Exhibit 10.1


 


SECOND AMENDMENT TO SALE AND PURCHASE AGREEMENT


RETAIL MARKETING ASSETS MASSACHUSETTS, NEW HAMPSHIRE AND RHODE ISLAND


 


This
SECOND AMENDMENT (the “Second Amendment”) to that certain Sale and 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”), as
previously amended by a First Amendment to Sale and Purchase Agreement Retail
Marketing Assets Massachusetts, New Hampshire and Rhode Island, dated as of August 12,
2010 (as amended, the “Purchase Agreement”), is made and entered into as of September 2,
2010 (the “Second 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 Second
Amendment.


 


NOW,
THEREFORE, in consideration of the recitals and the mutual covenants,
conditions and agreements set forth in this Second 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.               Section 6.4  Closing Costs is amended by adding the
following to the end of that Section:  Seller hereby agrees to pay or credit at the
Initial and at one or more of the Subsequent Closings, the sum of Two Million
Five Hundred Fifty Thousand U.S. Dollars ($2,550,000.00) towards the Closing
costs otherwise payable by Purchaser. 
Such payment or credit shall be applied at the Initial Closing and at
one or more of the Subsequent Closings in accordance with the final settlement
statements for such Initial Closing and Subsequent Closings executed by
Purchaser and Seller.  In consideration
for such credit from Seller, Purchaser hereby: 
(a) waives all objections to title and survey under Article V
and any and all rights to terminate the Agreement as to any Property under Section 5.3.3
(b) waives any and all rights under Section 7.2 to remove any Property
or Properties from the Agreement for environmental reasons, (c) acknowledges
and accepts the limited terms remaining on the PMPA Franchise Agreements being
assigned to Purchaser at the Initial Closing, (d) agrees to acquire the
Sites which failed the Massachusetts Title V inspections in their “AS IS” 


 


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condition
and to fulfill all statutory Title V requirements with respect to such Sites
within the time period required by such statutory Title V requirements (a list
of such sites is attached hereto as Schedule 1), and (e) agrees to obtain
all necessary special use permits from applicable governmental authorities for
Site #19478 located at 656 Boston Post Road in Marlborough, MA and Site # 10379
located at 815 Washington Street in Holliston, MA within three (3) months
following the respective Closing for each such Site and to defend, indemnify
and hold harmless the Seller Indemnified Parties for, from and against, without
limitation, all Claims, liability, losses, expenses and costs incurred by
Seller in connection with, resulting from, related to, arising out of, or
attributable in any way to any Claim based on, arising out of or related to the
failure of Purchaser to obtain all necessary special use permits from the
applicable governmental authorities for such Sites..


 


2.               Exhibits.   Exhibits D, O, P, Q S, T, U, V-1 V-2 AND
V-3, W, AA, BB and EE and Schedules H and Q to the Purchase Agreement are
deleted in their entirety and replaced with Exhibits D, O, P, Q S, T, U, V-1
V-2 AND V-3 W, W-1, AA, BB and EE and Schedules H and Q attached hereto and
incorporated herein by this reference. 
Purchaser and Seller agree and understand that such Exhibits and
Schedules may be amended prior to the Initial Closing and to each of the
Subsequent Closings and as amended, shall be incorporated into the SPA by this
reference.


 


3.               Section 7.4.4  Documents Executed at or Prior to Closing.  The first sentence of this Section 7.4.4
is amended to delete the reference to Section 7.3.4 and to substitute in
its stead a reference to Section 7.3.


 


4.               Exhibit FF
Liquidated Damages  The first
sentence of Exhibit FF is hereby modified to read as follows:


 


In the event that the Brand Fee Agreement is terminated in
accordance with its terms, in addition to any damages (liquidated or otherwise)
payable under the Brand Fee Agreement, Purchaser shall pay to EMOC, as
liquidated damages, an amount rounded to the nearest dollar, equal to: 0 cents
times (the total volume of gallons attributable to all Properties and
Dealer-Owned Service Stations transferred to Purchaser pursuant to this
Agreement, as set forth in Exhibit 15 of the Brand Fee Agreement) times
(the number of years, including any partial year, remaining in Purchaser’s
15-year obligation, described in Section 4.1.1 of this Agreement, after
such termination).


