Exhibit 10.2


 


FACILITIES
MANAGEMENT AGREEMENT


 


BETWEEN


 


GLOBAL
COMPANIES LLC

(OWNER)


 


AND


 


ALLIANCE
ENERGY LLC

(MANAGER)


 


* * *


 


Effective as of September 8, 2010


 

















 


FACILITIES
MANAGEMENT AGREEMENT


 


THIS FACILITIES MANAGEMENT AGREEMENT (this “Agreement”)
is made and entered into this 13th day of
September, 2010, with an effective date as of the 8th day of September, 2010
(the “Effective Date”), by and between Global Companies LLC, a Delaware limited
liability company (“Owner”), and ALLIANCE ENERGY LLC, a Massachusetts limited
liability company (“Manager”).


 


WITNESSETH:


 


WHEREAS, Owner owns (in fee or by lease), and has
leased to third-party operators those certain fuel and convenience store
facilities, together with the ancillary services in connection therewith,
described on Exhibit “A-1” attached hereto (as the same may be amended
from time to time, the “CODO Facilities”);


 


WHEREAS, Owner supplies fuel to those certain
third-party owned or operated fuel and convenience store facilities, described
on Exhibit “A-2” attached hereto (as the same may be amended from time to
time, the “DOSS Facilities”; together with the CODO Facilities, are hereinafter
defined collectively as the “Facilities” and each individually as a “Facility);
and


 


WHEREAS, Owner desires to employ Manager in the
management and operation of the Facilities by delegating to Manager duties with
respect to the day-to-day operation, direction, management and supervision of
the Facilities, and Manager desires to assume such duties upon the terms and
conditions set forth in this Agreement.


 


NOW, THEREFORE, in
consideration of the premises and the mutual promises and covenants herein
contained, Owner and Manager agree as  follows:


 


ARTICLE I


 


DEFINITIONS


 


The following terms shall have the following meanings
when used in this Agreement:


 


1.1          Affiliate. An Affiliate
of a Person shall mean (i) any other Person that is directly or indirectly
(through one or more intermediaries) controlled by, under common control with,
or controlling such Person, or (ii) any other Person in which such Person
has a direct or indirect equity interest constituting at least a majority
interest of the total equity of such other Person. For purposes of this
definition, “control” shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of any
Person or the power to veto major policy decisions of any Person, whether
through the ownership of voting securities, by contract or otherwise.  For purposes of this Agreement, Owner and
Manager shall not be deemed Affiliates of one another, as such term is used and
applied herein.


 


1.2          Budget. A composite of an operating
budget and a capital budget as mutually agreed upon by Owner and Manager from
time to time, but not less frequently than once every Fiscal Year.


 


1.3          Depository. One or more
national or state banks approved by Owner.


 


1.4          Environmental
Laws. Any and all federal, state, or local laws, statutes,
ordinances, rules, decrees, orders, or regulations relating to the 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 Facility, or soil, water and groundwater
conditions, including, but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601,
et seq., the Resource Conservation 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, as amended, 42 U.S.C. § 1251, et seq., the Federal
Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq., any amendments
to the foregoing, and any similar federal, state or local laws, statutes,
ordinances, rules, decrees, orders or regulations.


 


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1.5          Facilities Employees. Those persons
employed by Manager in order to directly manage, lease, maintain and operate
the Facilities as contemplated by the Budget; provided that Facilities
Employees shall not include any employees above the grade of territory manager
and shall not include general administrative employees of Manager or its
Affiliates engaged in oversight, administration or accounting for the
Facilities.


 


1.6          Fiscal Year. The year
beginning January 1 and ending December 31, or as otherwise
established by Owner.


 


1.7          GAAP. Generally accepted
accounting principles, consistently applied.


 


1.8          Governmental Authority. Governmental
Authority shall mean any federal, state, county, municipal or other government
or any governmental or quasi-governmental agency, department, commission,
board, bureau, office or instrumentality, foreign or domestic, or any of them.


 


1.9          Initial Term. Subject to
earlier termination, the initial term of this Agreement shall commence on the
Effective Date hereof and shall continue until September 30, 2013.


 


1.10        Person. Person shall mean an individual, a
partnership, a limited liability company, a corporation, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization,
or a Governmental Authority.


 


1.11        Related Management Agreement. That certain Facilities
Management Agreement between Global Montello Group Corp. and Manager dated on
or about the date hereof.


