access to Seller’s POS system as modified by Seller fora period of up to forty-five (45) days following the Closing Date to permit thecontinued sale of merchandise at the Properties between Closing and until suchtime as Purchaser has removed the existing data and software from the POS andreplaced it with new operating software obtained by license from the POSmanufacturer and its own dry-stock price book, or replaced the existing POSwith its own POS system.  At any timeafter the expiration of the foregoing forty-five (45) day period, Seller shallhave the right to further limit, or terminate Purchaser’s access to Seller’scredit card network.  In addition, ifPurchaser fails to reload the POS with updated software (and, as a result,remove all of Seller’s proprietary data) within the forty-five (45) day period,Purchaser shall allow Seller access to the Properties, at no charge to Sellerand at Seller’s discretion, to remove any of Seller’s proprietary data,including information related to consumer credit card transactions.

 

2.4              Inventory.  In addition to the Purchase Price, inconsideration of Seller’s sale, conveyance and transfer of the Inventory, atthe Closing Purchaser shall pay to Seller, by wire transfer of immediatelyavailable funds, the amount calculated pursuant to the payment schedule setforth in Exhibit Y.  Theprice and payment terms for petroleum products inventory, convenience storemerchandise and car-wash chemicals shall be as set forth in Exhibit Yattached hereto and made a part hereof. Additionally, at the Closing Purchaser shall pay to Seller the pettycash estimated to be on hand at any of the Company-Operated Retail Propertiesas of the Closing, as determined in accordance with Exhibit Y.  Within forty-five (45) days following theClosing Date, (i) Seller shall reconcile the foregoing estimated amountsin accordance with the procedures set forth in Exhibit Y, and (ii) Selleror Purchaser, as applicable, will make any necessary payments to the other.

 

2.5              Assignment of Agreements andLiabilities.

 

2.5.1           PMPAFranchise Agreements.  At Closing,Seller will assign and convey to Purchaser, and Purchaser shall assume andpurchase from Seller, all of Seller’s assignable and 

 

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transferable rights, title and interest in the PMPA Franchise Agreementsby the Parties’ execution at Closing of an Assignment of PMPA FranchiseAgreements in the form attached as Exhibit T (the “Assignment of PMPAFranchise Agreements”). Notwithstanding the foregoing, Seller hereby reserves the right toremove from the Assignment of PMPA Franchise Agreements any of the DealerSupply Agreements (along with all associated Contracts) at any time prior toClosing by written notice to Purchaser of such removal.  Purchaser acknowledges and agrees that uponreceipt of any such notice, (i) the Dealer Supply Agreement governing thesupply of Branded Fuel to the Dealer-Owned Service Station(s) identifiedin such notice shall not be assigned pursuant to this Agreement and (ii) suchDealer-Owned Service Station shall be removed from the transaction contemplatedby this Agreement and the Purchase Price shall be reduced by the amount of theallocated Purchase Price for such Dealer-Owned Service Station set forth on Exhibit A-4.

 

In the event that litigation isinitiated prior to the Closing arising out of (a) Seller’s attempted assignmentof any PMPA Franchise Agreement under this Section 2.5.1 or (b) thecontemplated execution of the Brand Fee Agreement, Purchaser and Seller shallreasonably cooperate in connection with such proceedings; provided, however,that in the event that any such litigation extends beyond two hundred andseventy (270) days after the Effective Date, either Party may terminate thisAgreement upon ten (10) days prior written notice to the other Party.  In the event of such termination, the Depositshall be released in accordance with Section 3.3.4.

 

2.5.2           EquipmentLeases.  Any Personal Property orEquipment leased by Seller at the time of Closing and the agreements coveringthe lease of such Personal Property or Equipment will be assigned by Seller toPurchaser to the extent permissible by law and the agreements covering thelease of such Personal Property or Equipment. At Closing, Seller will assign and convey to Purchaser, and Purchasershall assume and accept from Seller, all of Seller’s assignable and transferablerights, title and interest in such leases of Personal Property or Equipment.

 

2.5.3           Non-Petroleum Leases. Certain Properties are subject to non-petroleum leases (each suchnon-petroleum lease, an “NPL”). At Closing, Seller will assign to Purchaser and Purchaser shall assumefrom Seller all rights and obligations of Seller under any NPL as such rightsand obligations relate to Properties transferred pursuant to the terms of thisAgreement.  Seller will retain all rightsand obligations pertaining to the portion of any NPL that relates to servicestation properties not included in this sale, if any.  A copy of the Assignment of Non-PetroleumLease is attached as Exhibit U. Seller will have no obligation to obtain any consent required inconnection with the assignment of any NPL. If an NPL to be assigned to Purchaser pursuant to this Agreementrequires, either expressly or by law, the affirmative consent of the tenantunder the NPL to legally effectuate an assignment, then Seller, during theInspection Period, will request such tenant’s consent to the assignment byproviding such tenant written notice from Seller. If Seller obtains suchconsent, Seller shall provide notice to Purchaser. If Seller has not obtainedsuch consent by the date which is thirty (30) days after the end of theInspection Period, Seller will notify Purchaser and Purchaser may: (a) afternotice to and consent of Seller, which consent may be withheld for any reasonwhatsoever, use its own efforts to obtain such tenant’s consent to the extentsuch efforts do not create any additional liability to Seller; (b) enterinto a new lease with such tenant effective as of Closing so long as suchtenant agrees to provide Seller with a termination of the existing leasecontaining a release of Seller from any liability under such lease; or (c) removethe Property subject to such NPL from this Agreement and reduce the PurchasePrice by the amount of the allocated Purchase Price for such Property set forthon Exhibit A-4. Notwithstanding anything contained in this Agreement to the contrary,Seller’s sole obligation with respect to obtaining 

 

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any consent from the tenant under any NPL shall be limited to Sellersending a written request to such tenant; Seller shall have no obligation toincur any expense or to take any other action whatsoever with respect toobtaining any consent.  Seller disclosesto Purchaser that there is an NPL on a portion of Sites 11814, 11680 and 13098set forth on Exhibit A-1 which may require the consent of thetenant to assign such NPL.

 

2.5.4           ReimbursementAgreements.  Seller has entered intoReimbursement Agreements with certain Dealer-Owned Service Stationdealers.  Purchaser shall pay Seller, atClosing, the then current balance due under each of these ReimbursementAgreements related to any Dealer Supply Agreement actually assigned toPurchaser pursuant to Section 2.5.1, and Seller will assign to Purchaserits rights under each such Reimbursement Agreement along with any notesevidencing or collateral securing the reimbursement obligations under suchDealer Supply Agreements.  Copies of theAssignment of Reimbursement Agreement for each Dealer-Owned Service Stationwill be attached as Exhibit X, together with copies of eachrespective Reimbursement Agreement not otherwise already provided to Purchaserprior to the Effective Date.  Thispayment shall be in addition to the Purchase Price.

 

2.5.5           AccessAgreements.  At Closing, Seller willassign to Purchaser, and Purchaser shall assume from Seller, all of Seller’sassignable and transferable rights, representations, responsibilities andobligations, including, without limitation, access payments and indemnificationobligations, in any access agreement relating to any Property, including,without limitation, any agreement with surrounding property owners related toRemediation Activities (collectively, “Access Agreements”).  Purchaser acknowledges that it is solelyresponsible for renegotiating access to Properties and surrounding propertiesas needed for Remediation Activities if agreements granting such access are notassignable or transferable.  Anon-exhaustive list of such Access Agreements is provided as Exhibit D.

 

2.5.6           Statementof Environmental Responsibilities.  Purchaseragrees to assume and abide by all representations, responsibilities andobligations including, without limitation indemnification obligations, ofSeller set forth in any Statement of Environmental Responsibility relating toany Property.  A non-exhaustive list ofsuch Statements is provided as Exhibit W.

 

2.5.7           Other Agreements and Liabilities. At Closing, Seller will assign and convey to Purchaser, and Purchaser shall assumeand purchase from Seller, (a) the Assumed Liabilities and (b) all of Seller’s assignable andtransferable rights, title and interest in the transferred permits and theContracts.

 

2.5.8           EnvironmentalLiabilities.  For the avoidance ofdoubt, as described in Article VII, Purchaser agrees to assume any and allliabilities or Claims arising out of, in connection with, or related to theenvironmental condition of the Properties, whether or not identified in theBaseline Report, Contamination or any Remediation Activities or EnvironmentalLiabilities.

 

2.6              Compliance with RegulatoryApprovals.  Promptly following theEffective Date, Purchaser agrees to determine any and all regulatory approvalsrequired, including, but not limited to, compliance with the Hart-Scott-RodinoAct and the transfer of any Tanks as described in Article XV and/orresponsibility for any Remediation Activities as described in Section 7.3.1.  Purchaser shall promptly initiate contactwith any applicable authority, including, but not limited to the Federal Trade 

 

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Commission, andpromptly complete any necessary applications and pay any required fees ordeposits associated with review and or filing requirements of such authoritiesat its sole cost.  If required, withinfifteen (15) days after the Effective Date, Seller and Purchaser shall file orcause to be filed with the Federal Trade Commission and the United StatesDepartment of Justice any notifications required to be filed under theHart-Scott-Rodino Act with respect to the transactions contemplated herein.  Purchaser shall pay the filing fees under theHart-Scott-Rodino Act, and shall receive a credit of fifty percent (50%) ofsuch filing fees against the Purchase Price at the Closing pursuant to Section 3.2.  Seller and Purchaser shall reasonablycooperate in connection with a Hart-Scott-Rodino Act review.  Seller and Purchaser shall diligentlyprogress their respective applications so as to obtain any necessary approvalsor bring to completion any required review process.  In the event that the applicable GovernmentalAuthority issues a decision prohibiting the transactions contemplated by thisAgreement prior to the end of the Inspection Period, either Party may terminatethis Agreement upon ten (10) days prior written notice to the otherParty.  In the event that the applicableGovernmental Authority requires Purchaser to divest sixty (60) or moreProperties as a condition of obtaining approval of the consummation of thetransactions contemplated by this Agreement, Purchaser may terminate thisAgreement upon ten (10) days prior written notice to Seller.  In the event that (x) the applicableGovernmental Authority has issued a second request pursuant to theHart-Scott-Rodino Act, and (y) any necessary approvals under theHart-Scott-Rodino Act have not been received within one hundred and twenty(120) days after the Effective Date (such period, the “HSR Second RequestPeriod”), then either Party may terminate this Agreement upon ten (10) daysprior written notice to the other Party. In the event of any such termination, the Deposit shall be released inaccordance with Section 3.3.4. Thereafter, neither Party shall have any obligation under this Agreementexcept for those obligations which expressly survive termination.  Until such time as the transactions contemplatedhereby are expressly prohibited by the applicable Governmental Authority oreither Party elects to terminate this Agreement in accordance with this Section 2.6,then Purchaser and Seller shall continue to diligently progress theirrespective applications and approvals as required under this Section 2.6.

 

2.7              Business Licenses and Permits.  Purchaser is solely responsible foridentifying and obtaining any and all certificates, permits, variances and/orlicenses related to the use, occupancy and/or operation of the Properties.  Closing shall not be delayed due to theabsence of any certificate, permit, variance or license.  Nor shall Closing be delayed to process anystate or local background checks, or resolve any pending regulatory permittingissues, including, but not limited to, any Governmental Authority violationnotices.  Purchaser promptly shall filefor all applicable and necessary licenses, certificates, variances and/orpermits for the operation of the Properties, including, but not limited to,permits related to the transfer of beer and wine inventories (and the sale ofthe same to the general public), any state license(s) required to operatethe Properties as service stations selling motor fuels, as well as, insure thatits intended source of fuel possesses all necessary current and valid licensesto operate a fuel distribution business. Before the end of the Inspection Period, Purchaser shall obtain andconfirm to Seller that it possesses all necessary licenses, certificates,variances and permits.  Seller makes noexpress or implied representation about the ability of Purchaser to obtaincertificates, permits, licenses and/or variances needed to use, occupy oroperate any of the Properties.

 

2.7.1           Pending Permit Applications.** **Various permits for renovationand/or improvement of certain Properties may be pending as of Closing.  Seller shall initiate discussions withPurchaser during the Inspection Period and may, subject to mutually agreeableterms, assign to Purchaser whatever rights to such permits and/or plans andapplications Seller may be able to assign.

 

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2.7.2           Ongoing Projects. Certain service stations may be under construction as of Closing.  These service stations shall be identified byPurchaser within five (5) days after the Effective Date. Sellermay, but is not required to, assign to Purchaser and allow Purchaser to assumeSeller’s rights in these projects upon mutually agreeable terms.

 

2.8              Exclusions from Transfer.  Notwithstanding the other provisions of this Article II,the Purchased Assets shall not include any of Seller’s proprietary equipment,intangible property, accounts receivable or notes receivable (other than withrespect to notes evidencing or collateral securing Reimbursement Agreementsassigned to Purchaser pursuant to Section 2.5.4), including withoutlimitation, the following:

 

2.8.1           Back Office System. Seller’s back office computer systems and software (“Back OfficeSystem” or “BOS”) contain proprietary information and are notincluded in the real and personal property subject to transfer under thisAgreement.  Seller’s BOS will be removedfrom the Company-Operated Retail Properties by Closing.  Purchaser shall arrange for Purchaser’s owncomputer hardware and software, as needed, to replace Seller’s BOS.  Except as set forth in Section 16.2, installation of Purchaser’s computer hardware andsoftware shall occur after Closing.

 

2.8.2           IntellectualProperty.  Notwithstanding anythingcontained in this Agreement to the contrary, this Agreement shall not transferor license any right, title or interest in any Trademark, other IntellectualProperty, or any related rights held, licensed or used by Seller or itsAffiliates.  Seller makes norepresentation as to Purchaser’s right to operate under the IntellectualProperty rights of others, and this Agreement will in no way be construed as,or deemed to be, an inducement to Purchaser to infringe any such IntellectualProperty rights.  Seller will not berequired to obtain licenses for Purchaser relating to any third partyIntellectual Property.  Any agreementbetween the Parties with respect to any Seller intellectual property rightsshall be set forth only in the Brand Fee Agreement.

 

2.8.3           LeasedEquipment.  Purchaser acknowledges that, unlesstransferred to Purchaser pursuant to Section 2.5.2 and absent an agreementwith Seller’s vendor to the contrary, this transaction does not include thesale or use of any leased equipment at the Properties and agrees to allowSeller’s vendors up to thirty (30) days’ access after the Closing Date toremove any such equipment.

 

**ARTICLE III****PURCHASE PRICE**

 

3.1              Amount.  The Purchase Price to be paid by Purchaserfor the transfer and sale by Seller of the Purchased Assets (other than Inventoryand cash on hand, payments for which are addressed separately in thisAgreement) is Two Hundred Million U.S. Dollars ($200,000,000.00 USD), payablein accordance with Sections 3.2 and 3.3. Purchaser’s apportionment of the Purchase Price among and for eachProperty and Dealer-Owned Service Station is reflected in the attached Exhibit A-4.

 

3.1.1           Seller’sAllocation of Apportioned Purchase Price. Seller will establish the allocation of Purchaser’s apportioned PurchasePrice for each Property no later than ten (10) days after the EffectiveDate.  Seller’s allocation will includeall Personal Property and Equipment under this Agreement.  Purchaser’s apportionment and Seller’sallocation will be used to:

 

(i)        establishinsurance amounts for the title insurance commitments and owner’s policies(using only the apportioned Purchase Price allocated to land);

 

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(ii)       preparethe Closing statements and escrow instructions;

 

(iii)      prepareaffidavits of value and transfer tax returns (to the extent permitted byapplicable law, using only the apportioned Purchase Price allocated to land,with respect to real estate transfer tax returns); and

 

(iv)      calculaterecordation taxes and recordation fees, if applicable (to the extent permittedby applicable law, using only the apportioned Purchase Price allocated land).

 

Such allocation shall be (a) used to establishany reduction in the Purchase Price due to the removal of any Property orDealer-Owned Service Station from the contemplated transaction pursuant to theprovisions of this Agreement, and (b) shall be in the form of Exhibit A-4.  Seller and Purchaser agree that none of theapportioned Purchase Price or allocation figures that may be set forth in Exhibit A-4are established necessarily for tax purposes or for financial or accountingpurposes but rather to establish Purchaser’s apportionment of the PurchasePrice for each Property and Dealer-Owned Service Station and Seller’sallocation thereof among land, improvements and equipment.  For federal income tax purposes, the PurchasePrice of the Purchased Assets shall be allocated among the Purchased Assets inaccordance with Section 1060 of the Internal Revenue Code of 1986, asamended.  Not later than 30 days afterthe Inventory Reconciliation, Purchaser will provide EMC and EMOC withcompleted Forms 8594 prepared in a manner consistent with the apportionedPurchase Price set forth in Exhibit A-4 and the Purchase Price allocableto the inventory and cash on hand. Seller acknowledges that Purchaser will report for federal income taxpurposes and file federal income tax returns in a manner consistent with theallocations shown on the Forms 8594 provided to Seller.