 


5.               Dropped
Sites.


 


a.               Site
# 11847 located at 227 Andover Street in Peabody, Massachusetts is hereby
removed from the Agreement and Purchaser and Seller hereby agree to modify the
Purchase Price in Section 3.1 to deduct therefrom the amount of Six
Hundred Seventy-seven Thousand U.S. Dollars 


 


2

















 


($677,000.00), which amount has been
allocated for such Site #11847 on Exhibit A-4.  Exhibit A-1 Sub-market #2 is hereby
amended by removing therefrom the following:


 


	
  11847

  	
   

  	
  227 Andover
  Street

  	
   

  	
  PEABODY

  	
   

  	
  MA

  	
   

  	
  CODO

  	
   

  	
  FEE

  	
   

  	
  EMOC

  	
   

  	
  SNACK SHOP

  



 


Exhibit A-4 Sub-market #2 is hereby amended by removing therefrom
the following:


 


	
  11847

  	
   

  	
  $

  	
  677

  	
   

  	
  $

  	
  267

  	
   

  	
  $

  	
  222

  	
   

  	
  $

  	
  188

  	
   

  



 


b.               Site # 10368
located at 495 Pleasant Street, Attleboro, MA is hereby removed from the
Agreement and Purchaser and Seller hereby agree to modify the Purchase Price in
Section 3.1 to deduct therefrom the amount of Seventy Thousand U.S.
Dollars ($70,000.00), which amount has been allocated for such Site #10368 on Exhibit A-4.  Exhibit A-3 Sub-market #6 is hereby
modified by removing therefrom the following:


 


	
  10368

  	
   

  	
  495 PLEASANT ST

  	
   

  	
  ATTLEBORO

  	
   

  	
  MA

  	
   

  	
  DOSS

  	
   

  	
  Mobil Mart

  



 


Exhibit A-4
Sub-market #6 is hereby amended by removing therefrom the following:


 


	
  10368

  	
   

  	
  $

  	
  70

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  



 


6.               Additional
Sites, Changed Allocations.


 


a.               Site # 13045,
located at 273 E. Berkeley Street in Boston, Massachusetts is hereby added to
the Agreement as one of the Properties and the Purchase Price in Section 3.1
is hereby increased by the amount of Two Million Nine Hundred Thousand U.S.
Dollars ($2,900,000.00). Exhibit A-1 Sub-Market # 2 is hereby amended by
adding thereto the following:


 


	
  13045

  	
   

  	
  273 E. Berkeley
  Street

  	
   

  	
  BOSTON

  	
   

  	
  MA

  	
   

  	
  CODO

  	
   

  	
  FEE

  	
   

  	
  EMOC

  	
   

  	
  Mobil Mart

  



 


Exhibit A-4
Sub-Market # 2 is hereby amended by adding thereto the following:


 


	
  13045

  	
   

  	
  $

  	
  2,900

  	
   

  	
  $

  	
  1,500

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  900

  	
   

  



 


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b.               Site # 84118
located at 131 Commerce Way in Plymouth, MA was inadvertently omitted from Exhibit A-4.  Therefore Exhibit A-4 Sub-Market # 5 is
hereby amended by adding the following:


 


	
  84118

  	
   

  	
  $

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  0

  	
   

  



 


c.               Site 11641 is
located in both the Commonwealth of Massachusetts and the State of New
Hampshire.  Therefore, the allocation on Exhibit A-4
for such Site 11641 is hereby amended to read as follows:


 


	
  11641

  	
   