 


1.11        Standards.  The standard of care and skill required to
effectively operate fuel and convenience store facilities (and those ancillary
services related thereto) consistent with industry practices for facilities
which are otherwise comparable to the Facilities.  To the extent, and for the duration that, any
individual Facility is governed by the terms and conditions of any agreement by
and between ExxonMobil Oil Corporation and/or Exxon Mobil Corporation (singly
or collectively, “XMO”) and Owner, as the same may be amended, extended or
replaced from time to time, the term “Standards” shall also mean and include
the standard of care and skill required by XMO pursuant to those certain
procedures and standards established by XMO from time to time.


 


1.12        Subsequent Term.  As defined in Section 7.5 of this
Agreement.


 


1.12        Term. Subject to earlier
termination or extension, collectively the Initial Term and any and all
Subsequent Terms.


 


ARTICLE II


 


DUTIES AND RIGHTS OF MANAGER


 


2.1          Appointment of Manager.


 


(a)          During the Term of this Agreement, Owner hereby approves
and designates Manager as its agent and grants to Manager the right to
supervise and direct the day-to-day management and operation of the Facilities
upon the terms and conditions provided herein. 
Manager hereby agrees to the foregoing in consideration of the
compensation hereinafter provided and pursuant to the terms and conditions
provided herein.


 


(b)         Manager, as an independent contractor and as agent of the
Owner, has the authority to control and direct the day-to-day management and
operation of the Facilities. Except as otherwise set forth herein, and provided
the same are included in the Budget, all obligations or expenses incurred
hereunder, including the pro rata portion used
in connection with or for the benefit of the Facilities of all
purchases of, or contracts for, sales or services in bulk or in volume which
Manager may obtain for discount or convenience in


 


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connection with its operation of other fuel and
convenience stores, shall be for the account of, on behalf of, and at the
expense of, Owner, except as otherwise specifically set forth in this
Agreement.


 


(c)          In performing its duties, responsibilities, and obligations
hereunder, Manager accepts the relationship of trust and confidence established
between Owner and Manager by this Agreement, and agrees: (i) to act in a
fiduciary capacity with respect to the matters subject to Manager’s control
under this Agreement; (ii) to deal at arm’s length with all persons and
parties providing services with respect to the Facilities; (iii) to
furnish its skill and judgment in the operation of the Facilities in accordance
with the Standards; (iv) to cooperate with Owner and to furnish efficient
business administration and oversight in a manner consistent with the Budget; (v) to
coordinate with Owner and obtain direction, approvals, and consents from Owner
to the extent required under this Agreement; and (vi) to devote a
sufficient amount of time, attention, skilled personnel, and other resources to
its duties and responsibilities under this Agreement.


 


2.2          General Operation.


 


(a)           Manager
shall operate the Facilities in accordance with the Standards, including,
without limitation, ensuring compliance with all branding and proprietary
requirements.


 


(b)           In
addition to the other obligations of Manager set forth herein, Manager shall
render the following services consistent with the Budget and perform the
following duties for Owner in a faithful, diligent efficient manner:


 


(1)           Provide all management services as described on Exhibit “B”
attached hereto and incorporated herein;


 


(2)           Provide quality merchandise and maintain adequate
inventory of motor fuel and convenience store inventory normally offered for
sale from a first class, full service, automotive service station and
convenience store of similar size and type to the Facilities;


 


(3)           Perform all services in a good workmanlike manner;


 


(4)           Ensure orderly and well-kept business establishments and
keep the Facilities (interior and exterior), sidewalks, pump islands,
approaches, landscaping and driveways properly lighted, clean, safe, sanitary
and free of trash, rubbish and other debris;


 


(5)           Maintain sufficiently trained and qualified employees
required to consistently operate the Facilities in an efficient, courteous and
organized manner; and


 


(6)           Comply with the requirements of any conditional use
permit(s), license(s), approval(s) and all other applicable laws covering
the operation of the Facilities.


 


2.3          Manager and Other Personnel.


 


(a)          Manager shall have in its employ at all times sufficient
number of capable Facilities Employees to properly, safely, and economically
manage, operate and maintain the Facilities, as set forth in the Budget. All
matters pertaining to the employment, supervision, compensation, promotion, and
discharge of such employees are the responsibility of Manager; provided
however, that salaries, wages, and costs of each Facilities Employee shall be
detailed in the Budget and such amounts shall be paid from the Facilities
accounts.