 

3.2              Method of Payment.  No later than three (3) Business Days beforethe Final Closing Date (or such other date as may be agreed to by Seller),Purchaser shall pay into escrow, or shall cause to be paid into escrow, thePurchase Price minus (a) the principal amount of Deposit actually held inthe Escrow Account or secured by an acceptable letter of credit as of the dateof Purchaser’s payment into escrow of the balance of the Purchase Price, and (b) anamount equal to fifty percent (50%) of the filing fees under theHart-Scott-Rodino Act actually paid by Purchaser pursuant to Section 2.6.  This payment shall include both Purchaser’snon-financed and financed portions of the Purchase Price and shall be made atthe office of the Title Company by wire transfer of immediately available fundsto an interest bearing account designated by the Title Company (the “EscrowAccount”).

 

3.2.1           Interest Credit. Provided Purchaser causes the Purchase Price to be paid into the EscrowAccount in the manner described in Section 3.2, and Closing is not delayed by Purchaser or itslender beyond the Final Closing Date, then Purchaser will receive at Closingfrom the Escrow Account an interest credit on the balance of the Purchase Pricepaid into the Escrow Account pursuant to Section 3.2 for the three (3) daysof deposit into escrow (the “Interest Credit”).  The Interest Credit is to be calculated byusing the London Interbank Offered Rate (“LIBOR”) for three (3) monthsas published by the Wall Street Journal on the fourth (4th)Business Day before the Closing Date.

 

3.2.2           Closing.  At Closingand before the documents to be recorded have, in fact, been recorded, the TitleCompany shall release to Seller all funds within the Escrow Account, minus(subject to the final sentence of this Section 3.2.2) (a) theaggregate amount of interest earned on the funds within the Escrow Account asof the Closing Date, and (b) an amount equal to the Interest Credit, andSeller shall draw down on any letters of credit to the extent securing anyDeposit.  After Seller 

 

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confirms to the Title Company its receipt of funds from the EscrowAccount and all other amounts due from Purchaser pursuant to the terms of thisAgreement (including, without limitation, payments for Inventory), theremaining funds within the Escrow Account shall be released to Purchaser.  Notwithstanding the foregoing, if the Closingis delayed beyond the Final Closing Date due to actions or inactionsattributable to Purchaser, then neither the actual interest earned nor theInterest Credit will be due to Purchaser, and at Closing all amounts within theEscrow Account will be released to Seller.

 

3.3              Deposits.

 

3.3.1           Escrow Account. All deposits referenced in this Section 3.3 and the Extension Period Deposit referenced in Section 5.3shall be delivered by wire transfer in immediately available funds to theEscrow Account or pursuant to an irrevocable and unconditional letter of creditsecuring the Deposits in favor of Seller as beneficiary from a bankinginstitution and in a form and substance, acceptable to Seller in its solediscretion.  Any such letter of credit will: (a) bepayable to Seller on sight in partial or full draws; (b) be assignable bySeller to a beneficiary other than Seller, at Seller’s request, without anycost to Seller; and (c) have an initial expiration date no sooner than one(1) year after the Closing Date.  Atleast thirty (30) days prior to any expiration or cancellation of the letter ofcredit, Purchaser shall deliver a renewal or replacement letter of credit toSeller.  For the avoidance of doubt,Purchaser’s failure to deliver a renewal or replacement letter of credit toSeller shall constitute a Default under this Agreement.  Any and all fees or costs charged by theissuer in connection with any such letter of credit shall be paid byPurchaser.  Any funds delivered by wiretransfer shall be held and disbursed pursuant to the escrow agreement among theTitle Company, Seller and Purchaser, a copy of which is attached as Exhibit G(the “Escrow Agreement”).  ThisAgreement and the Escrow Agreement shall be signed simultaneously by Purchaserand returned to Seller.  Seller willexecute the Escrow Agreement upon receipt thereof and will forward the same tothe Title Company for its execution.

 

3.3.2           Signing Deposit. Upon Purchaser’s execution of this Agreement, Purchaser shall depositTwo Hundred and Fifty Thousand U.S. Dollars ($250,000.00 USD) into the EscrowAccount as the Signing Deposit or provide an acceptable letter of creditsecuring such amount.  If this Agreementis terminated prior to Closing, the Signing Deposit shall be released inaccordance with Section 3.3.4.  IfPurchaser proceeds to Closing, the Signing Deposit shall be released inaccordance with Section 3.2.2.

 

3.3.3           Earnest Money Deposit. Within five (5) Business Days after the Effective Date, Purchasershall deposit the Initial Earnest Money Deposit into the Escrow Account orprovide an acceptable letter of credit securing such amount.  On the first Business Day following the endof the Inspection Period, Purchaser shall deposit the Final Earnest MoneyDeposit into the Escrow Account or provide an acceptable letter of creditsecuring such amount.  If this Agreementis terminated prior to Closing, the Earnest Money Deposit shall be released inaccordance with Section 3.3.4.  IfPurchaser proceeds to Closing, the Earnest Money Deposit shall be released inaccordance with Section 3.2.2.

 

3.3.4           Release of Deposit upon Termination. If this Agreement is terminated prior to Closing, the Deposit (includingthrough any necessary letter of credit draws), or the Signing Deposit portionthereof, shall be released as set forth below. In the event that the Deposit, or relevant portion thereof, is releasedto Purchaser pursuant to paragraphs (v), (viii), (ix), (x), (xi), or (xii) below,in addition to such release, Seller shall pay to Purchaser an amount equal to fifty percent(50%) of the filing fees under the Hart-Scott-Rodino Act actually paid byPurchaser pursuant to Section 2.6.

 

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(i)        Upon Seller’s termination of thisAgreement pursuant to Section 13.1.2(a), due to Purchaser’s Default underthis Agreement, the Deposit shall be released to Seller;

 

(ii)       Upon Seller’s termination of thisAgreement pursuant to Section 13.1.2(d), resulting from the failure of anyof the Conditions Precedent contained in Article XII to have been satisfied, theDeposit shall be released to Seller;

 

(iii)      Upon Seller’s termination of thisAgreement pursuant to Section 5.3.3 or Section 7.2.1, due to Purchaser’sfailure to close on all of the Properties, the Deposit shall be released toSeller;

 

(iv)      Upon Purchaser’s termination of thisAgreement pursuant to Section 3.4, in relation to Purchaser’s financing,the Deposit shall be released to Seller;

 

(v)       Upon eitherParty’s termination of this Agreement pursuant to Section 2.6, due to afailure to receive any required approval under the Hart-Scott-Rodino Act, orpursuant to Section 2.5.1, due to the existence of litigation arising outof the attempted assignment of the PMPA Franchise Agreements or thecontemplated execution of the Brand Fee Agreement, the Signing Deposit shall bereleased to Seller and the balance of the Deposit shall be released toPurchaser;

 

(vi)      Upon Purchaser’s termination of thisAgreement pursuant to Section 13.1.3(a) during the Inspection Period,the Deposit shall be released to Seller;

 

(vii)     Upon Seller’s termination of thisAgreement pursuant to Article VII due to Purchaser’s failure to executerequired documentation prior to Closing, the Deposit shall be released toSeller;

 

(viii)    Upon the Parties’ mutual agreement toterminate this Agreement pursuant to Section 13.1.1, the Deposit shall bereleased to Purchaser;

 

(ix)      Upon Seller’s termination of thisAgreement pursuant to Section 13.1.2(b), due to a change in law orcircumstances after the Effective Date that results in a material impairment ofthe benefit of this Agreement to Seller, the Deposit shall be released toPurchaser;

 

(x)       Upon Seller’s termination of thisAgreement pursuant to Section 13.1.2(c), due to the prevention orprohibition of the contemplated transaction due to any law, injunction,judgment or ruling enacted, promulgated, issued, entered, amended or enforcedby any Governmental Authority  (otherthan any such law, injunction, judgment or ruling enacted pursuant to the Hart-Scott-Rodino Act), theDeposit shall be released to Purchaser;

 

(xi)      Upon Purchaser’s termination of thisAgreement pursuant to Section 13.1.3(b), resulting from the failure of anyof the Conditions Precedent contained in Article XII to have been satisfied, the Deposit shall be released toPurchaser; or

 

(xii)     Upon Seller’s termination of thisAgreement pursuant to Section 17.2, due to Seller’s determination towithdraw the marketing of Branded Fuels in any geographic area in which aProperty is located (a “Market Withdrawal”), the Deposit shall bereleased to Purchaser.

 

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3.4              Financing.  The transaction contemplated by thisAgreement is contingent on Purchaser obtaining a binding, unconditionalfinancing commitment satisfactory to Purchaser prior to the end of theInspection Period.  In the event thatPurchaser is unable to obtain a binding, unconditional financing commitment bysuch date, Purchaser shall promptly notify Seller and Purchaser may terminatethis Agreement upon three (3) days written notice, whereupon the Depositshall be released in accordance with Section 3.3.4.  Purchaser shall deliver to Seller a true andcomplete copy of its financing commitment prior to the end of the InspectionPeriod.

 

**ARTICLE IVFUTURE BUSINESS**

 

4.1              Motor Fuel Volume.

 

4.1.1           Branded Fuel. Purchaser shall sell certain Branded Fuel from the Properties for atleast fifteen (15) years after the Closing Date.  Purchaser shall enter into the Brand FeeAgreement for the sale of Branded Fuel at the Properties, with such agreementhaving an initial period of fifteen (15) years after the Closing Date.  Purchaser acknowledges that from and afterthe Closing Date Seller, in its sole discretion, may execute other brand feeagreements substantially similar to the Brand Fee Agreement with third-partiesin the same market or geographic area as Purchaser.

 

4.1.2           Liquidated Damages. Purchaser agrees that it and its franchise dealers shall sell from theProperties certain Branded Fuel during the 15-year obligation describedabove.  Purchaser acknowledges that (a) suchsale expectation is reasonably based on historical sales from the Propertiesand its expected development of the markets covered by the Brand Fee Agreement;and (b) in the event that the Brand Fee Agreement is terminated, Purchasershall pay to EMOC, as liquidated damages, the amount calculated pursuant to Exhibit FF.

 

4.1.3           Market Withdrawal. Notwithstanding the forgoing, Purchaser will not be subject toliquidated damages for any termination of the Brand Fee Agreement if suchtermination is a result of a Market Withdrawal. While Seller has no current marketing plan to cease marketing BrandedFuels in the areas in which the Properties are located, Purchaser acknowledgesthat Seller continually reviews its areas of operation and therefore, Sellercannot and does not by this Agreement make any representation or warranty thatSeller will continue in the future to market Branded Fuels in any or all of thegeographic areas in which the Properties are located.  A Market Withdrawal will be effective onlywith respect to the Properties in the geographic area(s) in which Sellerhas determined to withdraw the marketing of Branded Fuels.

 

4.2              Convenience Store Branding.

 

4.2.1           CODOand DOSS Properties.  Some of theCompany-Owned Dealer-Operated Properties and Dealer-Owned Service Stations tobe listed on Exhibit L include convenience stores operated underthe *On the Run* brand and are subject to *On the Run* Franchise Agreements executed by the relateddealers which agreements were assigned to TMC Franchise Corporation bySeller.  Purchaser shall have no rightsto *On the Run* franchise revenues or anyobligations to satisfy any *On the Run*franchisor requirements.

 

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4.2.2           *On the Run* CORS Properties.  Purchaser hereby acknowledges that Sellerwill, after the Effective Date, provide TMC Franchise Corporation or anaffiliate thereof, in its capacity as owner of the *On the Run*franchise and related rights, with Purchaser’s contact information.  Such information is provided to allow TMCFranchise Corporation the opportunity to initiate discussions with Purchaserregarding *On the Run* branding and franchiseopportunities at the *On the Run* CORSProperties.

 

4.3              Tank Upgrades.  Purchaser agrees to the complete the upgradeof the existing underground tank system at the Properties described on Exhibit CCwithin the time periods set forth on such Exhibit.  Purchaser shall perform all work required toensure that the systems at the identified Properties meet or exceed applicablelaws and regulations, including, (a) with respect to Site 11814 and Site12005 listed on Exhibit CC, at a minimum, the complete removal ofall existing Tanks and lines and replacement with (i) double wall tanksand double wall product piping, (ii) secondary containment for thesubmersible pumps and island dispensers, and (iii) double wall spillbuckets for fill and vapor connections, and (b) with respect to Site 15965listed on Exhibit CC, at a minimum, the removal of all single wallproduct lines, sumps and spill buckets and replacement with (i) doublewall product piping, (ii) secondary containment for submersible pumps and islanddispensers, and (iii) double wall spill buckets for fill and vaporconnections (collectively, the “Upgrades”). At Closing, Seller shall put in escrow with the Title Company from thePurchase Price the aggregate of all the individual sums shown on Exhibit CCfor the Properties listed (the “Upgrade Amount”) to be held by the TitleCompany pursuant to an Upgrade Escrow Agreement, a form of which is attached asExhibit DD hereto, executed at Closing until such time as theUpgrades at a Property have been completed to Seller’s satisfaction. Uponcompletion of the required Upgrades for a Property, Purchaser shall deliver toSeller notice that the Upgrades have been completed at such Property togetherwith a copy of the registration for new tanks for the Property required underapplicable law. Seller shall have the right to inspect any such Property toconfirm to its satisfaction that the Upgrades have been successfullycompleted.  In the event that Sellerconfirms to its satisfaction that such Upgrades have been completed byPurchaser, Seller shall notify the Title Company of the same and the TitleCompany shall release to Purchaser the Upgrade Amount applicable to suchProperty as shown on Exhibit CC. In the event that Purchaser fails to timely complete the Upgrades at aProperty, Seller, to the extent permitted by applicable law, shall have theright, but not the obligation, upon thirty (30) days notice to access suchProperty in order, to the extent permitted by applicable law, to (1) demolishany tanks and lines at such Property and backfill any resulting hole with peagravel, or (2) perform the work required under this Section 4.3. Inthe event that Seller elects to take any action set forth in clauses (1) or(2) above, then upon completion of said work, Seller shall have the rightto request that the Title Company release to Seller from escrow the UpgradeAmount for such Property.  Purchasershall not assign, convey or transfer, whether directly or indirectly, any Propertyidentified on Exhibit CC prior to the completion of the Upgradesfor such Property.  If Purchaserdetermines to replace or upgrade the underground system at any Property notlisted on Exhibit CC following the Closing Date, Purchaser shall,at a minimum, perform such replacement or upgrade to meet or exceed applicablelaws and regulations, including performing all Upgrades at such Property.

 

4.4              Purchaser’s PMPA Obligations.

 

4.4.1           Obligationsat Closing.  Subject to Section 2.5.1hereof, at Closing EMOC will assign to Purchaser the PMPA FranchiseAgreements.  Purchaser will assume all ofEMOC’s rights and obligations arising from and after the Closing Date under thePMPA Franchise Agreements assigned by EMOC to Purchaser, the PMPA, and anyother applicable law, as the same relate to such PMPA 

 

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Franchise Agreements.  EMOC makesno representation or warranty regarding EMOC’s compliance with PMPA matters orthe accuracy, enforceability, or completeness of any franchise document orinformation.

 

4.4.2           Obligationsfollowing Closing.  Before the statedexpiration date of each PMPA Franchise Agreement assigned by EMOC to Purchaser,Purchaser will, in good faith and in the normal course of business, offer eachfranchisee an agreement for the supply of Branded Fuel, unless such franchiseepreviously has been properly terminated or non renewed for any reason permittedby the PMPA or properly non renewed pursuant to 15 USC 2802(b)(3)(A).  Franchise agreements offered by Purchaser tothe franchisees will be offered in accordance with the PMPA and will comply inall respects with all applicable provisions of the PMPA, the Brand FeeAgreement and any applicable state law.

 

4.4.3           Seller’sMarket Withdrawal.  For the avoidanceof doubt, nothing in this Agreement shall be construed to limit Seller’s rightto implement a Market Withdrawal in accordance with the provisions of the PMPAand all such rights are expressly reserved.

 

**ARTICLE V****SURVEY, TITLE AND CERTAIN DILIGENCE MATTERS**

 

5.1              Surveys.  Within ten (10) days after the EffectiveDate, Seller shall deliver three (3) sets of completed Surveys toPurchaser and one (1) set of completed Surveys to the Title Company.  Purchaser shall reimburse all fees, costs andexpenses incurred by Seller in connection with the Surveys pursuant to Section 6.4.2.  Simultaneous with delivery of the completedSurveys, the surveyor’s legal descriptions will be provided to Seller and theTitle Company as a Microsoft Word document.

 

The Survey for any Property willincorporate the location of all highways, streets, roads, railroads, rivers,creeks or other water courses, fences, easements, rights-of-way and otherencumbrances or encroachments on or adjacent to the Property, including all ofthe title matters shown on the title commitments provided for in Section 5.2.  The Survey will: (a) define the Propertyin square feet; (b) provide a legal description of the Property; (c) containthe North directional arrow at the top of the Survey; and (d) includecertification of the Survey’s accuracy in the form required by the TitleCompany for issuance of the ALTA owner’s title insurance policy, as providedfor in Section 5.4.

 

Any survey agreement entered into pursuant to Section 5.1will provide that, at no cost to Seller, the Survey will remain the property ofSeller in the event Closing does not occur and, in such event, Purchaser shallforfeit any and all rights to the Survey.

 

5.2              Title Commitments.  On or before the Effective Date, Seller willpost preliminary title commitments for each of the Properties to the VirtualData Room, and within five (5) days after the Effective Date, will deliveror cause the Title Company to deliver to Purchaser electronic copies of thepreliminary title commitments together with copies of all exception documentsnoted therein for each of the Properties.