  	
  $395,800MA

  $65,200
  NH

  	
   

  	
  $116,800 MA

  $65,200
  NH

  	
   

  	
  $151,000

  MA  $0 NH

  	
   

  	
  $128,000 MA

  $0 NH

  



 


d.               The allocation
on Exhibit A-4 for Site # 12422 is hereby modified to read as follows:


 


	
  12422 Service Station

  	
   

  	
  $

  	
  340

  	
   

  	
  $

  	
  128

  	
   

  	
  $

  	
  112

  	
   

  	
  $

  	
  100

  	
   

  
	
  12422 House

  	
   

  	
  $

  	
  25

  	
   

  	
  $

  	
  15

  	
   

  	
  $

  	
  10

  	
   

  	
  $

  	
  0

  	
   

  



 


7.               OTR Agreement.  Purchaser represents and warrants that as of
the date hereof, Purchaser has executed with TMC Franchise Corporation an On the Run Franchise Agreement for the Sites currently
branded On the Run as shown on Exhibit A-1
and Exhibit A-2, as modified by Exhibit L.


 


8.               Permits.  Seller and Purchaser
acknowledge and agree that Purchaser shall operate Site #19478 in Marlborough,
MA, Site # 10379 in Holliston, MA and Site # 11757 in Billerica, MA under
permits that are in the name of Seller and are not assignable to Purchaser
until such time as Purchaser is able to obtain new permits in Purchaser’s or
Purchaser’s Affiliate’s name for such sites. 
Without limiting any indemnification obligations of Purchaser under the
Purchase Agreement, Purchaser hereby agrees to defend, indemnify and hold harmless Seller and
all of the Seller Indemnified Parties for, from and against, without
limitation, all Claims, liability, losses, expenses and costs incurred by
Seller in connection with, resulting from, related to, arising out of, or
attributable in any way to any Claim based on, arising out of or related to
Purchaser’s operation or Purchaser’s franchisee’s operation of such sites
without having the appropriate permits in Purchaser’s or Purchaser’s Affiliate’s
name, including, without limitation, any and all fines, penalties, or
impositions by 


 


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Governmental Authorities
resulting from the failure of the Purchaser or Purchaser’s Affiliate or
Purchaser’s franchisees to have the appropriate permits in the appropriate name
as may be required by the Governmental Authority


 


9.               Closing
Effective.  For all
purposes of the Purchase Agreement the Initial Closing shall occur as of 9:30 a.m.
on September 8, 2010.


 


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


 


11.             Counterparts.  This Second 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.


 


12.             Governing Law.  This Second Amendment and the transactions
contemplated herein and all disputes between the Parties under or related to
this Second Amendment or the facts and circumstances leading to its execution
or performance, whether in contract, tort or otherwise, 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 Second
Amendment, any of the transactions contemplated by this Second 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 Second Amendment or
any of the transactions contemplated by this Second Amendment in any other
court; and (e) waives any defense of inconvenient forum to the maintenance
of any suit, action or proceeding so brought.


 


13.             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 Second Amendment
has been executed by Seller and Purchaser and is made effective as of the
Second Amendment Date.


 


	
  EXXONMOBIL
  OIL CORPORATION,

  a New York corporation

  	
   

  	
  GLOBAL
  COMPANIES LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  D.J. Salamack

  	
   

  	
  By:

  	
  /s/
  Edward J. Faneuil

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  D.J.
  Salamack

  	
   

  	
  Name:

  	
  Edward
  J. Faneuil

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  US
  Business Improvement Mgr

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  September 7,
  2010

  	
   

  	
  Date:

  	
  September 7,
  2010

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXXON MOBIL CORPORATION,
  a

  	
   

  	
   

  	
   

  
	
  New Jersey corporation

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  D.J. Salamack

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  D.J.
  Salamack

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  US
  Business Improvement Mgr

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  September 7,
  2010

  	
   

  	
   

  	
   

  



 


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