 


(b)         Manager shall comply with all applicable laws and
regulations having to do with worker’s compensation, social security,
unemployment insurance, hours of labor, wages, working conditions and other
employer-employee related subjects under Manager’s control. Manager represents
that it is and will continue to be an Equal Opportunity Employer.


 


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(c)          Manager shall comply with all federal immigration laws
relating to its employees and shall not employ any person who is not authorized
to work or remain a resident of the United States pursuant to federal law.


 


(d)         Manager shall work with Owner to comply with all municipal,
state and federal laws relating to the storage, distribution and sale of
tobacco products and alcoholic beverages, including maintaining the proper
permits for the Facilities and Manager’s employees working at the Facilities
for the sale thereof.


 


(e)          All persons employed in connection with the management and
operation of the Facilities shall be employees of the Manager or of such
consultants, independent contractor or contractors as may be retained by
Manager.


 


2.4          Contracts and Supplies. Manager shall,
in the name of, and on behalf of, Owner, and at Owner’s expense, and in
accordance with the Budget, (x) consummate arrangements with
concessionaires, licensees, suppliers, vendors and other providers of goods and
services to the Facilities, as applicable, (y) enter into contracts for
the furnishing to the Facilities of electricity, gas, water, telephone,
cleaning, vermin extermination, heating, ventilation and air-conditioning
maintenance, security protection, pest control, and any other utilities, goods,
services and concessions to be provided in connection with the maintenance and
operation of the Facilities in accordance with the Standards, as applicable,
and (z) place purchase orders for such equipment, tools, appliances,
materials and supplies as are necessary to properly maintain, and are used
exclusively for, the Facilities, as applicable. Any contracts or agreements (i) with
a cancellation or termination fee in excess of $100,000, or (ii) the scope
of which are outside of the ordinary course of business and are not otherwise
contemplated under the Budget, shall be executed by Owner, but other contracts
and agreements may be executed by Manager as Owner’s agent. Each such contract
or agreement shall: (a) be in the name of the Facility or Facilities it
will serve, (b) be assignable, at Owner’s option, to Owner or Owner’s
nominee, (c) include a provision of cancellation thereof by Owner or
Manager upon not more than one hundred twenty (120) days written notice and/or
contain a cancellation or termination fee not in excess of $100,000, unless
otherwise agreed in writing by Owner and Manager, and (d) shall require
that all contractors provide evidence of sufficient insurance and named
insureds on terms satisfactory to Owner. If this Agreement is terminated
pursuant to Article VII, Manager shall, at Owner’s option, assign to Owner
or Owner’s nominee all contracts and agreements pertaining to any of the
Facilities. Manager shall notify Owner if any such contracting entity is either
a subsidiary, affiliate, or has any other relationship whatsoever to Manager.
Manager shall be authorized to use third party services so long as the prices
for services/sales by such parties are competitive with other market-rate suppliers.
Manager shall pass on to Owner, as additional operating revenue or reduced
operating expenses, as the case may be, all rebates and discounts received by
Manager or its Affiliates in connection with its management of the Facilities.


 


2.5          Alterations, Repairs and Maintenance.


 


(a)           Manager shall make or install, or cause to be made and
installed, or do or cause to be done at Owner’s expense and in the name of
Owner, all reasonably necessary or desirable repairs, interior and exterior
cleaning, painting and decorating, plumbing, alterations, replacements,
improvements and other normal maintenance and repair work on and to the
Facilities consistent with the Standards and in accordance with the Budget;
provided, however, that no unbudgeted expenditure in excess of $50,000 per item
may be made for such purposes without the prior written approval of Owner,
unless emergency repairs involving manifest danger to life or property are
immediately necessary for the preservation of the safety of the Facilities, or
for the safety of the customers, are required to avoid the suspension of any
necessary service to the Facilities, or are in response to spills, in which
event such expenditures may be made by the Manager without prior approval and
irrespective of the cost limitations imposed by this Section 2.5(a).
Manager shall, however, before the end of the next business day, notify Owner
in detail of such expenditures.


 


(b)           In accordance with the terms of the Budget or upon written
approval (except in the case of emergency) of Owner, Manager shall, at Owner’s
expense, from time to time during the Term hereof, make all


 


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required capital replacements or repairs to the
Facilities.