 

5.3              Inspection Period.  Purchaser shall have a period commencing onthe Effective Date and ending sixty (60) days after the Effective Date (the “InspectionPeriod”), within which to inspect and perform its due diligence withrespect to the transactions described in this Agreement, including allenvironmental due diligence as set forth in Section 7.2.  At the end of the Inspection Period,Purchaser 

 

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may, at its option,extend the Inspection Period for an additional thirty (30) days by payingSeller, by wire transfer and in immediately available funds, the ExtensionPeriod Deposit.

 

5.3.1           Disclaimer of Documentation. Notwithstanding any documents Seller may provide Purchaser pursuant tothe terms of this Agreement, Purchaser is advised to conduct such duediligence, including all environmental due diligence as set forth in Section 7.2,as it deems appropriate during the Inspection Period.  Any such documentation, including, withoutlimitation, the Baseline Report, is provided by Seller as a convenience onlywithout representation or warranty and not in substitution for Purchaser’s owndue diligence review.

 

5.3.2           Objections. Subject to Section 5.3.3, if Purchaser has any objections to matters shownon the Surveys or the preliminary title commitments provided pursuant to Section 5.2, which matters materially impair the operation oruse of a Property in a manner that is not consistent with Seller’s current operationsof the Properties (“Objections”), Purchaser shall, prior to the end ofthe Inspection Period, notify Seller of its Objections.  Purchaser shall be deemed to have waived (a) anyObjections not asserted by Purchaser prior to the end of the Inspection Period;and (b) any and all claims and/or causes of action against Seller fordamages or any other remedies related in any manner, directly or indirectly, toany and all defects in and/or exceptions to title to the Properties that arenot otherwise the subject of any Objection.

 

5.3.3           Attempt to Cure. If Purchaser notifies Seller of Objections in accordance with Section 5.3.2, Seller will have the option, in its solediscretion, to cure such Objections prior to Closing.  If Seller elects to cure such Objections,Seller will use commercially reasonable efforts in this regard; provided,however, that Seller shall have no obligation to expend any money in order tocure an Objection.  If Seller elects notto cure an Objection, or if Seller undertakes to cure an Objection but thendetermines that cure is not reasonably achievable, then Seller will give noticeof the same to Purchaser not later than thirty (30) days after the end of theInspection Period.  Upon such notice fromSeller, Purchaser will have ten (10) days to either (a) waive theObjection and accept title to the Property subject to such Objection, and Purchaser shall be deemed to have waived anyand all claims and/or causes of action against Seller for damages or any otherremedies related in any manner, directly or indirectly, to any and all defectsin and/or exceptions to title to the Property; or (b) terminate thisAgreement as to the Property in question by providing Seller with writtennotice.

 

If Purchaser elects to terminate thisAgreement as to a Property in question, the transaction will proceed and thePurchase Price will be adjusted accordingly based on the allocations identifiedon Exhibit A-4.  If notice oftermination under this Section is given for more than five (5) Properties,Seller may give notice of termination of this transaction as to all Propertieswhereupon Purchaser shall have five (5) days to waive the Objectionsinvolved or this transaction shall automatically terminate and the Deposit willbe distributed in accordance with Section 3.3.4.

 

5.4              Title Insurance Policies.  At Closing, Purchaser shall obtain a titleinsurance policy from the Title Company for each Property conveyed andtransferred to Purchaser under this Agreement. Each title insurance policy will insure marketable title to suchProperty, subject only to the Permitted Encumbrances, and be in the amountdetermined pursuant to Section 3.1 (solely with respect to the land valuetherein).

 

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5.5              Conveyance of Title.  At Closing, Seller will convey title to theFee Properties by Deed to Purchaser. Purchaser and Seller agree that title to each Property will betransferred subject to the following (collectively, the “PermittedEncumbrances”):

 

(i)               The lien for real property taxes for thecurrent year provided the same are not due and payable prior to or as of theClosing Date, and any liens for special assessments which as of the ClosingDate are not due and payable;

 

(ii)              all matters disclosed in the titlecommitments or Surveys delivered pursuant to Sections 5.1 and 5.2 that areapproved, accepted, waived, or otherwise not objected to by Purchaser inaccordance with Section 5.3;

 

(iii)             all laws, ordinances, statutes, ordersand regulations to which the Property is subject, including, withoutlimitation, all building, and zoning ordinances, laws and regulations and allEnvironmental Laws, including, but not limited to, any notices of violations or non-compliancecitations;

 

(iv)             any matters or circumstances that a newor updated survey or physical inspection of the Property might disclose;provided, however, that Seller shall not permit any new encumbrances, liens oreasements to be recorded after the expiration of the Inspection Period;

 

(v)              allexisting leases and/or rights of any subtenant or licensee of Seller occupyingany Property on the Closing Date; and

 

(vi)             allEngineering and Institutional Controls.

 

**ARTICLE VI****CLOSING**

 

6.1              Closing; Closing Date.  The Closing, consisting of the Parties’execution and delivery of all the documents referred to in this Agreement,including, but not limited to, Seller’s delivery of the Deeds, the Assignmentof Leases, the Assignment of PMPA Franchise Agreements, the Assignment and  Assumption Agreement, and the Bills of Sale,will take place at Seller’s offices located at 3225 Gallows Road, Fairfax,Virginia 22037, or at another mutually agreed upon location.  Closing will occur on the Final Closing Dateor, if earlier, on the date that is three (3) Business Days following thesatisfaction or waiver of all of Conditions Precedent; provided that, if all ofthe Conditions Precedent have not been satisfied or waived as of the FinalClosing Date, Seller may, but is not obligated to, extend the Final ClosingDate to such date as it may deem appropriate. Purchaser and Seller agree to conduct a pre-closing seven (7) daysbefore Closing with the Title Company in Fairfax, Virginia, or another mutuallyagreed upon location.  The pre-closing isintended to ensure that all documents and other closing items required underthis Agreement have been delivered, or will be delivered, to the Title Companyso that Closing may occur as scheduled. Notwithstanding the foregoing, the Parties agree that Closing may beconducted in whole or in part through the Title Company serving as escrow agentand by overnight mail and federal funds wires, in which case the pre-closingmay be conducted in the same manner.

 

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6.2              Seller’s Responsibilities atClosing.

 

6.2.1           Fee Properties. At Closing, Seller will deliver to the Title Company and Purchaser aDeed duly executed and acknowledged by Seller for each of the FeeProperties.  The Deed for each Fee Propertywill contain the legal description of the respective Property provided by theSurvey.

 

6.2.2           Lease Properties. At Closing, Seller will deliver to the Title Company and Purchaser anAssignment of Leases duly executed by Seller for the Lease Properties.

 

6.2.3           Personal Property and Equipment. At Closing, Seller will deliver to the Title Company and Purchaser Billsof Sale duly executed by Seller for all Personal Property and Equipment sold aspart of this transaction.

 

6.2.4           PMPAFranchise Agreements.  At Closing,EMOC will deliver to the Title Company and Purchaser an executed Assignment ofPMPA Franchise Agreements.

 

6.2.5           OtherAgreements and Liabilities.  AtClosing, Seller will deliver to the Title Company and Purchaser an executedAssignment and Assumption Agreement.

 

6.2.6           Corporate Authority. At Closing, Seller will deliver to the Title Company and Purchasercertificates of incumbency and evidence of corporate authority with respect tothe execution of this Agreement and all documents required by this Agreement,in such form and content as the Title Company reasonably may require.

 

6.2.7           BrandFee Agreement.  At Closing, EMOC willdeliver to the Title Company and Purchaser an executed Brand Fee Agreement.

 

6.2.8           Other Closing Documents. At Closing, Seller will deliver all other standard closing documents asmay be required by state, federal or local authorities, including W-9 forms,and a certificate of non-foreign status.

 

6.3              Purchaser’s Responsibilities atClosing.

 

6.3.1           Purchase Price. At Closing, Purchaser shall pay the Purchase Price by causing it to bereleased from the Escrow Account (or authorizing Seller to draw down any letterof credit securing a Deposit) in accordance with the terms of this Agreementand will pay or cause to be paid any other amounts owed to Seller under thisAgreement, including, without limitation, those amounts contemplated bySections 2.4, 2.5.4, and 2.6.

 

6.3.2           Fee Properties. At Closing, Purchaser will deliver to the Title Company and Seller aDeed, duly executed and acknowledged by Purchaser, for each of the FeeProperties.

 

6.3.3           Lease Properties. At Closing, Purchaser will deliver to the Title Company and Seller anAssignment of Leases duly executed by Purchaser for the Lease Properties.

 

6.3.4           Personal Property and Equipment. At Closing, Purchaser will deliver to the Title Company and Sellerexecuted Bills of Sale duly executed by Purchaser.

 

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6.3.5           PMPAFranchise Agreements.  At Closing,Purchaser will deliver to the Title Company and EMOC an executed Assignment ofPMPA Franchise Agreements duly executed by Purchaser.

 

6.3.6           OtherAgreements and Liabilities. ** ** At Closing, Purchaser will deliver to theTitle Company and Seller an executed Assignment and Assumption Agreement.

 

6.3.7           Environmental and Tank TransferDocuments.  At Closing, Purchaser willdeliver or will have delivered to the Title Company and Seller: (a) documentationrequired by Governmental Authorities necessary to transfer Tanks in accordancewith Article XV and Remediation Activities in accordance with Section 7.3.1duly executed by Purchaser; (b) a release of liability for theenvironmental condition of the Properties in the form of Exhibit Q;and (c) a notification letter directed to the appropriate GovernmentalAuthority advising such Governmental Authority of the transfer ofresponsibility for the environmental condition of the Properties in the form ofExhibit R, all as set forth in Article VII.

 

6.3.8           Corporate Authority. At Closing, Purchaser will deliver to the Title Company and Sellercertificates of incumbency and evidence of corporate authority, for theexecution and delivery of this Agreement and all documents required by thisAgreement, in such form and content as the Title Company reasonably mayrequire.

 

6.3.9           BusinessLicenses and Permits.  Purchaser willdeliver to Seller a duly executed certificate confirming that it possesses allnecessary licenses, certificates, variances and permits necessary to use,occupy or operate any of the Properties.

 

6.3.10         TaxExemption Certificates.  Purchaserwill provide Seller with properly completed exemption certificates or currentlicense numbers for any tax from which Purchaser claims exemption.  If Purchaser fails to provide the appropriateexemption certificate or license numbers, Seller shall invoice Purchaser forthe tax, and Purchaser shall pay the tax as invoiced.

 

6.3.11         BrandFee Agreement.  At Closing, Purchaserwill deliver to the Title Company and Seller an executed Brand Fee Agreement.

 

6.3.12         Other Closing Documents. Purchaser will deliver all other standard closing documents as may berequired by the Title Company or state, federal or local authorities.

 

6.4              Closing Costs.

 

6.4.1           Property Taxes; Rents; Assessments;Utilities.  Any general real estate orpersonal property taxes, rents, and special taxes or assessments for the thencurrent year relating to the Properties will be prorated as of the Closing Date and adjusted at Closing.  If Closing occurs before taxes are finalizedfor the then current year, the tax apportionment at Closing will be based onthe latest tax rate as applied to the latest assessed valuation of theProperties.  The Title Company and Sellerwill collect from Purchaser at Closing, and the Title Company shall pay out ofthe collected funds, all sales taxes applicable to the Personal Property andEquipment transferred to Purchaser under this Agreement.  All utilities and other pre-paid expenses,customarily adjusted for commercial real estate closings conducted in theProperty’s jurisdiction, will be adjusted as of the Closing Date.  In the event that collected funds areinsufficient to pay all such expenses, Purchaser promptly shall pay the sameand 

 

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provide proof of payment to the Title Company and Seller.  If a balance remains with the Title Companyafter all amounts due under this Section 6.4.1 are paid by the Title Company, the Title Companyshall refund the balance to Purchaser.

 

6.4.2           Surveys; Title Insurance; Taxes. Seller will pay for the cost of the title commitments (subject to thefollowing sentence) as well as recording fees and transfer taxes customarilydue from a seller on the transfer of property in the Property’s jurisdiction asof the Closing Date, exclusive of any transfer taxes imposed with respect toany mortgage or deed of trust placed on the Properties as part of Purchaser’sfinancing of the acquisition of the Properties and other traditional purchasercosts.  Purchaser shall pay for anyadditional costs, fees or expenses of the Title Company to issue any extendedcoverage, the costs of any title endorsements requested by Purchaser, anylender coverage, the Survey for each Property as well as all costs associatedwith title insurance premiums and/or with any mortgage(s) and transfer ofPersonal Property and Equipment including, but not limited to, transfer taxes, and recording fees customarily duefrom a transferee, and any and all sales taxes, excise taxes, UCC search feesand UCC filing fees.  Each Party shallpay fifty (50%) percent of any costs charged by the Title Company for escrowservices.

 

6.4.3           Other Closing Costs. Each Party will bear its own fees, costs and expenses associated withthe contemplated transaction, including attorneys’ fees, appraisal, brokerage,consulting and/or due diligence costs, and any other related fees and expenses.

 

6.4.4           Bulk Sales Compliance. For Properties located in jurisdictions imposing a bulk transfer law onthe transfer of Inventory, Purchaser and Seller will cooperate with each otherso as to allow Seller or Purchaser, as applicable, to submit and complete in atimely fashion all Bulk Sale notices and filings, to the extent necessary tocomply with such law.

 

**ARTICLE VIIENVIRONMENTAL MATTERS**

 

7.1              Definitions.

 

7.1.1           BaselineReport****means collectively those  environmental documents or reports for the Properties that have been postedby the Seller to the Virtual Data Room on the thirtieth (30th) dayafter the end of the Inspection Period at 12 noon Eastern Standard Time.

 

7.1.2           Contamination****means the presence, whether known orunknown, at, on, under, originating or migrating from any Property of anychemical, compound, material, substance or other matter that: (a) is aflammable, corrosive, explosive, hazardous, toxic or regulated material,substance or waste, or other injurious or potentially injurious material,whether injurious or potentially injurious by itself or in combination withother materials; or (b) is controlled, designated in, regulated orgoverned by any Environmental Law. “Contamination” also shall include anyincrease in Contamination.

 

7.1.3           Engineeringand Institutional Controls means those restrictions and requirementsimposed or permitted by Seller or any Governmental Authority with respect toactivities on and/or the use of the Properties, including, without limitation,easements, paving caps, engineered barriers, groundwater restrictions, activityand use limitations or restrictions pursuant to applicable state law including,without limitation, M.G.L. c. 21E, § 6 and 310 C.M.R. 40.1000; 40.1012 et seq.in Massachusetts, N.H. Rev. Stat. Ann. Section 147-F:15 and N.H. CodeAdmin. R. Ann. Env-Or 601.01, 

 

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602.01 and 608 et seq. in New Hampshire, and Rhode Island Gen. Laws Title23, Chap. 19.1 and Rhode Island Department of Environmental Management Rules andRegulations for the Investigation and Remediation of Hazardous MaterialReleases, § 8.09; Appendix G in Rhode Island, environmental land use controls,restrictive covenants, well drilling prohibitions, zoning restrictions, specialbuilding permit requirements, deed notices, and registration of sitescontaining Contamination.

 

7.1.4           EnvironmentalLaw or Environmental Laws means any and all federal, state, or locallaws, statutes, ordinances, rules, decrees, orders, or regulations relating tothe environment, hazardous substances, materials, or waste, toxic substances,pollutants, or words of similar import, or environmental conditions at, on,under, or originating or migrating from any Property, or soil, water andgroundwater conditions, including, but not limited to, the ComprehensiveEnvironmental Response, Compensation and Liability Act of 1980, as amended, 42U.S.C. § 9601, *et seq*., the ResourceConservation and Recovery Act, 42 U.S.C. § 6901, *et seq*.,the Toxic Substances Control Act, as amended, 15 U.S.C. § 2601, *et seq*., the Clean Air Act, as amended, 42 U.S.C. § 1857, *et seq*., the Federal Water Pollution Control Act, asamended, 42 U.S.C. § 1251, et seq., the Federal Hazardous Materials TransportationAct, 49 U.S.C. § 1801, *et seq*., anyamendments to the foregoing, and any similar federal, state or local laws,statutes, ordinances, rules, decrees, orders or regulations.  To the reasonable knowledge of Seller, Sellerhas provided Purchaser with all consent decrees applicable to the Propertiescurrently in its possession.

 

7.1.5           EnvironmentalLiabilities means any and all obligations, responsibilities, Claims andliabilities, whether under any Environmental Law or otherwise, with respect toContamination or Seller’s or Purchaser’s compliance with Environmental Laws atthe Properties.

 

7.1.6           GovernmentReimbursement Fund means a fund administered by a Governmental Authorityresponsible for considering and issuing reimbursement for certain eligibleRemediation Activities at the Properties.

 

7.1.7           Governmental Authoritymeans any governmental (federal, state, local orother), regulatory, judicial, or other competent authority, including withoutlimitation, an authority responsible for the administration or collection ofany tax; a body or self-regulating entity responsible for the administration ofEnvironmental Laws, including, with respect to remediation, RemediationActivities, and determining NFA Status in Massachusetts, a Licensed SiteProfessional licensed under M.G.L. c. 21A, § 19 et seq.; a body orself-regulating entity responsible for any or all parts of the energy sector;and a body or self-regulating entity responsible for planning and relatedlegislative activities. “Governmental Authority” includes any person appointedby any of the foregoing to carry out an investigation or an inquiry.

