Exhibit 10.1


 


FIRST AMENDMENT TO SALE AND PURCHASE AGREEMENT


RETAIL MARKETING ASSETS MASSACHUSETTS, NEW HAMPSHIRE AND


RHODE ISLAND


 


This
FIRST AMENDMENT (the “First Amendment”) to that certain Sale and Purchase
Agreement (the “Purchase Agreement”), dated as of May 24, 2010, by and
among EXXONMOBIL OIL CORPORATION, a New York corporation (“EMOC”), and EXXON
MOBIL CORPORATION, a New Jersey corporation (“EMC” and, together severally with
EMOC, “Seller”), and GLOBAL COMPANIES LLC, a Delaware limited liability company
(“Purchaser”), is made and entered into as of August 12, 2010 (the “First
Amendment Date”) upon the terms and conditions set forth herein.  When provisions herein apply to both or
either Seller or Purchaser, they sometimes are referred to as “Parties” or “Party.”


 


WHEREAS,
pursuant to the Purchase Agreement, Seller has agreed to transfer and assign to
Purchaser, and Purchaser has agreed to accept and assume from Seller, certain
assets and liabilities related to service station properties located in the
States of Massachusetts, New Hampshire and Rhode Island; and


 


WHEREAS,
the Parties desire to amend the Purchase Agreement as set forth in this First
Amendment.


 


NOW,
THEREFORE, in consideration of the recitals and the mutual covenants,
conditions and agreements set forth in this First Amendment, and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
mutually acknowledged, the Parties, intending to be legally bound, agree as
follows:


 


1.                                                               Closing.  Notwithstanding anything to the contrary in
the Purchase Agreement, the Closing of the transactions contemplated by the
Purchase Agreement shall be accomplished in five separate closings as described
below:


 


a.                                       The initial
closing (the “Initial Closing”) shall occur on September 8, 2010.  At such Initial Closing, Seller shall
transfer and assign to Purchaser and Purchaser shall acquire and assume from
Seller all of the Company Owned Dealer Operated Properties, Company Leased
Dealer Operated Properties and the Dealer-Owned Service Stations (the “Group 1
Sites”) pursuant to the terms and conditions of the Purchase Agreement.  Seller and Purchaser shall execute all of the
documents, agreements and exhibits, and take all other actions in respect of
the Group 1 Sites, as may be required under the Purchase Agreement to affect
the Initial Closing (including, without limitation, Seller’s payment into
escrow of the Upgrade Amount related to the Group 1 Sites).  At the Initial Closing, Seller and Purchaser
also shall execute all of the documents, agreements and exhibits, and take all
other actions in respect of the Group 2 Sites (as defined hereinbelow), as may
be required under the Purchase Agreement to effect the Subsequent Closings (as
hereinafter defined) to the extent reasonably achievable by such date, and
shall 


 

















 


place
all such documents, agreements and exhibits into escrow with the Title Company
at the Initial Closing.


 


(i) 
The portion of the Purchase Price to be paid with respect to the Group 1 Sites
(other than Inventory and cash on hand and payments for the transfer of the
dealer reimbursement agreements and dealer loan balances, payments for which
are addressed separately in the Purchase Agreement) shall be One Hundred Fifty
Million Two Hundred Sixty-Seven Thousand U.S. Dollars($150,267,000.00 USD),
plus payments for all fees, costs and expenses and other items to be paid by
Purchaser pursuant to the Purchase Agreement in respect of the Group 1 Sites or
otherwise attributable to the Initial Closing.


 


(ii) 
The Purchase Price for the Group 1 Sites shall be deposited into escrow not
later than 1:00 p.m. Eastern Time on September 7, 2010.  Purchaser agrees to initiate the federal
funds wire for the Purchase Price of the Group 1 Sites not later than 10:00 a.m.
on September 7, 2010.  Purchaser
shall receive at the Initial Closing any Interest Credit due to Purchaser in
connection with that portion of the Purchase Price deposited into escrow for
the Initial Closing.


 


(iii) 
Any credit owed to Purchaser for fifty percent (50%) of the filing fee under
the Hart-Scott-Rodino Act actually paid by Purchaser pursuant to Section 2.6
of the Purchase Agreement (“HSR Credit”) shall be pro-rated and a portion
thereof shall be credited at the Initial Closing and the remainder thereof
shall be credited at the last to occur of the Subsequent Closings (as
hereinafter defined).  Proration of the
HSR Credit shall be as follows: 75% at the Initial Closing and 25% at the last
to occur of the Subsequent Closings (as hereinafter defined).