 


2.6          Licenses and Permits. Manager and
Owner shall work together to apply for, obtain and maintain, in the name and at
the expense of Owner, all licenses and permits required of Owner or Manager in
connection with the management and operation of the Facilities. Owner agrees to
execute and deliver any and all applications and other documents and to
otherwise reasonably cooperate with Manager in applying for, obtaining and
maintaining such licenses and permits.


 


2.7          Compliance. Manager, at
Owner’s expense, shall cause all such acts and things to be done in and about
the Facilities as Manager shall reasonably deem necessary to comply with (a) all
laws, regulations and requirements of any federal, state or municipal
government, having jurisdiction respecting the use or manner of use of the
Facilities or the maintenance or operation thereof, and (b) the Standards.


 


2.8          Legal Proceedings. If Manager
shall receive any notice or become aware of any claim, demand, suit or other
legal proceeding made or instituted against Owner and/or Manager on account of
any matter connected with any Facility, Manager shall give Owner and all
applicable insurance companies all information in its possession in respect
thereof, and shall assist and cooperate with Owner in all respects in the
defense of any such suit or other legal proceeding. Manager shall obtain the
written authorization of Owner before entering into any compromise, settlement,
or release of any such legal action; provided, however, the written
authorization of Owner shall not be required for any compromise, settlement, or
release of legal action if (a) the cost to Owner of the same is less than
$5,000, or (b) such action is within the ordinary course of business. Any
moneys for such settlements paid out by Manager shall be an operating expense
of the Facilities. Except in connection with the defense of any suit or other
legal proceeding as to which Owner or Manager is obligated to indemnify the
other party under Sections 6.2 or 6.3, respectively, reasonable attorney’s
fees, filing fees, court costs and other necessary expenditures incurred in the
connection with such action shall be paid out of the Facilities operating
account or shall be reimbursed directly to Manager by Owner. Manager, with
Owner’s approval, may select the attorney or attorneys to handle any and all
such litigation.


 


2.9          Notice to Owner. Manager shall promptly
notify Owner in writing of the occurrence of any of following: (i) any
material breach of this Agreement by Owner or Manager, (ii) following
detection of, any fraud, misrepresentation or embezzlement by Manager or any of
the Facilities Employees (other than cash shortages, inventory shrinkage or
petty theft, which are otherwise not unusual in the operation of fuel and
convenience store facilities), and (iii) any other significant event whether
occurring at a Facility or off-site which could have an adverse material effect
on the operation of the Facilities individually or collectively.


 


2.10        Environmental Compliance.


 


(a)           Manager agrees to comply and cooperate with and abide by
all Environmental Laws.  Manager shall
adopt and use, or cause to be adopted or used, all engineering and related
technical assistance available and standard to the industry and any required by
the Governmental Authority to protect the health and safety of persons, which
may include, depending upon development activities occurring at the Facilities
from time to time, the use of engineering controls to prevent the migration of
vapors and/or liquids containing contamination into any buildings, underground
utilities or storm water retention/detention ponds.


 


(b)           Manager shall forward to Owner immediately upon receipt,
by facsimile or overnight service, copies of all notices from Governmental
Authorities that may apply to or affect Owner’ interest or rights in the
Facilities, or that result from actual or alleged violations of law or
standards at any Facility. Owner shall have the right to promptly investigate
and undertake the appropriate remedy. Manager agrees to cooperate at all times
with Owner, and/or the prior owners of the Facilities, during any investigation
or remedial activity.


 


(c)           Manager agrees that representatives of Owner shall be
permitted to enter upon the Facilities from time to time to perform physical
measurements and reconciliation(s) of product stored in the UST system


 


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and to inspect and/or test any equipment and review
any records used for complying with any local, state or Federal environmental
protection or environmental compliance requirement including, but not limited
to, Manager’s inventory reconciliation(s) and inspection records. However,
Owner is not obligated to make any such inspections or tests.


 


ARTICLE III


 


MANAGEMENT
FEES


 


3.1          Management Fee. Management
fees shall be paid to Manager in such amounts and at such times as set forth on
Exhibit “C” attached hereto and incorporated herein and as otherwise set
forth herein.


 


ARTICLE IV


 


DEPOSITS
AND DISBURSEMENTS


 


4.1          Bank Deposits. All amounts
received at or with respect to the Facilities by Manager for, or on behalf of,
Owner shall be deposited by Manager with the Depository in such accounts and in
such a manner as mutually agreed to by the chief financial officers of Owner
and Manager.  All monies of Owner held by
Manager pursuant to the terms hereof shall be held by Manager in trust for the
benefit of Owner to be held and disbursed in accordance with this Agreement.