 

7.1.8           No Further Action Status or NFA Status means either (i) awritten determination received from the Governmental Authority havingjurisdiction over the Properties or Remediation Activities that no furtherremedial activities are required to meet applicable industrial/commercialclean-up standards (excluding periodic monitoring) under applicableEnvironmental Laws; or (ii) when all necessary remedial activities havebeen completed to meet applicable industrial/commercial clean-up standardspursuant to a remedial investigation, remediation or other environmentalresponse workplan approved by the appropriate Governmental Authority if theapplicable Environmental Laws do not provide for such a  written determination.  If Purchaser is unable to achieve (i) or(ii) above, only then No Further Action Status or NFA Status means whenall necessary

 

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remedial activities have been completed under applicable EnvironmentalLaws to meet applicable industrial/commercial clean-up standards pursuant to a remedialinvestigation, remediation, or other environmental response workplan approvedby the appropriate Governmental Authority if the Governmental Authority hasunreasonably delayed or refused to provide such a written determination.

 

7.1.9           RemediationActivities means any site investigation, study, assessment, testing,monitoring, containment, removal, disposal, closure, corrective action,remediation (whether active or passive), natural attenuation, bioremediation,response, treatment, cleanup or abatement work, and operations and maintenance,whether on-site or off-site, of Contamination required to achieve NFA Status.

 

7.1.10         RemediationConsultant means one or more third-party consultants responsible forundertaking environmental assessments at the Properties prior to Closing,including without limitation, investigation of the Properties’ environmental condition.

 

7.1.11         RemediationContractor or Remediation Contractors means one or moreenvironmental engineering firms engaged by Purchaser to perform RemediationActivities.

 

7.2              Environmental Due Diligence.

 

7.2.1           Environmental Assessment. Seller has contracted for Phase I evaluations of theProperties, which will be made available to Purchaser in the Virtual Data Room uponcompletion.    Phase I protocolsgenerally follow the ASTM E-1527-05 Standard. Seller will provide Purchaser access to relevant environmental reportscurrently maintained by Seller’s third-party environmental consultants,including, but not limited to, soil and water studies for Properties withactive environmental cases.  Seller willmake information available through the Virtual Data Room.  Purchaser also may supplement the Seller’sRemediation Consultants’ efforts with additional environmental due diligence atPurchaser’s expense as provided in Section 7.2.2.

 

Seller reserves the right toundertake additional environmental testing and compliance examinations of theProperties, as Seller may desire, and undertake any work or correctivemeasures, at its option, prior to Closing. If Seller so elects, Seller willnotify Purchaser, to the extent practicable, and provide Purchaser with a copyof any additional environmental assessments or other documentation concerningsuch work or corrective measures. Seller shall post a copy of the same to theVirtual Data Room.

 

In addition, Seller may, at itssole discretion, elect to remove any Property or Properties from this Agreementfor environmental reasons, in which case the Purchase Price shall be adjustedin accordance with the allocations indentified on Exhibit A-4 for thoseindividual Properties removed from the Agreement.

 

Prior to the expiration of theInspection Period, Purchaser may elect to remove up to five percent (5%) of theProperties from this Agreement for environmental reasons, in which case thePurchase Price shall be adjusted in accordance with the allocations identifiedon Exhibit A-4 for those individual Properties removed from theAgreement.  If Purchaser provides noticeof termination under this Section for more than five percent (5%) of theProperties, Seller may give notice of termination of this transaction as to allProperties whereupon Purchaser shall have five (5) days to identify nomore

 

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than five percent (5%) of the Propertiesto remove from this Agreement or this transaction shall automatically terminateand the Deposit will be distributed in accordance with Section 3.3.4.

 

Seller and Purchaser each shall beresponsible for paying their respective costs and expenses, including attorney’sfees and outside consultants’ fees, incurred during the described environmentalinvestigation, testing and due diligence, as well as related activities, priorto Closing.

 

7.2.2           EnvironmentalDue Diligence.  Purchaser will haveaccess to the documents comprising the Baseline Report posted to the VirtualData Room.  Seller may provide Purchaservarious documentation prior to the execution of this Agreement, including, butnot limited to environmental reports and any such documentation is provided asa convenience only without representation or warranty and not in substitutionfor Purchaser’s own due diligence review. In addition, Purchaser may perform additional environmental testing atthe Properties at its own expense during the Inspection Period.  If Purchaser elects to perform any additionalenvironmental testing at the Properties, Purchaser shall notify Seller inwriting and execute Seller’s Right of Access Agreement (set forth on Exhibit E-1)at least five (5) days in advance of the date that such additionalenvironmental testing is to occur.  Anyadditional testing performed by Purchaser shall be completed, with resultsforwarded to Seller, not later than the end of the Inspection Period.

 

Purchaser’s entry upon theProperties for the purposes of any environmental assessment or testing shall bedone at Purchaser’s sole risk and expense and shall be pursuant to the terms ofSeller’s Right of Access Agreement and in strict compliance with Seller’sSubsurface Clearance “Drilling” Protocol (set forth on Exhibit E).  Purchaser also shall comply with any otherlegal requirements such as obtaining licenses, drilling permits, and otherauthorizations that may be necessary to conduct the desired activities.  Purchaser will obtain and provide to Sellerthe executed Notification of Consultant for Site Access Agreement, attachedhereto as Schedule E-1B to Exhibit E-1, from all of Purchaser’sRemediation Consultants prior to such Remediation Consultants’ commencement ofany work on the Properties.  Purchaser’sdata may be added to the Virtual Data Room at Seller’s discretion.

 

7.2.3           Deliveryof Data. Seller or its designee(s) will deliver the documentscomprising the Baseline Report to the Virtual Data Room as suchinformation is developed and becomes available. A schedule of the contents available on the Virtual Data Room onthe thirtieth (30th) day after the end of the InspectionPeriod at 12 noon Eastern Standard Time shall be attached to this Agreement asSchedule Q to Exhibit Q, and as of that date and time shall bedeemed for all purposes to constitute the final Baseline Report.  The documents posted to the Virtual Data Room willbe downloaded to electronic media for distribution to the Parties within thirty(30) days after the Effective Date and within thirty (30) days after the Closing Date.

 

7.2.4           NoWarranty of Baseline Report. Purchaser understands and agrees that theBaseline Report does not include all of Seller’s files that may relate to theProperties, nor does Seller make any representation or warranty as to theaccuracy or completeness of the documents comprising the Baseline Report.

 

7.2.5           IndependentVerification of Baseline Report. At Closing, Purchaser shall acknowledge byits execution of Exhibit Q that it had an opportunity to conductits own independent investigation regarding the environmental condition of theProperties and also had the opportunity for 

 

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independent verification of the Phase I evaluations, the environmentalcondition of the Properties, and any other environmental-related informationcomprising the Baseline Report.

 

7.2.6           Acknowledgementsand Assumption of Risk. PURCHASER SPECIFICALLY ACKNOWLEDGES THAT ITUNDERSTANDS THE PROPERTIES HAVE BEEN USED FOR COMMERCIAL PURPOSES INCLUDING THESTORAGE, DISTRIBUTION AND MARKETING OF MOTOR FUELS, PETROLEUM, PETROLEUM-BASEDPRODUCTS AND OTHER CHEMICALS, AND THAT THE ENVIRONMENT, INCLUDING BUT NOTLIMITED TO, THE SOIL AND SUB-SOIL OF THE PROPERTIES AND THE SOIL, AIR, LAND,GROUNDWATER AND WATER ON, UNDER, NEAR OR ADJACENT  THERETO AND DRAINS, SEWERS, PIPES, WATERCOURSES AND WATER TABLES AT, ON, UNDER OR IN THE VICINITY OF THE PROPERTIES MAY HAVEBEEN CONTAMINATED OR IMPACTED BY OIL OR OTHER CONTAMINATION. PURCHASEREXPRESSLY ACCEPTS AND ASSUMES ALL RISKS, WHETHER KNOWN OR UNKNOWN, ASSOCIATEDWITH THE FOREGOING.

 

PURCHASER ACKNOWLEDGES THAT PURCHASER ISBEING GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTIES AND TO OBTAINSATISFACTORY EVIDENCE OF THE CONDITION OF THE PROPERTIES FROM SOURCES OTHERTHAN SELLER AND ITS AGENTS OR CONTRACTORS AND THAT PURCHASER WILL CONDUCT SUCHINSPECTIONS OF THE PROPERTIES AND REVIEW ALL MATTERS DETERMINED BY PURCHASERNECESSARY OR APPROPRIATE IN ORDER TO DETERMINE WHETHER THE PROPERTIES ARESUITABLE FOR PURCHASER’S INTENDED USE.

 

PURCHASER EXPRESSLY ACKNOWLEDGES,AGREES, AND UNDERSTANDS THAT PURCHASER IS ACQUIRING RESPONSIBILITY FOR THESEPROPERTIES IN AN “AS IS, WHERE IS” NATURE, WITH ALL FAULTS AND DEFECTS, LATENTOR OTHERWISE, WITHOUT LIMITING THE “AS IS, WHERE IS” NATURE OF THE TRANSFER OFTHE PROPERTIES.  IT IS UNDERSTOOD ANDAGREED THAT SELLER IS MAKING NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSOR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE PROPERTIES, INCLUDING,BUT NOT LIMITED TO, THE PROPERTIES’ HABITABILITY, SUITABILITY, MERCHANTABILITYOR FITNESS FOR A PARTICULAR PURPOSE, THE PRESENCE OR ABSENCE OF CONDITIONS ONTHE PROPERTIES THAT COULD GIVE RISE TO A CLAIM FOR PERSONAL INJURY, PROPERTY ORNATURAL RESOURCE DAMAGES, THE PRESENCE OF HAZARDOUS OR TOXIC SUBSTANCES,CONTAMINANTS OR POLLUTANTS AT, ON, UNDER, OR ORIGINATING OR MIGRATING FROM THEPROPERTIES, THE INCOME OR EXPENSES FROM OR OF THE PROPERTIES, THE STATUS OF THEREGISTRATION OF THE TANKS, FIXTURES, STRUCTURES, AND ALL OTHER PERSONALPROPERTY, EQUIPMENT AND DISPENSERS, OR THE CONDITION OF, THE MERCHANTABILITY ORTHE FITNESS FOR ANY PARTICULAR PURPOSE OF ANY OF THE AFOREMENTIONED.

 

7.3              Transfer of RemediationActivities.  Promptly following theEffective Date and prior to Closing, Purchaser agrees to determine any and allregulatory approvals required to effectuate the transfer of responsibility forexisting Remediation Activities with respect to any Property including, withoutlimitation, pursuant to 310 C.M.R. 40.0000; 40.0560; 40.0720 in Massachusetts,N.H. Code of Admin. R. Ann. Env-Or 607 in New Hampshire, and Rhode IslandRemediation Regulations, DEM-DSR-01-93, § 10.03 in Rhode Island.  Purchaser shall be solely responsible forcompliance with all 

 

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applicable Environmental Laws necessary totransfer responsibility for Remediation Activities, if allowed by law, fromSeller to Purchaser effective no later than thirty (30) days after Closing,provided, however, Seller shall cooperate in good faith with Purchaser withregard to execution of necessary documents.

 

7.4              Environmental ResponsibilityFollowing Closing.

 

7.4.1           Purchaser’sRemediation Responsibility.  From andafter Closing, Purchaser shall be solely responsible, at no expense to Seller,for any and all environmental issues and Remediation Activities (whether arisingprior to or after Closing), including Contamination, at, on, under ororiginating from the Properties.  Sellerwill transfer Environmental Liabilities to Purchaser for the Properties atClosing.

 

7.4.2           Seller’sRemediation Responsibility.  From andafter Closing, Seller shall have no responsibility for Contamination at theProperties, including, but not limited to, any obligation to remediate any ofthe Properties.

 

7.4.3           Purchaser’sExpress Assumption of All Environmental Liabilities. Purchaser specificallyacknowledges and agrees that it is solely responsible at its sole expense for,and assumes all liabilities and risk associated with, any and all Contaminationand Environmental Liabilities.

 

If Purchaser transfers or assignsin part or all of its interests in the Properties, Purchaser agrees that suchtransfer or assignment will not release Purchaser from its assumption ofEnvironmental Liabilities including its obligation to complete all RemediationActivities and Engineering and Institutional Controls necessary to achieve NFAStatus.

 

Purchaser acknowledges that noliability or Claim arising out of, in connection with, or related to theenvironmental condition of the Properties, Contamination or any RemediationActivities or Environmental Liabilities (all of which are expressly assumed byPurchaser pursuant to this Agreement) will be asserted as or deemed to be an “ExcludedLiability.”

 

Seller shall have no liability orresponsibility whatsoever to investigate and/or remediate Contamination, exceptfor Contamination first caused solely by activities of Seller or its employees,agents or contractors after the Closing Date. The sale of petroleum products by Seller to Purchaser or its suppliersin and of itself shall not constitute a basis for a claim that Seller or itsemployees, agents or contractors caused Contamination after the Closing Date.

 

In accordance with Section 2.5.5, atClosing, Purchaser shall assume all liabilities and obligations associated withor related to the Access Agreements.

 

In accordance with Section 2.5.6, atClosing, Purchaser shall assume all liabilities and obligations associated withor related to Statements of Environmental Responsibilities.

 

7.4.4           DocumentsExecuted at or Prior to Closing.  Ator prior to Closing, Purchaser shall execute and submit to Seller all documentsidentified in this Article VII and Section 6.3.7.  Purchaser also shall send or cause to havesent the Notification Letter (Exhibit R) and such otherdocumentation as required under Section 7.3.4 to all applicableGovernmental Authorities in connection 

 

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with the Properties and promptly provide copies of such NotificationLetter(s) and documentation to Seller.

 

Pursuant to Environmental Law orother applicable law, no later than thirty (30) days after the Closing Date orwithin such shorter time period as may be required, including withoutlimitation, prior to Closing, Purchaser shall enter into any other necessaryagreements or submit necessary documentation that is required to transfer fromSeller to Purchaser, agreements or obligations regarding the Properties andPersonal Property and Equipment. Purchaser shall take all necessary actions to substitute itself as the responsibleparty for any actions or activities relating to Remediation Activities orContamination at, on, under, or originating or migrating from the Properties,including, but not limited to, the assumption of Seller’s obligations under anyAccess Agreements or Statements of Environmental Responsibility, as providedfor in Sections 2.5.5 and 2.5.6, as well as environmental compliance.  This shall also include, without limitation,the execution or assumption of all agreements or consent orders containing termsand conditions required by any Governmental Authority for Purchaser to fulfillits obligations under this Agreement.

 

Purchaser further agrees toundertake, at its sole expense, from and after the Closing Date, all otherreporting and notification required under the Environmental Laws for Contaminationand/or Remediation Activities and shall undertake, in good faith and with duediligence, all Remediation Activities of Contamination required by the relevantGovernmental Authorities and in compliance with the Environmental Laws.

 

Failure to execute the foregoingdocuments and any other documents required in Article VII constitutes abreach and Default by Purchaser of this Agreement.  Thereafter, Seller may terminate thisAgreement, in which event the Deposits will be distributed in accordance with Section 3.3.4.

 

7.5              Government Reimbursement Fund.

 

7.5.1           Seller’sAssignment.  Subject to Section 7.5.2,as of Closing, Seller transfers to Purchaser all rights (if any) to paymentfrom the Government Reimbursement Fund relating to each of the Properties.Seller, however, makes no warranties or representations concerning Purchaser’sability to recover against any Government Reimbursement Fund.  Purchaser specifically acknowledges that itsright to make or recover on a claim from a Government Reimbursement Fund foreligible costs may be impaired as a consequence of the specific circumstancesdescribed in the letter from ExxonMobil to the applicable GovernmentalReimbursement Fund, attached as Exhibit AA.

 

7.5.2           Seller’sIncurred Costs.  Notwithstanding Section 7.5.1,to the extent that any Seller has made a request or claim for reimbursementfrom any Governmental Authority as of the Closing Date, Purchaser will agree toauthorize (and execute appropriate documentation to facilitate) such Seller’sright to receive any outstanding reimbursement request. Purchaser acknowledgesthat it has no rights to such claims or reimbursements. Purchaser releases anyclaims against past or future reimbursements for Remediation Activitiesundertaken prior to the Closing.  Anon-exhaustive list of such pending claims for reimbursement from anyGovernment Reimbursement Fund is provided as Exhibit O.