 


(iv) 
The Deposit shall not be credited to the Purchaser at the Initial Closing but
twenty-five percent thereof (or such lesser amount as Purchaser may determine
in a notice delivered to Seller not later than five (5) Business Days
prior to the first of the Subsequent Closings) shall be credited at each of the
Subsequent Closings until the entire Deposit is credited. The aggregate amount
of interest earned on the Deposit shall not be released to Purchaser until the
last to occur of the Subsequent Closings (as hereinafter defined) has been
completed


 


b.                                      The second
through fifth closings (the “Subsequent Closings”) shall begin on September 27,
2010 and continue daily through September 30, 2010, provided, however,
that either Purchaser or Seller may extend the date of the second through fifth
closings by notice given to the other Party not later than September 16,
2010 so long as all Subsequent Closings are completed not later than October 8,
2010.  The Subsequent Closings shall
consist of the transfer to Purchaser of forty-two (42) Company Operated Retail
Properties (the “Group 2 Sites”).  It is
anticipated that ten (10) such Company Operated Retail Properties will be 


 


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transferred to Purchaser on each of September 27th, 28th, and 29th of 2010 and twelve (12) Company Operated
Retail Properties will be transferred to Purchaser on September 30, 2010,
provided, however, that Purchaser or Seller may modify the number of Company
Operated Retail Properties transferred at any of the Subsequent Closings to a
number mutually acceptable to the Parties hereto, such modification to be
agreed upon by Purchaser and Seller not later than September 16, 2010.


 


(i)            The portion of
the Purchase Price to be paid with respect to the Group 2 Sites (other than
Inventory and cash on hand, payments for which are addressed separately in the
Purchase Agreement) shall be Forty-Nine Million Seven Hundred Thirty-Three
Thousand U.S. Dollars ($49,733,000.00 USD), plus payments for all fees, costs
and expenses and other items to be paid by Purchaser pursuant to the Purchase
Agreement in respect of the Group 2 Sites or otherwise attributable to the
Subsequent Closings.  .


 


(ii)           The Purchase
Price for the Group 2 Sites shall be deposited into escrow not later than three
(3) Business Days prior to the date of the respective Subsequent Closings
for the applicable Group 2 Sites. Any Interest Credit due to Purchaser in
connection with the Subsequent Closings shall be received by Purchaser at the
last to occur of the Subsequent Closings. Seller shall pay the Upgrade Amount
for the Group 2 Sites into escrow at the last to occur of the Subsequent
Closings


 


c.                                       The Final
Closing Date, as such term is defined in Section 1.56 of the Purchase
Agreement, shall mean the date of the last to occur of the Subsequent Closings,
provided, however that such Final Closing Date shall not be later than October 8,
2010.


 


2.                                       End of the
Inspection Period.  Purchaser
has exercised its rights under the last sentence of Section 5.3 to extend
the Inspection Period and has no further right to extend the Inspection
Period.  The Parties agree that the end
of the Inspection Period will be August 23, 2010.  As a result of the exercise by Purchaser of
the extension of the Inspection Period and the modification of the date of
Closing as set forth above, the following Sections of the Purchase Agreement
are hereby modified:


 


a.                                       Section 1.68
is hereby modified to read as follows:


 


1.68                                                 Inventory means all inventories of refined petroleum
products in bulk storage owned by Seller, if any, at any Company-Operated
Retail Property as of the Closing; all convenience store merchandise for resale
owned by Seller, if any, at any Company-Operated Retail Property 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, Inventory
shall not include any consigned inventory; and provided, further, 


 


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that,
absent agreement prior to August 26, 2010, between Purchaser and the then
current On the Run franchisor
providing for Purchaser’s use of the On the
Run trademarks and other intellectual property, Inventory shall
not include any On the Run
branded merchandise.


 


b.                                      The fifth
sentence of Section 2.2.1 Transfer of Fee Properties is hereby
modified to read as follows:


 


If
by a date five (5) Business Days prior to the Final Closing Date, Seller
has not obtained such waiver and/or Seller has elected not to offer the right
of first refusal to the third party holder, Seller will notify Purchaser and
Purchaser may: (i) after notice to and consent of Seller, which consent
may be withheld for any reason whatsoever, use its own efforts to obtain such
third party’s waiver to the extent such efforts do not create any additional
liability to Seller; (ii) with Seller’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 or require the affirmative consent of the
holder thereof; or (iii) remove such Fee Property from this Agreement and
reduce the Purchase Price by the amount of the allocated Purchase Price for
such Fee Property set forth on Exhibit A-4.


 


c.                                       The fifth
sentence of Section 2.2.2 Transfer of Lease Properties is hereby
modified to read as follows:


 


If
Seller has not obtained such consent by a date five (5) Business Days
prior to the Final Closing Date, Seller will notify Purchaser and Purchaser
may: (a) after notice to and consent of Seller, which consent may be
withheld for any reason whatsoever, use its own efforts to obtain such landlord’s
consent to the extent such efforts do not create any additional liability to
the Seller; (b) enter into a new lease with such landlord effective as of
the Final Closing Date so long as such landlord agrees to terminate the
existing lease between Seller and such landlord releases Seller from any
liability under such existing lease; (c) with Seller’s consent, which
consent may be withheld for any reason whatsoever, elect to enter into a
sublease between Seller and Purchaser, so long as such sublease does not
require the affirmative consent of such landlord; or (d) remove such Lease
Property from this Agreement and reduce the Purchase Price by the amount of the
allocated Purchase Price for such Lease Property set forth on Exhibit A-4.