 


4.2          Disbursement of Deposits. Manager shall
disburse and pay all funds on deposit in the operating accounts maintained
hereunder on behalf of, and in the name of, Owner in such amounts and at such
times as the same are required in connection with the ownership, maintenance
and operation of the Facilities, as applicable, in accordance with the Budget,
subject to the limitations set forth in this Agreement, including Section 4.1
above.


 


4.3          Working Capital. Owner shall
furnish and maintain in the operating accounts maintained by Manager hereunder
such funds as may be necessary to discharge financial commitments required to
efficiently operate the Facilities, meet all payrolls and satisfy, before
delinquency, all accounts payable, and reimburse Manager for authorized costs
and expenses paid or incurred by Manager hereunder; it being understood and
agreed that Manager shall have no responsibility or obligation with respect to
furnishing any such funds.


 


4.4          Authorized Signatories. Any persons
from time-to-time designated by Manager and approved by Owner shall be
authorized signatories on all bank accounts established by Manager hereunder
and shall have authority to make disbursements from such accounts, subject to
the limitations set forth herein.


 


ARTICLE V


 


ACCOUNTING


 


5.1          Books and Records. Manager shall
keep books and records in accordance with GAAP or by such other manner as
reasonably requested by Owner from time to time.  Manager shall preserve all books and records
for a period of seven (7) years. 
Books and records shall be kept at the Facilities or at the locations
where any central accounting and bookkeeping services are performed by Manager,
but at all times shall be the property of Owner.


 


5.2          Periodic Statements and Audits.  Manager shall deliver, or cause to be
delivered, to Owner such reports as are required to be prepared and/or
delivered by Manager or as otherwise reasonably requested by Owner from time to
time.


 


5.3          Internal Control over Financial Reporting.  As it pertains herein, Owner shall, with the
assistance of Manager, be responsible for establishing and maintaining
effective internal control over financial


 


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reporting (the process for which is designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP) and
assessing the effectiveness of internal control over financial reporting.  As it pertains herein, Owner shall, with the
assistance of Manager, perform an evaluation and make an assessment of the
effectiveness of internal control over financial reporting as of each Fiscal
Year ending December 31, based on criteria established in Internal
Control-Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission (“COSO”).  Based on such assessment, Owner, with the
assistance of Manager, shall conclude whether effective internal control over
financial reporting was maintained for each Fiscal Year ending December 31,
based on the control criteria established by COSO.  Additionally, Manager shall advise Owner
whether there has been any change in the internal control over financial
reporting that occurred during each fiscal quarter ending March 31, June 30,
September 30 and December 31 that has materially affected, or is
reasonably likely to materially affect, the internal control over financial
reporting.


 


ARTICLE VI


 


GENERAL
COVENANTS OF OWNER AND MANAGER


 


6.1          Owner’s  Right of Inspection and Review.  For the purpose of examining or inspecting
the Facilities and examining or auditing or making extracts of books and
records, Owner and Owner’s partners, accountants, attorneys and agents shall
have the right, upon reasonable notice, to enter upon any part of the
Facilities, or at the locations where central accounting and bookkeeping
services are performed by Manager, at all reasonable times during the Term of
this Agreement; provided that any inspection shall be done with as little
disruption to the business of the Facilities or Manager as possible. Manager
shall be entitled to require that representatives of Owner conducting any such
inspection be accompanied by representatives of Manager.


 


6.2          Owner’s Indemnity. Manager shall
be indemnified and held harmless by Owner from and against any and all claims,
demands, liabilities, costs (including reasonable attorney’s fees), damages, and
causes of action of any nature whatsoever arising out of or incidental to
Manager’s performance of its responsibilities under this Agreement except as
provided to the contrary in this Agreement or where Manager has committed (i) fraud,
(ii) gross negligent acts or omissions, (iii) willful misconduct, (iv) a
material breach of any provision of this Agreement, or (v) the alleged or
actual violation by Manager of labor, employment, or discrimination laws (in
any or all such cases in (i)-(v), an “Improper Action”). Notwithstanding the
foregoing, Owner shall defend, indemnify and hold Manager and its Affiliates
harmless from any claims, damages or liabilities related to environmental
contamination and/or remediation arising out of a release of gasoline, diesel
or any hazardous substance at the Facilities (an “Environmental Action”),
except to the extent such Environmental Action arose out of the gross
negligence or intentional acts of, or material breach of Section 2.10 of
this Agreement by, Manager or its Affiliates, employees, agents or
representatives.