 

7.6              Release.  Purchaser expressly understands and agrees toaccept the conveyance of the Properties, in their “AS IS, WHERE IS” conditionas of Closing, Purchaser shall make no Claim against 

 

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the Seller-RelatedParties with respect to: (a) Contamination; (b) the Baseline Report,any Remediation Consultant, Remediation Activities, Engineering andInstitutional Controls, and Government Reimbursement Funds; (c) allcontracts and agreements between the Purchaser and any Remediation Contractors;(d) the environmental condition of the Properties; (e) the Seller’sownership or operation of the Properties; and (f) any EnvironmentalLiabilities.  The Purchaser shall releasethe Seller-Related Parties from ANY AND ALL CLAIMS, INCLUDING, BUT NOTLIMITED TO, THOSE ARISING FROM THE NEGLIGENCE (INCLUDING GROSS NEGLIGENCE ANDSTRICT LIABILITY) AND WILLFUL MISCONDUCT, OF THE SELLER-RELATED PARTIES PRIORTO CLOSING, whether such claims are now existing or arising in the future,foreseen or unforeseen, known or unknown, at law or in equity, including thosewhich arise out of or relate to or result in any way from, allegedly or infact, the matters set forth in (a) through (f) above including,without limitation, the condition of the Properties, any Contamination, or theownership or operation of the Properties by Seller. This release shall include,but is not limited to: (x) any and all Claims under the EnvironmentalLaws; (y) any and all Claims for injury, death, destruction, loss ordamage to the person or property of the Purchaser arising out of theenvironmental condition of the Properties and the improvements and theEquipment on the Properties and/or the existence of Contamination at, on,under, or migrating or originating from the Properties; and (z) any andall obligation and liability for further assessment, cleanup and remediation ofany and all Contamination at the Properties. Purchaser expressly assumes allsuch liability and obligations related to the foregoing. To evidence Purchaser’srelease of the Seller-Related Parties as aforesaid, Purchaser shall execute atClosing and as a condition of Closing the environmental release attached heretoas Exhibit Q and the Notification Letter attached hereto as Exhibit R,as well as such other documents as may be required by the GovernmentalAuthority to evidence the transfer of Environmental Liabilities to Purchaser.

 

7.7              Post Closing Access.  Upon request by Seller in connection with anywritten request or demand from any Governmental Authority or in connection withany Listed Claim, Purchaser shall provide for and permit post-Closing access tothe Properties, at no cost to Seller, as any of the Seller-Related Parties mayrequire, to undertake any environmental assessment, investigation, testing,Remediation Activities, and Engineering and Institutional Controls that Sellerdeems necessary in its sole discretion. Such access shall include, but is not limited to, the right but not theobligation to conduct such tests, take such groundwater or soil samples,excavate, remove, dispose of Tanks and soil, and treat the soil andgroundwater, conduct and/or continue environmental investigation, testing andRemediation Activities, and undertake such other actions as are reasonablynecessary pursuant to such request. Seller shall use commercially reasonableefforts to minimize disruption of the Purchaser’s business activities duringany demolition, Tank removal, remediation, soil removal and other activities.Notwithstanding anything to the contrary in this Agreement or its Exhibits,Purchaser shall provide Seller with exclusive access rights to the Properties toobserve and/or confirm Purchaser’s timely discharge of Purchaser’s Upgradeobligations with respect to Tanks and/or any Remediation Activities undertakenby or on behalf of Purchaser. The applicable Seller-Related Party shall providePurchaser as much advance notice as reasonably practical of all potentiallydisruptive or intrusive activities to be undertaken on the Properties; suchnotice may be in the form of a periodic written schedule of activitiesdelivered from time to time. No advance notice shall be required fornon-disruptive activities such as periodic monitoring of wells on theProperties, if any.  Seller shall providePurchaser copies of analytical or other data collected concerning theenvironmental condition of the Properties obtained by Seller within areasonable time after any environmental assessment, investigation, testing,Remediation Activities, and/or Engineering and Institutional Controlsundertaken by Seller.

 

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7.8              Engineering and InstitutionalControls. Purchaser and Seller acknowledge that the Properties are and willbe subject to Engineering and Institutional Controls imposed in connection withprevious, ongoing and future Remediation Activities at the Propertiesincluding, without limitation, as specifically set forth in the Deed(s).Purchaser further acknowledges and agrees that in conducting RemediationActivities, Purchaser shall, at its sole cost and expense, adopt and use allengineering and related technical assistance available and standard to theindustry and any required by the Governmental Authorities or Seller pursuant tothis Agreement or Exhibits thereto to protect the health and safety of persons.Purchaser agrees to obtain all necessary approvals for any Engineering andInstitutional Controls required to achieve NFA Status at the Properties.Purchaser may need to consider the use of engineering controls to prevent themigration of vapors and/or liquids containing Contamination into any buildings,underground utilities or storm water retention/detention ponds, includingwithout limitation, vapor extraction systems, vapor barriers, sealed sumps andstorm pond liners. Purchaser hereby agrees to maintain, preserve, and complywith all Engineering and Institutional Controls that are or may be in thefuture imposed on the Properties in connection with the Remediation Activitiesor corrective action activities conducted prior to the Closing Date. TheEngineering and Institutional Controls shall run with the land for the benefit ofthe Seller-Related Parties and shall bind the Purchaser, subsequent owners,users and occupiers of the Properties, including any successors, lessees,assignees and licensees, and shall continue until released by the applicableGovernmental Authority.

 

7.9              Subsequent Transfers. Theprovisions of Sections 7.7, 7.8, 7.9.1 and 15.4 will run with the land and beincluded in the Deed from Seller to Purchaser or, in the case of Engineeringand Institutional Controls, such other recordable instrument as provided byapplicable Environmental Law and/or Governmental Authority. Purchaser agreesthat it will not complete any sale, transfer or assignment of any of itsinterests in the Properties or any part thereof, or enter into any lease,license or right to occupy or use the Properties or any part thereof withoutfirst obtaining from Purchaser, subsequent owners, users, and occupiers of theProperties, including all successors, lessees, assignees, and licensees,obligations identical to Purchaser’s obligation pursuant to Sections 7.7, 7.8,7.9.1 and 15.4. Purchaser shall include provisions in all such documents,giving Seller, and Seller’s successors and assignees, the right, but not theobligation, to enforce such obligations against Purchaser, subsequent owners,users, and occupiers of the Properties, including any successors, lessees,assignees, and licensees. Seller also may enforce any such obligations by alllawful means including specific performance, injunctive relief, any other legalor equitable remedy allowed by law against Purchaser, notwithstanding thesubsequent transfer, lease, or mortgage of the Properties or part thereof, and,in any event, Purchaser shall remain liable to Seller for any breach of this Section 7.9.Any transferee, assignee or successor owner, lessee, licensee, occupier or userof the Properties shall only take title to the Properties subject to the termsof Sections 7.7, 7.8, 7.9.1 and 15.4. The rights and benefits of Sections 7.7,7.8, 7.9.1 and 15.4 will inure not only to Seller, but also to the benefit ofthe Seller-Related Parties.  NeitherPurchaser, nor any party acquiring any right, interest or title through orafter Purchaser will be permitted to vacate, waive, eliminate, or in any waymodify the rights and benefits that the Seller-Related Parties have pursuant toSections 7.7, 7.8, 7.9.1 and 15.4. Any subsequent transfer of any Property willnot alter Purchaser’s responsibilities and obligations to Seller under thisAgreement.

 

7.9.1           DeedRestrictions. The Parties agree that, at Closing, each Property will besubject to deed restrictions as described in Exhibit J. The deedrestrictions must be filed in a format also provided in Exhibit Jas required by State standards.

 

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7.10            Purchaser’s Indemnity forEnvironmental Obligations. Purchaser shall defend, indemnify and holdharmless the Seller Indemnified Parties for, from and against, withoutlimitation, all Claims, liability, losses, expenses and costs incurred bySeller in connection with, resulting from, related to, arising out of, orattributable in any way to any Claim based on, arising out of or related to: (1) EnvironmentalLiabilities; (2) Purchaser’s breach or Default of its obligations,liabilities or covenants under Article VII and/or the related Exhibits; (3) Purchaser’sperformance of Remediation Activities, Engineering and Institutional Controls,or due diligence activities, including any and all third-party Claims relatingto, arising out of, or incurred in connection with Purchaser’s RemediationConsultants, Purchaser’s Remediation Contractors, or other Persons in theperformance of Remediation Activities, Engineering and Institutional Controlsor Purchaser’s due diligence activities; (4) the presence of Contaminationat, on, under, or originating or migrating from the Properties; (5) theactions or inactions of Purchaser; (6) the actions or inactions of allparties acquiring title or an interest in the Properties through Purchaser orafter Purchaser no longer owns or operates the Properties; (7) Seller’s or Purchaser’s non-compliance withEnvironmental Laws relating to the Properties; (8) all claims by Governmental Authorities includingwithout limitation resulting from the failure of the Purchaser to enter intosuch documentation as may be required by the Governmental Authority regardingthe transfer of the  Properties fromSeller to Purchaser, the transfer of Personal Property and Equipment and/or thetransfer of Remediation Activities, or the failure of the GovernmentalAuthority to approve or transfer such documentation; (9) changes in,modifications to, or amendments of the Environmental Laws, irrespective ofwhether the events giving rise to such Claims or liabilities occurred prior to,on, or after the Closing Date; (10) the condition of the Properties, theimprovements, and the Personal Property and Equipment on the  Properties; (11) Purchaser’s failure toprovide post-Closing access to the Properties as required by Section 7.7;and (12) Purchaser’s failure to comply with Section 7.9 regardingsubsequent transfers.

 

**ARTICLE VIII****REPRESENTATIONS AND WARRANTIES**

 

8.1              Seller’s Representations andWarranties.  Seller makes norepresentation or warranty whatsoever, except as otherwise may be expresslyprovided in this Agreement.  Withoutlimiting the foregoing, Seller makes no express or implied representation orwarranty that the Properties, or Seller’s use thereof, comply or have compliedwith any federal, state or local law, rule, regulation, or ordinance including,but not limited to, the Americans with Disabilities Act, the EnvironmentalLaws, as well as any zoning, use, occupancy or other regulatory matter.  Seller makes no representation or warrantyregarding the accuracy or completeness of any information Purchaser may receivefrom Seller.

 

8.1.1           EMOC represents and warrants toPurchaser as of the Effective Date and as of the Closing Date:

 

(a)           EMOC is a corporationduly organized, validly existing, and in good standing under the laws of thestate of its incorporation and is duly qualified to do business as a foreigncorporation in the Commonwealth of Massachusetts, and the States of NewHampshire and Rhode Island.  EMOC hasfull power and authority to enter into this Agreement and to perform itsrequisite obligations.

 

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(b)           EMOC has obtained allrequisite corporate and other authorizations required for the execution,delivery, and performance of this Agreement.

 

(c)           This Agreementconstitutes EMOC’s legal, valid, and binding obligation and is enforceable inaccordance with its terms, except to the extent that enforceability may belimited by federal or other bankruptcy, insolvency, reorganization, moratorium,or similar laws relating to or affecting the enforcement of creditors’ rightsgenerally, now or hereinafter in effect.

 

(d)           To the reasonableknowledge of EMOC, EMOC is not in default under any lease agreement withrespect to any EMOC Lease Property.

 

8.1.2           EMC represents and warrants to Purchaseras of the Effective Date and as of the Closing Date:

 

(a)           EMC is a corporationduly organized, validly existing, and in good standing under the laws of thestate of its incorporation and is duly qualified to do business as a foreigncorporation in the Commonwealth of Massachusetts, and the States of NewHampshire and Rhode Island.  EMC has fullpower and authority to enter into this Agreement and to perform its requisiteobligations.

 

(b)           EMC has obtained allrequisite corporate and other authorizations required for the execution,delivery, and performance of this Agreement.

 

(c)           This Agreementconstitutes EMC’s legal, valid, and binding obligation and is enforceable inaccordance with its terms, except to the extent that enforceability may belimited by federal or other bankruptcy, insolvency, reorganization, moratorium,or similar laws relating to or affecting the enforcement of creditors’ rightsgenerally, now or hereinafter in effect.

 

(d)           To the reasonableknowledge of EMC, EMC is not in default under any lease agreement with respectto any EMC Lease Property.

 

8.2              Purchaser’s Representations andWarranties. ** **Purchaser represents and warrantsto, and covenants and agrees with, Seller that as of the date of the executionof this Agreement by Purchaser and as of the Closing Date:

 

(a)           Purchaser is a limitedliability company duly organized, validly existing, and in good standing underthe laws of the state of its organization and is authorized to do business inthe Commonwealth of Massachusetts, and the States of New Hampshire and RhodeIsland.  Purchaser has full power andauthority to enter into this Agreement and to perform its obligationshereunder.

 

(b)           Neither its executionof this Agreement nor its performance or satisfaction of any agreement orcondition contained in this Agreement and to be performed or satisfied byPurchaser has or will: (a) violate any provision of Purchaser’scertificate of formation or limited liability company agreement; (b) violateany provision of, or give any Person the right to declare a default or exerciseany remedy under any agreement, instrument or understanding to which it or itsAffiliates is bound; or (c) contravene, conflict with or result in theviolation of any of the terms of any order, writ, injunction, decree, statute, rule orregulation applicable to Purchaser.

 

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(c)           Purchaser has obtainedall required authorizations for the execution, delivery, and performance ofthis Agreement.

 

(d)           No consent or approvalof any governmental or regulatory authority is required, except as expresslynoted herein, for the due authorization, execution, or delivery by Purchaser ofthis Agreement.

 

(e)           Purchaser does nothave any outstanding tax or other financial obligations to the state of itsorganization or to the Commonwealth of Massachusetts, or the States of NewHampshire or Rhode Island other than those taxes or other financial obligationsfor the current tax year.

 

(f)            Purchaser hasreceived from Seller various documentation related to the Purchased Assets,including information regarding the underground storage tank systems and theenvironmental conditions at the Properties, and Purchaser acknowledges that: (i) ithad an opportunity to independently verify the documentation provided by Sellerand the Properties’ environmental condition; and (ii) all documentationprovided by Seller to Purchaser was provided for Purchaser’s convenience onlyand was not to be relied upon by Purchaser in substitution for Purchaser’s owndue diligence.

 

**ARTICLE IX****LIABILITIES**

 

9.1              No Express or Implied Warranty.  WITHOUT LIMITING PURCHASER’S OTHEROBLIGATIONS OR ACKNOWLEDGMENTS, AND EXCEPT AS EXPRESSLY PROVIDED IN THISAGREEMENT, ALL OF THE PURCHASED ASSETS CONVEYED PURSUANT TO THIS AGREEMENT ARESOLD BY SELLER AND ACCEPTED BY PURCHASER IN THEIR “AS-IS, WHERE-IS” CONDITIONAS OF THE EFFECTIVE DATE.  SELLERDISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FORA PARTICULAR PURPOSE CONCERNING ANY PURCHASED ASSET CONVEYED UNDER THISAGREEMENT.  PURCHASER ACKNOWLEDGES ITSRESPONSIBILITY TO INSPECT ALL PROPERTY (REAL AND PERSONAL), INVENTORY ANDEQUIPMENT AND TANKS FOR PATENT OR LATENT DEFECTS THAT MAY EXIST AT THETIME OF CLOSING IN ENTERING INTO THIS AGREEMENT, PURCHASER HAS NOT BEEN INDUCEDBY, AND HAS NOT RELIED UPON, ANY REPRESENTATIONS, WARRANTIES OR STATEMENTS,WHETHER EXPRESS OR IMPLIED, MADE BY THE SELLER OR ANY AGENT, EMPLOYEE OR OTHERREPRESENTATIVE OF THE SELLER THAT ARE NOT EXPRESSLY SET FORTH HEREIN.  INSTEAD, PURCHASER’S DECISION TO PURCHASE THEPROPERTIES AND OTHER PURCHASED ASSETS IS BASED SOLELY UPON PURCHASER’S OWNEXAMINATION, INSPECTION AND ANALYSIS OF THE PURCHASED ASSETS.

 

9.2              Purchaser’s Assumption ofAssumed Liabilities.

 

9.2.1           AssumedLiabilities.  At Closing, Purchaseracknowledges that it shall assume all of the Assumed Liabilities, including,without limitation, all obligations and liabilities associated with, relatedto, incurred in connection with, or otherwise affecting, the ownership andoperation of the Purchased Assets, and Purchaser’s environmental undertakingsset forth in Article VII.  Thisassumption

 

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shall include, but is not limited to, franchisor’s and/or lessee’smaintenance and repair obligations under any assigned franchise or leaseagreement, whether outstanding as of Closing or arising thereafter.

 

9.2.2           TankRelated Obligations and Liabilities. Purchaser acknowledges that certain Tanks contain or have containedexplosive gases and have been used for the storage of petroleum products andare unfit for the storage of water or any other article or commodity intendedfor human or animal contact or consumption. Purchaser expressly agrees not to use or permit the use of any Tank forsuch storage.

 

**ARTICLE X****INDEMNITIES**

 

10.1            Purchaser IndemnificationObligations.

 

10.1.1         Purchaser’sIndemnification.  Purchaser shalldefend, indemnify and hold harmless Seller, its Affiliates, their respectivesuccessors, assigns, directors, officers, employees, subsidiaries, affiliatesand agents (the “Seller Indemnified Parties”) for, from and against,without limitation, all Claims, liability, losses, expenses and costs incurredby Seller in connection with, resulting from, related to, arising out of, orattributable in any way to any of the following:

 

(a)           Assumed Liabilities.  Any Assumed Liability, including withoutlimitation, all liabilities related to or arising from the ownership,possession, operation, use or maintenance of the Purchased Assets arisingbefore or after Closing;

 

(b)           Brokers’ Fees.  Brokers’, finders’ and/or agents’ fees andcommissions, in connection with the contemplated transaction, asserted by anyperson on the basis of any statement, instrument, action, inaction or agreementalleged to have been made by the Purchaser;

 

(c)           Entry.  Purchaser’s entry onto or activities on theProperties pursuant to the terms of this Agreement;

 

(d)           Misrepresentation.  Any representation or warranty, made byPurchaser in this Agreement or in any of the documents it made available toSeller or delivered before or at Closing, that is misleading or untrue in anymaterial respect;

 

(e)           Breach.  Purchaser’s failure to discharge or performany obligation, covenant or agreement made in this Agreement.  A breach will include, but will not belimited to, any claim related to Purchaser’s non compliance with its PMPAobligations defined in Section 4.4, including:  (a) the terms and conditions of thefranchise agreements offered by Purchaser or any action taken by Purchaser,specifically including any termination or non renewal action, under or pursuantto the franchise agreements; (b) Purchaser’s offer or failure to offer franchiseagreements as required by Section 4.4; (c) Purchaser’s failure tofulfill its obligations under the PMPA or any state franchising law; or (d) Purchaser’sfailure to fulfill any obligations contained in the PMPA Franchise Agreementsassigned to Purchaser by Seller;

 

(f)            IntellectualProperty.  Purchaser’s allegedinfringement of any intellectual property right; or

 

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(g)           EnvironmentalObligations.  Any environmentalobligations, as more fully set forth in Article VII.