 


d.                                      The first
sentence of Section 2.2.4 On the Run
CORS Properties is hereby modified to read as follows:


 


In
the event that Purchaser fails to provide Seller, no later than 30 days prior
to the first to occur of the Closing of the Company Operated Retail Properties,
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 


 


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property
at the Company-Operated Retail Properties from and after the respective
Closings, then Seller shall, prior to the applicable Closing, remove from or
otherwise discontinue the use of all signage, property and products bearing the
On the Run trademark, or any related
trademarks, tradenames or other intellectual property, and the On the Run CORS Properties will be transferred at the
respective Closings without the On the Run
brand.


 


e.                                       The sixth
sentence of Section 2.5.3 Non-Petroleum Leases is hereby modified
to read as follows:


 


If Seller has not obtained such consent by
five (5) Business Days prior to the Final Closing Date, Seller will notify
Purchaser and Purchaser may: (a) after notice to and consent of Seller,
which consent may be withheld for any reason whatsoever, use its own efforts to
obtain such tenant’s consent to the extent such efforts do not create any
additional liability to Seller; (b) enter into a new lease with such
tenant effective as of the applicable Closing Date so long as such tenant
agrees to provide Seller with a termination of the existing lease containing a
release of Seller from any liability under such lease; or (c) remove the
Property subject to such NPL from this Agreement and reduce the Purchase Price
by the amount of the allocated Purchase Price for such Property set forth on Exhibit A-4.


 


f.                                         The third
sentence of Section 5.3.3 is hereby modified to read as follows:


 


If Seller elects not to cure an
Objection, or if Seller undertakes to cure an Objection but then determines
that cure is not reasonably achievable, then Seller will give notice of the
same to Purchaser not later than fifteen (15) days prior to the Final Closing
Date.


 


3                                          Updated
Exhibits.  As a result
of the modification of the date of Closing, it may become necessary, following
the date of the Initial Closing, with respect to the Group 1 Sites and the date
of the Subsequent Closings, with respect to the Group 2 Sites, for Seller to
update Exhibits which are required to be delivered at Closing.  The parties hereby agree to cooperate in the
delivery and acceptance of such revised Exhibits following the Initial Closing
and Subsequent Closings.


 


4.                                       Defined Terms.  Capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Purchase Agreement.


 


5.                                       Counterparts.  This First Amendment may be executed by the
Parties in counterpart, each of which will be deemed an original.  Such counterparts together will constitute
one and the same instrument.


 


6.                                       Governing Law.  This First Amendment and the transactions
contemplated herein and all disputes between the Parties under or related to
this First Amendment or the facts and circumstances leading to its execution or
performance, whether in contract, tort or otherwise, 


 


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will
be governed by and construed in accordance with the laws of the Commonwealth of
Virginia, without giving effect to its conflicts of law rules.  Each Party: (a) irrevocably submits
itself to the personal jurisdiction of the federal court for the Eastern
District of Virginia in Alexandria, Virginia or, if federal jurisdiction is not
available, to the jurisdiction of the Fairfax County Circuit Courts, as well as
to the jurisdiction of all courts to which an appeal may be taken from such
courts, in any suit, action or proceeding arising out of or relating to this
First Amendment, any of the transactions contemplated by this First Amendment
or any facts and circumstances leading to its execution or performance; (b) agrees
that all claims in respect of such suit, action or proceeding must be brought,
heard and determined exclusively in such courts; (c) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from such courts; (d) agrees not to bring any suit,
action or proceeding arising out of our relating to this First Amendment or any
of the transactions contemplated by this First Amendment in any other court;
and (e) waives any defense of inconvenient forum to the maintenance of any
suit, action or proceeding so brought.


 


7.                                       Entire
Agreement, No Other Amendments.  The Purchase Agreement, as amended hereby,
constitutes the entire agreement between the Parties pertaining to the subject
matter hereof, and supersede all prior and contemporaneous agreements,
understandings, negotiations, and discussions of the Parties in connection with
the subject matter hereof, except as specifically set forth herein.  Except as expressly amended herein, the terms
of the Purchase Agreement shall remain in full force and effect.


 


[Remainder of Page Intentionally Left Blank]


 


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IN WITNESS WHEREOF, this First Amendment
has been executed by Seller and Purchaser and is made effective as of the First
Amendment Date.


 


	
  EXXONMOBIL
  OIL CORPORATION,

  	
  GLOBAL
  COMPANIES LLC, a Delaware

  
	
  a New
  York corporation

  	
  limited
  liability company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Don J. Salamack

  	
   

  	
  By:

  	
  /s/
  Thomas J. Hollister

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Don
  J. Salamack

  	
   

  	
  Name:

  	
  Thomas
  J. Hollister

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  US
  Business Improvement Manager

  	
   

  	
  Title:

  	
  Chief
  Operating Officer and Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  August 19,
  2010

  	
   

  	
  Date:

  	
  August 12,
  2010

  
	
   

  	
   

  
	
   

  	
   

  
	
  EXXON
  MOBIL CORPORATION, a

  	
   

  
	
  New
  Jersey corporation

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Don J. Salamack

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Don
  J. Salamack

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  US
  Business Improvement Manager

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  August 19,
  2010

  	
   

  	
   

  



 


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