 


6.3          Manager’s Indemnity. Manager shall
indemnify and hold Owner harmless from and against any and all claims, demands,
liabilities, costs (including reasonable attorney’s fees), damages, and causes
of action of any nature whatsoever arising out of activities by Manager
constituting an Improper Action or due to the gross negligence or intentional
acts of, or material breach of Section 2.10 of this Agreement by, Manager
or its Affiliates, employees, agents or representatives resulting in an
Environmental Action; provided, however, Manager’s aggregate liability
hereunder and under the Related Management Agreement shall in no event exceed
Five Million Dollars ($5,000,000), over and above the utilization of any and all
insurance proceeds.


 


6.4          Waiver of Claims.
Notwithstanding anything in this Agreement to the contrary, Owner and Manager
hereby waive and release each other from any and all right of recovery, claim,
liability, loss or damage that may occur to the Facilities or any personal
property within the Facilities by reason of fire, elements, casualty, or other
matters which are insurable under an all-risk property insurance policy,
regardless of whether the negligence or fault


 


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of the other party or other
party’s agents, officers, or employees causes or is alleged to have caused such
claim, liability, loss or damage; provided, however, that if either party’s
acts or omissions under this Agreement or in connection therewith result, for
any reason, in nonpayment or underpayment of insurance proceeds covering such
claim, loss, liability or damage, or in payment by such other party of a
deductible, the offending party shall indemnify, pay, bear and hold the
non-offending party harmless for the actual losses and expenses resulting from
or associated with such liability, claim, loss or damage. Owner and Manager
shall obtain a waiver of subrogation from their respective insurance companies,
which have issued policies covering all risk of direct physical loss and shall
have the insurance policies endorsed, if necessary, to prevent the invalidation
of the insurance coverages by reason of the mutual waivers contained herein.


 


6.5          Scope of Indemnity. Any party’s
duty to indemnify any other party, as provided for in Section VI hereof,
shall include the obligation to defend the indemnified party in any such
action. All costs and expenses of such defense shall be borne by the
indemnifier. In the event the indemnitee deems it necessary or expedient to
procure legal representation in such proceeding in order to protect the
indemnitee’s rights therein, all costs and expenses of such defense (including,
but not limited to, reasonable attorney’s fees) shall be borne by the
indernnitor. The indemnitor waives for itself and for its insurance carriers
any rights of subrogation which the indemnitor’s insurance carriers may have
against the indemnitees. THE INDEMNITIES SET
FORTH IN THIS ARTICLE VI SHALL APPLY EVEN IF THE SUBJECT LOSSES, CLAIMS,
LIABILITIES OR DAMAGES ARE DUE IN PART TO AN INDEMNITEE’S GROSS NEGLIGENCE
OR OTHER FAULT BUT SHALL NOT EXTEND TO THE PERCENTAGE OF DAMAGES CAUSED BY SUCH
INDEMNITEE’S GROSS NEGLIGENCE OR OTHER FAULT.


 


6.6          Term of Indemnification. The
indemnification made by any party to this Agreement, for and on behalf of any
other party to this Agreement, for and on behalf of any other party to this
Agreement, shall survive the termination of this Agreement.


 


ARTICLE VII


 


DEFAULTS
AND TERMINATION RIGHTS


 


7.1          Termination Upon Event of Default.


 


(a)           The
following shall constitute events of default (“Events of Default”):


 


(i)                  the filing of a voluntary
petition in bankruptcy or insolvency or a petition for reorganization under any
bankruptcy law by either Owner or Manager;


 


(ii)               the consent to an
involuntary petition in bankruptcy or the failure by either Owner or Manager to
vacate within sixty (60) days from the date of entry thereof of any order
approving an involuntary petition;


 


(iii)            the entering of an order,
judgment or decree by any court of competent jurisdiction, on the application
of a creditor, adjudicating either Owner or Manager a bankrupt or insolvent or
approving a petition seeking reorganization or appointing a receiver, trustee
or liquidator of all or a substantial part of such party’s assets, and such
order, judgment or decree shall continue unstayed and in effect for a period of
sixty (60) days;


 