 

10.1.2         Notice.  In the event a claim against any SellerIndemnified Party arises that may be covered by the indemnity provisions of Section 10.1.1of this Agreement, notice will be given by such Seller Indemnified Party toPurchaser.  The failure to give notice asrequired by this Section 10.1.2, however, will not result in a waiver orany diminishment of any right to indemnification provided by this Agreement.

 

10.1.3         Purchaser’sAcknowledgment of Duty to Indemnify. If Purchaser agrees in writing to the Seller Indemnified Party that aclaim is covered by the indemnity provisions of Section 10.1.1, andPurchaser agrees in that writing to indemnify the Seller Indemnified Party inthe event of any liability, losses, expenses, settlement and/or costs incurredby any Seller Indemnified Party, Purchaser will have the right to contest anddefend by all appropriate legal proceedings such claim and to select leadcounsel to defend any and all such claims; provided that prior to any assumptionof defense by Purchaser, Purchaser shall have received the written consent ofSeller to such assumption, which consent may be withheld in the sole discretionof Seller.  In order to consummate anysettlement, however, Purchaser must first obtain the written consent of Seller,which consent may be withheld in the sole discretion of Seller.  The Seller Indemnified Party may selectcounsel, at its sole cost and expense, to participate in any defense assumed byPurchaser.

 

10.1.4         Purchaser’sFailure to Indemnify.  In the eventthat Purchaser fails or refuses to assume the defense or indemnify any SellerIndemnified Party within thirty (30) days of the notice described in Section 10.1.2,then the Seller Indemnified Party will have the right to select and retain itsown counsel who will serve in Seller’s discretion until the matterconcludes.  All costs and expensesincurred as a result of said legal counsel’s work shall be paid by Purchaser ina timely manner.  In exercising its rightto select counsel pursuant to this Section 10.1.4, Seller (or any SellerIndemnified Party) does not waive its right to compel Purchaser to undertakeits indemnity obligations through other legal proceedings or otherwise.

 

10.2            Seller IndemnificationObligations.

 

10.2.1         EMOCIndemnification Obligations.

 

EMOC will indemnify and hold harmlessPurchaser and its Affiliates and their respective successors, assigns,directors, officers, employees, subsidiaries, affiliates and agents (the “PurchaserIndemnified Parties”), from and against each and every Claim, directlyresulting from or arising out of any of the following:

 

(a)           ExcludedLiabilities.  To the extent arisingfrom any Excluded Liability with respect to an EMOC Property;

 

(b)           Brokers’ Fees.  Brokers’, finders’ and agents’ fees andcommissions, in connection with the contemplated transaction, asserted by anyperson on the basis of any statement, instrument, action, inaction or agreementalleged to have been made by EMOC; or

 

(c)           Breach.  EMOC’s failure to discharge or perform any obligation,covenant or agreement made by EMOC in this Agreement.

 

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(d)           Exceptions.  For the avoidance of doubt, EMOC specificallydisclaims any indemnification obligations for any Claim resulting from the useof the Properties in violation of this Agreement and/or in violation of theDeed, the Deed restrictions referenced in Section 7.9.1, and/or theEngineering and Institutional Controls referenced in Section 7.8 byPurchaser-Related Parties, subsequent owners, users, and occupiers.  EMOC’s obligations to indemnify also will notbe applicable to any Claim (i) arising out of any third-party contractualobligations that Purchaser, or any person or entity acquiring any interest ortitle through Purchaser, including Purchaser’s lender, may create and/orassume; or (ii) brought by or on behalf of Alliance Energy LLC or AEHoldings Corp.

 

10.2.2         EMC’sIndemnification Obligations.

 

EMC will indemnify and hold harmless thePurchaser Indemnified Parties, from and against each and every Claim, directlyresulting from or arising out of any of the following:

 

(a)           ExcludedLiabilities.  To the extent arisingfrom any Excluded Liability with respect to an EMC Property;

 

(b)           Brokers’ Fees.  Brokers’, finders’ and agents’ fees andcommissions, in connection with the contemplated transaction, asserted by anyperson on the basis of any statement, instrument, action, inaction or agreementalleged to have been made by EMC; or

 

(c)           Breach.  EMC’s failure to discharge or perform anyobligation, covenant or agreement made by EMC in this Agreement.

 

(d)           Exceptions.  For the avoidance of doubt, EMC specificallydisclaims any indemnification obligations for any Claim resulting from the useof the Properties in violation of this Agreement and/or in violation of theDeed, the Deed restrictions referenced in Section 7.9.1, and/or theEngineering and Institutional Controls referenced in Section 7.8 byPurchaser-Related Parties, subsequent owners, users, and occupiers.  EMC’s obligations to indemnify also will notbe applicable to any Claim (i) arising out of any third-party contractualobligations that Purchaser, or any person or entity acquiring any interest ortitle through Purchaser, including Purchaser’s lender, may create and/orassume; or (ii) brought by or on behalf of Alliance Energy LLC or AEHoldings Corp.

 

10.2.3         Amountof Liability.  The amounts for whichany Seller shall be liable under Sections 10.2.1 and 10.2.2 of this Agreementshall be net of any insurance proceeds received by any Purchaser IndemnifiedParty in connection with the facts giving rise to the right of indemnification.

 

10.2.4         Notice.  In the event a claim against any PurchaserIndemnified Party arises that is covered by the indemnity provisions ofSections 10.2.1 and 10.2.2 of this Agreement, notice shall be promptly given bysuch Purchaser Indemnified Party to Seller. Seller will have the right to contest and defend by all appropriatelegal proceedings such claim and to control all settlements and to select leadcounsel to defend any and all such claims at the sole cost and expense ofSeller.  The Purchaser Indemnified Partymay select counsel to participate in any defense assumed by Seller pursuant tothis Section 10.2.4, in which event such counsel will be at the sole costand expense of such Purchaser Indemnified Party.

 

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This Section 10.2 shall be thesole and exclusive remedy of the Purchaser Indemnified Parties against Sellerand its Affiliates after Closing for any Claim or loss arising in connectionwith or relating, directly or indirectly, to the Purchased Assets, thisAgreement or the contemplated transactions.

 

10.2.5         Indemnities not Assignable orTransferable.  The foregoing indemnities fromEMOC and EMC shall not be assignable or otherwise transferable by Purchaser.

 

10.3            Cooperation Between Purchaser andSeller.  The Parties and theirsuccessors will cooperate and cause their respective Affiliates andsubsidiaries, any permitted assignees, and the respective employees, agents andcontractors to cooperate in connection with these indemnity obligations,including, without limitation: (a) providing reasonable access toPurchaser’s or Seller’s employees, consultants, agents, attorneys, accountantsand files to the extent necessary or appropriate to defend the matter; (b) participatingin any legal proceeding as a witness; (c) providing access to theProperties as may be required by Purchaser or Seller; and (d) providingreasonable assistance with permit transfers, if any.  A joint defense privilege will be maintainedfor post-Closing indemnification or defense communications for any matter inwhich either Party has an indemnification or defense obligation under thisAgreement.  Any Party seekingindemnification under this Article X will comply with the noticeprovisions of Sections 10.1.2 and 10.2.4.

 

10.4            Enforceability.  In the event the indemnities set forth inthis Agreement are found to be unenforceable, the Parties agree to negotiate,in good faith, a substitute indemnity provision that embodies the intent of theoriginal indemnity without the objectionable provisions that made itunenforceable.

 

10.5            Dispute Resolution.  The Parties agree that all controversies,Claims or disputes between them arising out of this Agreement, including, butnot limited to, all contractual, tortious, common law, statutory, legal orequitable Claims or any other Claims or disputes concerning the terms, themeaning of the terms’ implementation, and/or the provisions of this Agreement(collectively, “Disputes”) shall be resolved in accordance with thefollowing provisions:

 

(a)           After reasonablenotice of such Dispute, the Parties shall, in good faith, use commerciallyreasonable efforts to resolve the Dispute by meeting and conferring;

 

(b)           In the event that theParties are unable to resolve any Dispute by negotiation, pursuant to paragraph(a) above, within twenty (20) Business Days after receipt of the writtennotice of Dispute, the Parties shall engage in a binding arbitration.  Any fees and costs incurred by or payable tothe arbitrators shall be paid by the non-prevailing Party, as determined byarbitration.  The Parties shall makecommercially reasonable efforts and take all necessary steps to successfullyresolve their Dispute by arbitration within ninety (90) Business Days from thesubmission of the Dispute to the arbitrator.

 

(c)           Arbitration shall beby a three (3) person panel using the American Arbitration Association’s rules forcommercial disputes.  Each Party shallselect one (1) arbitrator and the two (2) shall jointly select thethird.  In the event that an arbitrationpanel will be asked to rule on any environmental issue, each arbitrator onsuch panel shall have at least ten (10) years of recent experience inenvironmental remediation.

 

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**ARTICLE XI****CONFIDENTIALITY**

 

11.1            Confidential Treatment of Seller’sConfidential Information.  Purchaseracknowledges and agrees that the proposed conveyance of the Purchased Assets, theterms and provisions of this Agreement and any and all related details shall beconsidered “Confidential Information” (as defined in the ConfidentialityAgreement) and shall be treated as such. To the extent that Purchaser’s Affiliate, but not Purchaser, has enteredinto the Confidentiality Agreement, Purchaser agrees to be bound by all of theobligations of its Affiliate under the Confidentiality Agreement as ifPurchaser was an original party to that agreement.  Confidential Information shall include, butis not limited to, all environmental assessments and test results of the Tanksperformed on behalf of Seller.  Purchasershall not disclose or permit others (such as its Affiliates, employees, agents,representatives or contractors) to disclose, to any third party, anycorrelation that may exist between Seller’s Confidential Information and otherinformation obtained from another source.

 

**ARTICLE XII****CONDITIONS PRECEDENT**

 

12.1            Conditions Precedent to theObligations of Seller.  Each andevery obligation of Seller to be performed on the Closing Date will be subjectto the satisfaction, or waiver by Seller, prior to or at the Closing of thefollowing express conditions precedent:

 

(a)           Representations andWarranties.  The representations andwarranties made by Purchaser in this Agreement shall be true and correct in allmaterial respects as of the Closing Date with the same force and effect asthough such representations and warranties had been made on the Closing Date(except as to any representation or warranty that specifically relates to anearlier date, which representation or warranty shall be true and correct as ofsuch earlier date);

 

(b)           Performance.  Purchaser shall have performed and compliedin all material respects with all of its obligations under this Agreement thatare to be performed or complied with by it prior to or at Closing;

 

(c)           Guaranty.  Guarantor shall have duly executed anddelivered the Guaranty to guarantee the obligations of Purchaser, and anysuccessor or assignee of Purchaser, under this Agreement and under any otherdocument delivered to Seller at or before Closing.  Before the end of the Inspection Period,Purchaser shall provide Seller with a fully executed Guaranty in the form andsubstance as is attached to this Agreement as Exhibit I.  The Guaranty shall survive Closing andcontinue until each and every obligation of Purchaser under this Agreement issatisfied or otherwise terminated in accordance with its terms;

 

(d)           Release.  Purchaser shall have duly executed and deliveredthe environmental release attached to this Agreement as Exhibit Q;

 

(e)           Brand Fee Agreement.  Purchaser and EMOC shall have executed inaccordance with this Agreement the Brand Fee Agreement for use in the sale anddistribution of certain Branded Fuels at the service station properties;

 

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(f)            Assignment andAssumption of Lease Agreements. Purchaser shall have executed the Assignment of Leases; and

 

(g)           Compliance withRegulatory Approvals.  Purchaser shallhave obtained and complied with, as applicable, any and all requiredgovernmental and regulatory approvals and consents, including, but not limitedto, the Hart-Scott Rodino Act pursuant to Section 2.6.

 

12.2            Conditions Precedent to theObligations of Purchaser.  Each andevery obligation of Purchaser to be performed on the Closing Date will besubject to the satisfaction, or waiver by Purchaser, prior to or at the Closingof the following express conditions precedent:

 

(a)           Representations andWarranties.  The representations andwarranties made by Seller in this Agreement shall be true and correct in allmaterial respects as of the Closing Date with the same force and effect asthough such representations and warranties had been made on the Closing Date(except to any representation or warranty that specifically relates to anearlier date, which representation or warranty shall be true and correct as ofsuch earlier date);

 

(b)           Performance.  Seller shall have performed and complied inall material respects with all of its obligations under this Agreement that areto be performed or complied with by it prior to or at Closing;

 

(c)           Assignment andAssumption of Lease Agreements. Seller shall have executed the Assignment of Leases;

 

(d)           Compliance withRegulatory Approvals.  Seller shallhave complied with any and all required governmental and regulatory approvalsand consents, including, but not limited to, the Hart-Scott-Rodino Act pursuantto Section 2.6;

 

(e)           Brand Fee Agreement.  EMOC shall have executed in accordance withthis Agreement the Brand Fee Agreement, for use in the sale and distribution ofcertain Branded Fuels at the service station properties.

 

12.3            Waiver of Conditions.  Either Party shall have the right, but notthe obligation, at any time, by notice in writing to the other Party, to waive,in whole or in part, satisfaction of all or any of the Conditions Precedent tothe extent not legally required to be satisfied.

 

12.4            Termination.  If the Conditions Precedent have not beensatisfied or waived in accordance with this Article XII on or before theFinal Closing Date, this Agreement may be terminated (a) by Seller inaccordance with Section 13.1.2, or (b) by Purchaser in accordancewith Section 13.1.3.

 

**ARTICLE XIII****EARLY TERMINATION; REMEDIES**

 

13.1            Early Termination.  This Agreement may be terminated and thecontemplated transactions abandoned prior to Closing under the followingcircumstances:

 

13.1.1         MutualAgreement.  Upon the mutual agreementof the Parties, which termination will be effective on the date agreed to bythe Parties.

 

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13.1.2         Seller’sTermination Notice.  Upon the datespecified in the termination notice from Seller to Purchaser pursuant to anyapplicable termination provision provided herein, or under the followingcircumstances:

 

(a)           in the event of aDefault by Purchaser of (i) any material obligation, covenant, orundertaking under this Agreement, including, without limitation, the payment ofany Deposit, the payment of the balance of the Purchase Price, or the Closingof the transactions contemplated herein, or (ii) any other obligation,covenant, or undertaking under this Agreement, provided, in the case of thisclause (ii) that Seller has provided notice of such Default to Purchaserand Purchaser has failed to remedy its Default within a reasonable time periodafter receipt of such notice;

 

(b)           if a change in law orcircumstances (including the existence of any third-party initiated litigation)after the Effective Date exists that is of such a nature as to frustrate thepurpose of this Agreement or the Seller’s objectives hereunder;

 

(c)           if any law,injunction, judgment or ruling enacted, promulgated, issued, entered, amendedor enforced by any Governmental Authority enjoining, preventing or prohibitingconsummation of the contemplated transaction or making the consummation of thecontemplated transaction illegal is in effect (other than any such law,injunction, judgment or ruling enacted pursuant to the Hart-Scott-Rodino Act);or

 

(d)           if any of theConditions Precedent contained in Section 12.1 are not satisfied or waivedin accordance with Article XII as of the Final Closing Date; provided,however, that Seller shall not have the right to terminate this Agreementpursuant to this Section 13.1.2(d) based on Purchaser’s failure tocomply with the Hart-Scott-Rodino Act in Section 12.1(g) during theHSR Second Request Period, if applicable.

 

13.1.3         Purchaser’sTermination Notice.  Upon the datespecified in a notice of termination from Purchaser to Seller pursuant to anyapplicable termination provision provided herein, or under the followingcircumstances:

 

(a)           if Purchaser providesSeller with such notice of termination prior to the end of the InspectionPeriod; or

 

(b)           if any of theConditions Precedent contained in Section 12.2 are not satisfied or waivedin accordance with Article XII as of the Final Closing Date; provided,however, that Purchaser shall not have the right to terminate this Agreementpursuant to this Section 13.1.3(b) based on Seller’s failure tocomply with the Hart-Scott-Rodino Act in Section 12.2(d) during theHSR Second Request Period, if applicable.

 

13.2            Seller’s Remedies.  All remedies provided to Seller under this Section 13.2will be cumulative and not exclusive.