(iv)           the gross negligence, fraud
or willful misconduct of Owner or Manager, as the case may be, in the
performance or observance of its obligations, duties or services, as
applicable, provided for under the terms of this Agreement, to the extent the
same materially and adversely effects the non-defaulting party;


 


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(v)              the failure of either Owner
or Manager to perform, keep or fulfill any of the covenants, undertakings,
obligations or conditions set forth in this Agreement to the extent the same
materially and adversely effects the non-defaulting party, and the continuance
of any such default for a period of ninety (90) days after written notice of
said failure or, if such default (a) is not a default in the payment of a
monetary sum provided to be paid under this Agreement, and (b) cannot be
reasonably cured within such ninety (90) day period but is susceptible of cure
with reasonable diligence, and Owner or Manager (whichever is the defaulting
party) commences such cure promptly following receipt of written notice of said
failure, then for such additional period as such cure shall continue to be
pursued with reasonable diligence, but in any event not longer than one hundred
twenty (120) days after written notice of said failure, unless and except
further extensions of the cure period are afforded to the defaulting party upon
written consent from the non-defaulting party, which consent shall not be
unreasonably withheld, conditioned or delayed; and


 


(vi)           the occurrence of an Event
of Default under the Related Management Agreement.


 


(b)           Upon the occurrence of an Event of Default, the
non-defaulting party may, without prejudice to any other recourse at law or in
equity which it may have, give to the defaulting party notice (a “Final Notice”)
of the termination of this Agreement and upon the delivery of such Final Notice
to the defaulting party, this Agreement shall terminate.


 


7.2          Remedies of Owner. Upon the
occurrence of an Event of Default by Manager, Owner shall, in addition to the
right of termination set forth above, have the right to take such action as
shall be necessary to cure such default on behalf of Manager, and Manager shall
pay to Owner, within ten (10) business days following written demand by
Owner, such sums as Owner has incurred or is obligated to pay in order to cure
such default, together with interest thereon from the date of advancement by
Owner at a default rate equal to 5%  per
annum if such sum is not timely paid by Manager. Owner shall have no further
obligation to pay any management fee or other amounts due hereunder which would
otherwise accrue after the date of such termination and Manager shall remain
liable for any losses suffered as a result of Manager’s default and the
resulting termination of this Agreement.


 


7.3          Remedies of Manager. Upon the
occurrence of an Event of Default by Owner as specified in Section 7.1
hereof, Manager shall be entitled to terminate this Agreement, and upon any
such termination by Manager pursuant to this Section 7.3, Owner shall
continue to be obligated to pay and perform all of its obligations which have
accrued as of the date of termination, including accrued management fees and
other amounts due hereunder.


 


7.4          Casualty. In the event
that any of the Facilities is substantially or totally damaged or destroyed by
fire, tornado, windstorm, flood or other casualty during the Term of this
Agreement, such Facility shall be excluded from this Agreement for the period
of rebuilding or restoration; provided that Owner shall have no obligation to
restore such Facility. Owner shall be entitled to retain all insurance and
condemnation proceeds attributable to such occurrence.


 


7.5          Extension of the Term. The Initial
Term of this Agreement shall automatically be extended for consecutive
additional one (1) year periods (each, a “Subsequent Term”) upon written
notice by either party electing to extend such Term (an “Extension Notice”) not
less than twenty four (24) months prior to the expiration date of the then
current Term (the “Notice Date”).  Upon
receipt of an Extension Notice, the parties shall have up to one hundred (120)
days to reach a mutual agreement as to the amount of the management fee for
such Subsequent Term.  If no party
delivers an Extension Notice by the Notice Date or the parties are unable to
agree upon a management fee for the next Subsequent Term within one twenty (120
) days of receipt of an


 


9

















 


Extension Notice, then this
Agreement shall automatically expire at the end of the then current Term.


 


7.6          Actions Upon Termination or Expiration
of the Term; Delivery of Books and Records. Upon the expiration or
termination of this Agreement, each party hereto shall promptly pay to the
other, as soon as the same is reasonably determinable after the effective date
of such expiration or termination, any and all amounts (if any) required to be
paid to the other party hereto in accordance with the terms of this Agreement,
and upon such payments neither party hereto shall have any further claim or
right against the other except as may be otherwise expressly provided herein.
Further, upon the effective date of such expiration or termination of this
Agreement, Manager shall immediately deliver to Owner (or to any other party at
Owner’s direction) the originals of all books, permits, plans, records, leases,
licenses, contracts, correspondence and other documents pertaining to the
Facilities and their operation, as well as all equipment, supplies, keys,
locks, safety-combinations, and advertising and promotional materials
developed, maintained, kept or possessed by Manager with respect to the
Facilities.