 

13.2.1         Before Closing. Inthe event of a Default by Purchaser before Closing, Seller will be entitled (a) toterminate this Agreement in accordance with Section 13.1; and (b) tothe release of the Deposit pursuant to Section 3.3.4.  The remedies set forth in this Section 13.2.1shall constitute Seller’s sole and exclusive remedy for Purchaser’s Defaultbefore Closing, at law or in equity.

 

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13.2.2         PostClosing.  In the event of a Default byPurchaser under this Agreement after Closing, Seller may enforce every remedy,whether public or private, available at law or in equity, in addition to all ofits rights and remedies under this Agreement. Available remedies include, but are not limited to, injunctive reliefand/or specific performance, against Purchaser, or any other person or entityhaving the right to use or occupy any of the Properties.

 

13.2.3         Recoupment;Set-off.  If Purchaser fails totimely pay any amount due to Seller under this Agreement, then, to the extentpermitted by the Brand Fee Agreement, or any other agreement between Seller andPurchaser or its Affiliate, Seller may elect to recoup or set-off the amountsfrom any credit or payment Seller owes Purchaser or its Affiliate under theBrand Fee Agreement or any other agreement between Purchaser and Seller.  Seller’s election to recoup or set-off is inaddition to any other rights Seller may have at law or in equity.  Seller further will have the right to draftany accounts receivable, letters of credit, or other accounts Purchaser or itsAffiliates may have established for the benefit of Seller’s election under thisSection 13.2.3.

 

13.3            Purchaser’s Remedies.

 

13.3.1         BeforeClosing.  In the event that thisAgreement is terminated by Purchaser pursuant to Section 13.1.3(b) Sellerwill pay Purchaser’s actual out-of-pocket third party due diligence costsincurred to investigate the Properties as of the termination date, providedPurchaser gives Seller written evidence of the actual costs.  The recoupment of Purchaser’s due diligencecosts shall be limited to an aggregate amount not greater than Five ThousandU.S. Dollars ($5,000.00 USD) multiplied by the number of Properties included inthe contemplated transaction, but in no event will such amount exceed TwoHundred and Fifty Thousand U.S. Dollars ($250,000.00 USD).  If Purchaser Defaults under this Agreement,Seller will have no obligation to reimburse Purchaser for actual out-of-pocketdue diligence expenses.

 

Upon such termination, and followingreimbursement of Purchaser’s due diligence costs, if applicable, Seller willhave no further obligation or liability to Purchaser under this Agreement.  In no event will Purchaser have the right ofspecific performance to compel conveyance of any of the Properties.

 

13.3.2         PostClosing.  Subject to Sections 10.2and 13.4, in the event of a Default by Seller under this Agreement after theClosing (which Default is not cured by Seller within thirty (30) days afterreceipt of Purchaser’s written notice), Purchaser shall have the right toenforce its remedies under Section 10.2 of this Agreement.

 

13.4            Consequential Damages.  Notwithstanding anything to the contrary inthis Agreement, Seller will have no liability to anyone for business disruption,lost profits, incidental, punitive, or consequential damages arising from orrelated to this Agreement or the contemplated transaction.  This limitation will be imposed on, but isnot limited to, all Purchaser-Related Parties, or other parties directly orindirectly acquiring any Property-related interest, right, or title through anyPurchaser-Related Party.

 

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**ARTICLE XIV****PROPERTY LOSS**

 

14.1            Notice.  Seller will give Purchaser notice of: (a) anycasualty affecting any of the Properties between the Effective Date and theClosing Date; (b) any actual taking or condemnation of all or any portionof any of the Properties; or (c) any planned or pending condemnation forwhich Seller has received written notice from the condemning authority.

 

14.2            Casualty.  If any Property suffers damage or destructionbetween the Effective Date and the Closing Date, Seller will: (a) repairor make adequate provision for the repair of the subject Property beforeClosing; or (b) reimburse Purchaser at Closing by an agreed upon amount torepresent the reduction in the real estate value of the affected Propertycaused by the casualty.  If Seller electsto reimburse Purchaser for the damages, but Seller and Purchaser are unable toagree upon the reimbursement amount, the amount will be established by anindependent appraisal performed by an experienced and licensed insuranceadjuster located in the state where the affected Property is located.  Such insurance adjuster will be selected byPurchaser and Seller or, failing their agreement, by an adjuster selected byeach of the adjusters selected by Purchaser and Seller.

 

14.3            Condemnation.  Purchaser recognizes that condemnations maycommence and/or proceed at any time.  Alist of pending condemnation actions is attached as Exhibit S.  This list is not intended to be arepresentation or warranty as to the actions of the various authorities withcondemnation authority, and is not intended, nor does it constitute, anysubstitute for Purchaser’s due diligence.

 

If between the Effective Date and theClosing Date, transfer of title or possession of all or any part of any of theProperties by condemnation occurs, or if Seller receives written notice of aplanned or threatened condemnation of all or part of any of the Propertiesbefore the Closing Date, the Closing will take place without abatement of thePurchase Price.  At Closing, Seller willassign to Purchaser all of Seller’s interest in any award that may be payableto it on account of the condemnation.

 

**ARTICLE XV****TANK TRANSFER**

 

15.1            Tank System Testing.

 

15.1.1         TightnessTesting.  Seller, at Seller’sexpense, will cause Tightness Testing to be conducted by Seller’s tightnesstesting contractor.  A precisiontightness test will be used for operating Tanks that are used for fuel storageon operating Properties, and a pressure decay test will be used on all Stage IIvapor recovery lines.  Tightness Testingwill be conducted to detect the presence of leaks in any Tank and will becompleted in compliance with the requirements of the applicable GovernmentalAuthority and all applicable laws and regulations.  Purchaser acknowledges on its behalf, and onbehalf of Purchaser-Related Parties, that Seller’s tightness testing is not asubstitute for testing that Purchaser may wish to perform as part of its duediligence or be required to perform by Governmental Authorities after Closingand as part of its registration of the Tanks and prior to operation of theTanks by Purchaser.

 

15.1.2         FailingTanks or Lines.  If the tightnesstesting results do not meet the applicable Governmental Authority’s standards,then Seller may elect, in its sole discretion, to: (a) terminate thisAgreement with respect to the affected Property; or (b) repair the Tanks(or the entire 

 

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Tank field), as appropriate under Seller’s engineering standards, beforeClosing.  If Seller elects to terminatethis Agreement with respect to the affected Property, the Purchase Price willbe reduced by the amount attributable to such Property, as established by Exhibit A-4,which Exhibit will be amended to reflect the affected Property’swithdrawal from this Agreement’s contemplated transaction.  Seller will have the right to delay Closingfor each Property on which it will remove or repair Tanks.

 

15.1.3         Dispensers.  Seller advises Purchaser, and Purchaseracknowledges, that Seller will conduct no tests with respect to thedispensers.  After Closing, Purchaser isresponsible and assumes the obligation for the calibration of the dispensersand for compliance with all applicable laws, including, but not limited to, allEnvironmental Laws and applicable registration and testing requirements,including, but not limited to, calibration of weights and measures.

 

15.1.4         TankData.  Purchaser acknowledges that ithas received and is familiar with all documentation related to Tanks includingwithout limitation the tank deflection data and other Tank documents such asTank registrations or permits posted in the Virtual Data Room.

 

15.2            Purchaser’s Notices andObligations to Effectuate Transfer. Within thirty (30) days after the Closing Date or within such shortertime period, including prior to Closing, as may be required by law, including,without limitation, any Environmental Law, Purchaser shall take all requiredactions to effectuate transfer of the Tanks (including registrations, permits,operational compliance and liabilities) including, without limitation,notification of the appropriate state and/or local agencies that Seller’sinterest in the Tanks was conveyed to Purchaser and that Purchaser is the ownerof any Tanks included in this Agreement as of the Closing Date.  Seller will cooperate with Purchaser inproviding such notices if and to the extent Seller’s cooperation is required bythe appropriate state and/or local agencies.

 

15.3            No Warranty of Tests.  Purchaser acknowledges that Seller makes nowarranty as to the accuracy or completeness of the tightness testingresults.  Without limiting the “AS IS,WHERE IS” nature of the sale of the Properties, Seller makes no representationor warranty whatsoever, express or implied, of any kind or nature as to thestatus of the registration of the Personal Property, Equipment or Inventory,including, without limitation, any Tanks, fixtures, structures, and all otherequipment and dispensers, or the condition of, the merchantability of or thefitness for any particular purpose of any of the aforementioned.

 

15.4            Maintenance of Records.  After Closing, Purchaser shall maintain dailyinventory and Tank maintenance records for the Properties, as required tocomply with all applicable laws, rules and regulations.  Purchaser shall deliver legible copies ofsuch records to Seller within two (2) days of Seller’s request for suchrecords.  Seller will have the right toreview these records as Seller deems necessary. Following Closing, Purchaser agrees to continue to use, maintain, repairand keep in good order the existing remote monitoring system (e.g., aVeeder-Root system) or a comparable monitoring system for the Tanks located onthe Properties.

 

**ARTICLE XVI****RIGHT OF ENTRY AND INSPECTION; EQUIPMENT**

 

16.1            Entry and Inspection.  During the Inspection Period, Purchaser mayinspect the Properties at a time mutually agreed upon by the Parties, atPurchaser’s expense, to ensure that the

 

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Properties’Equipment necessary for the operation of the Properties consistent with Seller’spast practices is present and in working order. Purchaser may inspect the Properties personally or through agents,employees, contractors, or subcontractors and shall assume all risks involvedin entering the Properties pursuant to this Section 16.1.  Seller’s representatives may attend allinspections.

 

Purchaser and its agents, employees,contractors, or subcontractors shall not visit any of the Properties withoutSeller’s written consent, nor shall they engage in conversations with employeesworking at the Properties.

 

16.2            Purchaser’s EquipmentInstallation.  Purchaser may enterthe Properties to install point of sale equipment, telephone lines and otherequipment needed to effect an orderly post-Closing transition of theoperations.  Such entry and installationshall be: (a) at Purchaser’s sole risk and expense; (b) at areasonable time occurring after the end of the Inspection Period as selected byPurchaser; and may be (c) conducted by Purchaser personally or through itsagents, employees, contractors, or subcontractors.  Purchaser’s right to install equipment underthis Section 16.2 is subject to prior written notice to and consent bySeller, which consent will not be unreasonably withheld.  Purchaser shall make reasonable efforts notto disrupt existing operations on the Properties and shall keep the Propertiesfree from any liens or claims arising out of any work performed, materialsfurnished, or obligations incurred by or on behalf of Purchaser.  If any mechanic’s or other lien is recordedagainst the Properties, Purchaser shall pay the lien or post any bond necessaryto discharge the lien of record within thirty (30) days after receiving noticeof the lien’s recording.

 

16.2.1         Failure to Close after Installation ofEquipment.  If the contemplated transactionis not consummated for any reason, and Purchaser has installed equipment on theProperties in accordance with Section 16.2, Purchaser shall, at Seller’s option: (a) removethe equipment installed by Purchaser and restore the Properties to theiroriginal condition upon ten (10) days notice from Seller; or (b) transfertitle to any equipment installed by Purchaser to Seller, at no cost and withoutany express or implied warranty, after which Seller will be solely responsiblefor such equipment.  In removingequipment and restoring the Properties to their original condition, Purchasershall make reasonable efforts not to disrupt existing operations on the Propertiesand shall assume all risks involved in entering the Properties in connectiontherewith.

 

**ARTICLE XVII****EXCUSED DELAY**

 

17.1            Force Majeure.  No Party’s performance of its obligationsunder this Agreement will be deemed untimely if any late performance is due toacts of God, war, terrorism, civil disturbance, or government (including, butnot limited to, governmental or court orders), or strikes or other labordisputes (the settlement of which will be totally within the discretion of theaffected Party), or any other act or event beyond the reasonable control of theaffected Party; provided, however, that the affected Party must take allreasonable steps to perform and must promptly notify the other Party of theevent before such delay will be excused.  The time for performance of any undertakingwill not be extended and no failure to perform will be excused, for more thansixty (60) days pursuant to this Section 17.1 without the mutual consentof the Parties.  Neither will theforegoing be construed to excuse any delay in the performance of either Party’smonetary obligations, including, but not limited to, Purchaser’s payment of thePurchase Price.

 

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17.2            Market Withdrawal Before Closing.  Seller reserves its right to invoke the PMPAmarket withdrawal provisions at any time before Closing by providing writtennotice to Purchaser.  This Agreementshall terminate in accordance with the terms set forth in Seller’s notice, theDeposit will be released in accordance with Section 3.3.4, and Purchasershall return all Confidential Information to Seller upon termination of thisAgreement.  Thereafter, neither Partywill have any obligation to the other under this Agreement.

 

**ARTICLE XVIII****JOINT PUBLICITY**

 

18.1            Press Release and Release ofOther Information.  Publicity andother releases concerning the contemplated transaction shall be jointly plannedand coordinated between the Parties. Neither Party will act unilaterally in this regard without the otherParty’s prior approval; provided, however, that such approval will not beunreasonably withheld.  Subject to theConfidentiality Agreement referenced in Article XI, nothing contained inthis Agreement will prevent either Party from furnishing information to anygovernmental agency or from furnishing information to comply with applicablelaws or regulations.

 

18.2            Internal Communications andTermination.  Communications byeither Party to its employees, consultants or third parties involved in thetransaction, while subject to the Confidentiality Agreement referenced in Article XI,will not be deemed to require joint planning or coordination between theParties, nor will such communication be subject to the other Party’s review andconsent.  If this Agreement is terminated,either Party may communicate internally and to interested third parties (thathave been previously been made aware of this transaction) that the transactionhas been terminated without joint planning or the consent of the other Party.

 

**ARTICLE XIX****EMPLOYEES**

 

19.1            Employees.  Seller will provide Purchaser with a list ofEmployees within twenty (20) days following the Effective Date.  Seller will update the list and attach it,along with all benefit information, as Exhibit V within thirty (30)days of Closing.  At least twenty (20)days before the Final Closing Date, and contingent upon Closing, Purchasershall offer employment to the Employees or, in the event an Employee’semployment with Seller-Related Parties terminates prior to Closing, to theirreplacement.  Employment with Purchasershall become effective at the time of Closing. At Closing, Purchaser shall provide Seller with: (a) a list ofEmployees who were offered and have accepted positions with Purchaser; and (b) alist of Employees who were offered, but have not accepted positions, withPurchaser.  Purchaser shall comply withthe employment and benefit obligations as set forth in Exhibit V.  Purchaser agrees to refrain from solicitingor employing any of Seller-Related Parties’ employees other than thoseappearing on Exhibit V.

 

Notwithstanding the foregoing,Purchaser may designate a Seller approved third party management company tosatisfy Purchaser’s obligations with respect to Employees set forth in thisAgreement (including, without limitation, those obligations set forth in Exhibit Vand the schedules thereto); provided, that, no such designation shall relievePurchaser of its obligations with respect to Employees.

 

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19.2            Schedules.  Schedules V-1, V-2, V-3, V-4 and V-5 are setforth as attachments to Exhibit V and are incorporated herein byreference.

 

**ARTICLE XXINSURANCE**

 

20.1            Seller Insurance.  Seller and Purchaser acknowledge that ExxonMobil Corporation maintains a worldwide program of property and liabilityinsurance coverage for itself and its Affiliates, including Seller.  This program has been designed to achieve acoordinated risk-management package for the entire Exxon Mobil corporate group.

 

The program consists principally ofthree types of policies:

 

(a)           policies issued toExxon Mobil Corporation or its predecessors;

 

(b)           policies issueddirectly to affiliates by one of ExxonMobil’s wholly-owned insurance companies,i.e., Ancon Insurance Company, Inc., Bluefield International InsuranceInc., et. al. (herein referred to collectively as “ExxonMobil CaptiveInsurers”); and

 

(c)           policies issued toaffiliates by locally admitted insurers which are reinsured by one of theExxonMobil Captive Insurers.

 

All of the insurance policiesthrough which the worldwide program of coverage is presently or has previouslybeen provided by or to Exxon Mobil Corporation, its predecessors or Affiliatesare herein referred to collectively as the “ExxonMobil Policies.”

 

20.2            No Continuing Coverage.  It is understood and agreed by Purchaser thatfrom and after the Closing:

 

(a)           no insurance coverageshall be provided under the ExxonMobil Policies to Purchaser;

 

(b)           any and all policiesinsured or reinsured by any of the ExxonMobil Captive Insurers which, but forthis provision, would have insured any assets transferred pursuant to thisAgreement, shall be deemed terminated, commuted and cancelled ab initio; and

 

(c)           no Claims regardingany matter whatsoever, whether or not arising from events occurring prior toClosing, shall be made by Purchaser or its Affiliates and/or subsidiaries,against Seller and/or its Affiliates or any other member of the Exxon Mobilcorporate group, or any of their respective employees or former employeesand/or with respect to any of the ExxonMobil Policies regardless of their dateof issuance.

 

20.3            Insurance Indemnity.  In addition to any indemnificationobligations set forth herein, Purchaser shall indemnify and defend Seller, itsparents and Affiliates against, and shall hold them harmless for, from, andagainst any and all Claims made after Closing against any of the ExxonMobilPolicies, by Purchaser and its Affiliates and/or subsidiaries or any company orPerson claiming to be subrogated to Purchaser’s or its Affiliate’s and/orsubsidiaries’ rights, including all costs and expenses (including attorneys’fees), related thereto.  Such indemnityshall cover, without limitation, any claim by 

 

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an insurer forreinsurance, retrospective premium payments or prospective premium increasesattributable to any such claim.

 

Notwithstanding any provision ofthis Agreement to the contrary, Purchaser’s insurance policy(ies) shall: (a) coverSeller and its Affiliates as additional insureds for liabilities arising fromor assumed under this Agreement, including, without limitation, EnvironmentalLiabilities; and (b) be primary as to all other policies (including anydeductibles or self-insured retentions). It is further agreed that Purchaser and its insurer(s) providingcoverage shall waive all rights of subrogation and/or contribution againstSeller and its Affiliates to the extent liabilities are assumed by Purchaser.

 

**ARTICLE XXI****MISCELLANEOUS**

 

21.1            Entire Agreement.  This Agreement and the documents referred toherein (including the Confidentiality Agreement) constitute the entireagreement between the Parties pertaining to the subject matter hereof, andsupersede all prior and contemporaneous agreements, understandings,negotiations, and discussions of the Parties in connection herewith, except asspecifically set forth herein.  Noamendment, supplement, modification, waiver or termination of this Agreementshall be binding unless executed in writing by both Parties.  If the terms and conditions of this Agreementconflict with the terms and conditions of the Brand Fee Agreement with respectto the contemplated transactions, the terms and conditions of this Agreementshall govern.

 

21.2            Notices.  Any notice, demand, request, consent, approval,or other communication that a Party is required or desires to give, make, orcommunicate to the other will be effective and valid only when in writing.  Such notice will be deemed duly given whenreceived, if it is mailed by registered or certified mail, return receiptrequested, or sent by personal delivery, facsimile, or a nationally recognizedovernight carrier, return receipt requested, all charges prepaid, addressed inthe case of Seller to:

 

Exxon Mobil Corporation

3225 Gallows Road

Fairfax, VA 22037

Attention: Distributor Business Manager

Facsimile: (703) 846-4511

 

Exxon Mobil Corporation

3225 Gallows Road

Fairfax, VA 22037

Attention: Real Estate Manager

Facsimile: (703) 846 - 4546

 

ExxonMobil Environmental Services

3225 Gallows Road

Fairfax, VA 22037

Attention: Environmental Claims Manager

Facsimile: (703) 846 - 5257

 

and in the case of Purchaser to:

 

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Global Companies LLC

800 South Street

Suite 200

Waltham, MA 02453

Attention: President and Chief Executive Officer

Facsimile: (781) 398-4165

 

With a copy to:

 

Global Companies LLC

800 South Street

Suite 200

Waltham, MA 02453

Attention: General Counsel

Facsimile: (781) 398-9211

 

Or, in either case, at the last address provided by aParty and given by notice as provided by this Section 21.2.

 

21.3            Construction.  Unless the context of this Agreementotherwise requires: (a) words of either gender include the other gender; (b) wordsusing the singular or plural also include the plural or singular, respectively;(c) the terms “hereof,” “herein,” “hereby,” “hereto” and similar wordsrefer to this entire Agreement and not any particular Article, Section, Clauseor Exhibit or any other subdivision of this Agreement; (d) referencesto “Article,” “Section,” “Exhibit,” or “Schedule” are to the Articles,Sections, Exhibits and Schedules, respectively, of this Agreement; (e) thewords “include” or “including” will be deemed to be followed by “withoutlimitation” or “but not limited to” whether or not they are followed by suchphrases or words of like import; and (f) references to “this Agreement” orany other agreement or document will be construed as a reference to suchagreement or document, including any Exhibits and Schedules thereto, asamended, modified or supplemented and in effect from time to time and willinclude a reference to any document that amends, modifies or supplements it, oris entered into, made or given pursuant to or in accordance with itsterms.  Whenever this Agreement refers toa number of days, such number will refer to calendar days unless Business Daysare specified.

 

21.4            Captions.  Captions used in connection with the Articlesand Sections of this Agreement are for convenience only and will not be deemedto enlarge, limit or otherwise modify the meaning or interpretation of thisAgreement

 

21.5            Survival.  The provisions of Article II, Article IV,Articles VI through XIII inclusive, Articles XV through XXI inclusive, will notmerge and will survive Closing and any subsequent transfer of any right titleor interest by Purchaser.  All otherprovisions not included or incorporated in any document to be executed anddelivered at Closing will not survive Closing.

 

21.6            Further Assurances.  Following the Effective Date or the ClosingDate, as the case may be, and for no further consideration, Seller andPurchaser will perform any acts and execute, acknowledge and deliver anyadditional documents reasonably requested by the other Party to: (a) vestPurchaser with all of Seller’s right, title, and interest in the PurchasedAssets and other rights conveyed 

 

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under thisAgreement; (b) carry out the transactions contemplated by this Agreement;and (c) protect each Party’s rights under this Agreement.

 

21.7            Expenses.  Except as otherwise specifically provided,each Party will bear all expenses it incurs in connection with this Agreementand/or any related disputes.  Expensesinclude, but are not limited to, fees charged by counsel, accountants, consultants,and other experts.

 

21.8            Time is of the Essence.  Purchaser acknowledges that significantcoordination is required for a closing, such as separating personnel,accounting for and transferring existing and new fuels, dry goods, andutilities, and other related activities. Accordingly, unless otherwise expressly provided, TIME IS OF THE ESSENCEIN THE PERFORMANCE OF ALL OF PURCHASER’S OBLIGATIONS SET FORTH IN THISAGREEMENT.  Purchaser further understandsand acknowledges that Closing and consummation of the contemplated transactionare subject to and conditioned upon Purchaser’s due and timely performance ofits obligations set forth in Article XII, including, but not limited to,payment of the Purchase Price.

 

21.9            Assignment.  Purchaser may not assign this Agreementwithout Seller’s prior written consent, which consent may be withheld for anyreason.  This Agreement will bind andinure to the benefit of the Parties and their respective successors andassigns.

 

21.10          Counterparts.  This Agreement may be executed by the Partiesin counterpart, each of which will be deemed an original.  Such counterparts together will constituteone and the same instrument.

 

21.11          Governing Law.  This Agreement and the transactionscontemplated herein and all disputes between the Parties under or related tothis Agreement or the facts and circumstances leading to its execution orperformance, whether in contract, tort or otherwise, will be governed by andconstrued in accordance with the laws of the Commonwealth of Virginia, withoutgiving effect to its conflicts of law rules, except that with respect to anydispute involving compliance with Environmental Laws, the Parties agree that itis the Environmental Laws applicable to the Property in dispute that apply withrespect to such compliance.  Each Party: (a)irrevocably submits itself to the personal jurisdiction of the federal courtfor the Eastern District of Virginia in Alexandria, Virginia or, if federaljurisdiction is not available, to the jurisdiction of the Fairfax CountyCircuit Courts, as well as to the jurisdiction of all courts to which an appealmay be taken from such courts, in any suit, action or proceeding arising out ofor relating to this Agreement, any of the transactions contemplated by thisAgreement or any facts and circumstances leading to its execution orperformance; (b) agrees that all claims in respect of such suit, action orproceeding must be brought, heard and determined exclusively in such courts; (c)agrees that it will not attempt to deny or defeat such personal jurisdiction bymotion or other request for leave from such courts; (d) agrees not to bring anysuit, action or proceeding arising out of our relating to this Agreement or anyof the transactions contemplated by this Agreement in any other court; and (e) waivesany defense of inconvenient forum to the maintenance of any suit, action orproceeding so brought.

 

21.12          No Third Party Beneficiary.  Other than with respect to any Seller orPurchaser Indemnified Parties, the Parties agree that no third partybeneficiary rights in favor of any person or entity are, nor are they intendedto be, created by this Agreement.

 

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21.13          No Recording of this Agreement.** **BeforeClosing, neither Party will record this Agreement among any land or clerk’srecords or with any other governmental office. If either Party records this Agreement, it will be deemed, at the optionof the other Party: (a) ipso facto null and void and of no further force;or (b) a material Default and serve as a basis for termination or otherremedies as provided by this Agreement.

 

21.14          1031 Exchange.  Seller may require Purchaser, pursuant to Section 1031of the Internal Revenue Code of 1986, as amended, to pay the Purchase Price toa trust or intermediary party designated by Seller, so Seller may participatein a tax-deferred exchange of like-kind property.  Such election will be made, if at all, bynotice to Purchaser at least ten (10) days before the Closing Date.  The Parties agree to execute any necessaryagreements and/or other documents to effectuate Seller’s tax-deferred exchange,provided: (a) Purchaser’s obligations under this Agreement will not beincreased; (b) such documents will not modify Purchaser’s representations,warranties or obligations under this Agreement; (c) the Purchase Pricepaid by Purchaser will not be different from that which Purchaser would havepaid pursuant to Article III; (d) Purchaser will incur no additionalcost, expense or liability as a result of its cooperation in the exchange; and (e) Sellerwill indemnify and hold harmless Purchaser for additional expenses, including,but not limited to, taxes and closing costs, and any cost or expense (includingreasonable counsel fees) that Purchaser may suffer, sustain or become subjectto as a result of the Purchase Price being paid to a trust or intermediaryparty, rather than to Seller, and the trust’s or intermediary’s subsequent useof the Purchase Price.

 

21.15          Severability.  If any provision in this Agreement isadjudged by any court of competent jurisdiction to be invalid or unenforceable,the judgment will not affect, impair or invalidate the remainder of thisAgreement and will be confined in its operation to the provision of thisAgreement directly involved in the controversy.

 

21.16          Waiver.  Either Party may waive at any time and fromtime to time the terms and conditions of this Agreement under which it isentitled to a benefit.  However, exceptas otherwise specifically provided, a Party’s failure or delay in exercisingits respective rights upon the other Party’s failure to perform or observe anycondition, covenant or provision of this Agreement will not operate as awaiver.  Nor will any single or partialexercise of any right preclude the other Party from exercising its rights underthis Agreement.  No waiver or release ofany of the terms, conditions, or provisions of this Agreement will be valid orasserted or relied upon by either Party or offered in any judicial proceedingor otherwise, unless the same is in writing and duly executed by the waiving orreleasing Party.

 

21.17          Rules of Construction.  The provisions of this Agreement are to beconstrued as a whole according to their common meaning to achieve theobjectives and purposes of this Agreement. Each Party represents that it and its respective counsel have reviewedthis Agreement.  The rule ofconstruction that any ambiguities are to be resolved against the drafting partywill not be employed in interpreting this Agreement as both Purchaser andSeller are considered to have equal bargaining power.

 

21.18          Seller’s Self-Help Rights.  If Purchaser fails to discharge itsobligations under this Agreement, Seller may provide Purchaser notice of therequired action and a reasonable period (not less than thirty (30) days) tocure the failure.  If, notwithstandingsuch notice and opportunity to cure, the failure persists, then Seller may, byseparate notice to Purchaser, specify the action required and a deadline.  If Purchaser fails to cure by such deadline,then in addition to, and without limiting other 

 

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rights and remediesavailable to Seller pursuant to the law and under this Agreement, Seller maytake curative action at Purchaser’s cost and expense.

 

21.19          Material Inducement.  Purchaser’s obligations under this Agreementincluding, but not limited to, Article VII, were in each instance amaterial inducement to Seller to sell each Property to Purchaser.

 

21.20          Time Periods.  If Seller fails to deliver any notice ordocument to Purchaser within a time period set forth in this Agreement,specifically including, but not limited to, Article VII, then Purchaser’ssole remedy after providing Seller with written notice will be to extend anypermissible or required due date for any relevant subsequent action by one (1) dayfor each day that the notice or document was late.

 

21.21          Waiver of Jury Trial.  SELLER AND PURCHASER EXPRESSLY AGREE THAT TOINDUCE THE CONSUMMATION OF THE CONTEMPLATED TRANSACTIONS, AND FOR OTHER GOODAND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH AREACKNOWLEDGED, THE PARTIES KNOWINGLY, VOLUNTARILY, INTELLIGENTLY,EXPRESSLY, AND IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVE,AND WILL WAIVE, TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISINGOUT OF OR CONNECTED WITH THIS AGREEMENT, INCLUDING THE ENFORCEMENT OF ANYREMEDY AUTHORIZED BY THIS AGREEMENT.

 

21.22          Exhibits.  The Parties agree that a number of theExhibits attached hereto are not in final form. Seller shall attach the final form of each Exhibit not later thanfive (5) days before the Final Closing Date, or by such other time periodas may be provided in this Agreement or the Exhibits, and shall notifyPurchaser of Seller’s attachment of any new or changed form of Exhibit tothis Agreement.

 

21.23          Binding Offer.  This Agreement shall constitute a bindingand, except as set forth below, irrevocable offer by Purchaser to buy thePurchased Assets, which offer may be accepted by Seller by execution of thisagreement within ninety (90) days of its submission to Seller.  By his or her signature below, the personexecuting this Agreement on behalf of the Purchaser warrants that he or she hasauthority to bind the Purchaser to this Agreement.  If Seller does not execute this Agreementwithin ninety (90) days after Purchaser’s submission, Purchaser may thereafterrevoke its offer.  In the event of such arevocation, the Signing Deposit shall be released to Purchaser, along with anyinterest thereon.

 

[*Signaturesappear on the following page.*]

 

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IN WITNESS WHEREOF, this Agreement hasbeen executed by Seller and Purchaser on the dates set forth below, and is madeeffective as of the Effective Date.

 
| **EXXONMOBIL OIL CORPORATION,  a New York corporation** | ** **                 | **GLOBAL COMPANIES LLC, a  Delaware limited liability company** |
|---------------------------------------------------------|----------------------------|-----------------------------------------------------------------|
|                                                    |                       |                                                            |
| By:                                                     | /s/ Mark Pagano            |                                                            | By: | /s/ Eric Slifka |
|                                                    |                       |                                                            |   |   |
| Name:                                                   | Mark Pagano                |                                                            | Name: | Eric Slifka |
|                                                    |                       |                                                            |   |   |
| Title:                                                  | Agent and Attorney in Fact |                                                            | Title: | President and Chief Executive  Officer |
|                                                    |                       |                                                            |   |   |
| Date:                                                   | May 24, 2010          |                                                            | Date: | May 24, 2010 |
|                                                    |                       |                                                            |   |   |
|                                                    | ** **                 |                                                            |   |   |
| **EXXON MOBIL CORPORATION, a**                          |                       |                                                            |   |
| **New Jersey corporation**                              |                       |                                                            |   |
|                                                    | ** **                 |                                                            |   |   |
| By:                                                     | /s/ Mark Pagano            |                                                            |   |   |
|                                                    |                       |                                                            |   |   |
| Name:                                                   | Mark Pagano                |                                                            |   |   |
|                                                    |                       |                                                            |   |   |
| Title:                                                  | Agent and Attorney in Fact |                                                            |   |   |
|                                                    |                       |                                                            |   |   |
| Date:                                                   | May 24, 2010          |                                                            |   |   |

 

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**APPENDIX OF EXHIBITS**

 
| Exhibit A-1 | Fee Properties                                                          |
|------------------|-------------------------------------------------------------------------|
| Exhibit A-2 | Lease Properties                                                        |
| Exhibit A-3 | Dealer Owned Service Stations                                           |
| Exhibit A-4 | Allocation of Purchase Price                                            |
| Exhibit A-5 | Earnest Money Deposits                                                  |
| Exhibit B   | Intentionally Omitted                                                   |
| Exhibit C   | Intentionally Omitted                                                   |
| Exhibit D   | Access Agreements                                                       |
| Exhibit E   | Subsurface Clearance “Drilling” Protocol                      |
| Exhibit E-1 | Right of Access Agreement                                               |
| Exhibit F   | Intentionally Omitted                                                   |
| Exhibit G   | Escrow Agreement                                                        |
| Exhibit H   | Assignment and Assumption of Lease  Agreements                          |
| Exhibit I   | Unconditional Guaranty of Performance  and Payment                      |
| Exhibit J   | Quitclaim Deeds                                                         |
| Exhibit K   | Bill of Sale                                                            |
| Exhibit L   | Existing *On the Run*Convenience Stores                                 |
| Exhibit M   | Intentionally Omitted                                                   |
| Exhibit N   | Intentionally Omitted                                                   |
| Exhibit O   | Governmental Reimbursement Fund Schedule  of Seller’s Prior Claims |
| Exhibit P   | Listed Claims                                                           |
| Exhibit Q   | Environmental Release                                                   |
| Exhibit R   | Notification Letter                                                     |
| Exhibit S   | List of Condemnations                                                   |
| Exhibit T   | Assignment of PMPA Franchise Agreements                                 |
| Exhibit U   | Assignment of Non-Petroleum Lease                                       |
| Exhibit V   | Employees and Benefits                                                  |
| Exhibit W   | Statements of Environmental  Responsibility                             |
| Exhibit X   | Assignment of Reimbursement Agreement                                   |
| Exhibit Y   | Inventory                                                               |
| Exhibit Z   | Assignment and Assumption Agreement                                     |
| Exhibit AA  | Reimbursement Fund Letter                                               |
| Exhibit BB  | Contracts                                                               |
| Exhibit CC  | Underground Storage Tank Upgrades                                       |
| Exhibit DD  | Upgrade Escrow Agreement                                                |
| Exhibit EE  | Brand Fee Agreement                                                     |
| Exhibit FF  | Liquidated Damages                                                      |

 

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