 


ARTICLE VIII


 


INSURANCE


 


8.1          Insurance Coverage. Manager will
maintain and keep in force a comprehensive program of insurance insuring both
Owner and Manager against risks commonly insured against by the owners and
operators of comparable facilities, including without limitation (i) commercial
general liability insurance insuring against loss, damage or injury to property
or persons which might arise out of the occupancy, management, operation, or
maintenance of the Facilities with bodily injury coverage of not less than One
Million Dollars ($1,000,000) per incident and not less than Two Million Dollars
($2,000,000) in the aggregate, (ii) worker’s compensation insurance in
full compliance with all applicable state and federal laws and regulations
covering all employees of Manager performing work with respect to the
Facilities operations, and (iii) automobile liability insurance with
bodily injury limits of not less that One Million Dollars ($1,000,000) in the
aggregate. Manager and Owner shall agree annually upon the precise scope of
such program of insurance, including the types of coverage to be obtained, the
policy limits of such policies, the self-insured retention and deductible to be
maintained under any such policy and the identity of the insurance company(ies)
providing such coverage. Owner and Manager will both be named insureds as to
property insurance, commercial general liability insurance, automobile
liability insurance and UST insurance, but only Manager (as the employer) shall
be the named insured on the workers’ compensation insurance. Owner and Manager
agree that in the event any Facility sustains a loss by reason of fire or other
casualty which is covered by property insurance and such fire or casualty is
caused in whole or in part by the acts or omissions of Manager, its agents,
servants, or employees, then Owner agrees to look solely to its insurance
proceeds and Owner shall have no right of recovery against Manager or its
agents, servants or employees, and no third party shall have any right of
recovery against Manager, its agents, servants, or employees by way of
subrogation. Such subrogation provision between Manager and Owner shall be
disclosed to Owner’s insurer. This provision shall apply with respect to any
policies presently maintained or that may hereafter be acquired by Owner.  Manager shall provide a certificate to Owner
showing all requirements set forth in this section.


 


8.2          Subrogation and Indemnity Provisions.


 


(a)           Any insurance which is procured and maintained which in
any way is related to the Facilities or the authorized activities connected
therewith, is for the sole benefit of the party securing such insurance and
others named as insureds, and Manager and Owner hereby release the other from
all rights of recovery under or through subrogation or otherwise for any loss
or damage to the extent recovery is made from insurance.


 


(b)           Without limiting subsection (a) of this Section 8.2,
Owner and Manager hereby waive against the other any and all claims and demands
of whatsoever nature for damages, loss or injury to the other’s property in,
upon or about the Facilities, except for claims and demands arising out of
gross negligence or willful misconduct of Owner, Manager, or either of their
respective agents, employees, officers or contractors.


 


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(c)           Owner shall indemnify, defend and hold Manager and Manager’s
agents, officers and employees harmless from all claims, losses, costs, damages
or expenses resulting or arising from the failure by Owner to effect and
maintain any insurance coverage required herein to be maintained by Owner.


 


(d)           Manager shall indemnify, defend and hold Owner and Owner’s
agents, officers and employees harmless from all claims, losses, costs, damages
or expenses resulting or arising from the failure by Manager to effect and
maintain any insurance coverage required herein to be maintained by Manager.


 


ARTICLE IX


 


MISCELLANEOUS
PROVISIONS


 


9.1          Governing Law. This Agreement
shall be governed by and construed and interpreted in accordance with the laws
of the Commonwealth of Massachusetts.


 


9.2          Notices. Any notice or
communication hereunder must be in writing, and may be given by registered or
certified mail, or by personal delivery, regular mail, courier service,
facsimile transmission, electronic transmission or other commercially
reasonable means. If given by registered or certified mail, notice shall be
deemed to have been given and received on the earlier of actual receipt or
refusal of delivery or the third business day following the date on which a
registered or certified letter containing such notice, properly addressed, with
postage prepaid, is deposited in a postal receptacle regularly serviced by the
United States Postal Service. If given otherwise than by registered or
certified mail, such notice shall be deemed to have been given when delivered
to and received by the party to whom it is addressed. Such notices or
communications shall be given to the parties hereto at the addresses set forth beneath
the names of the respective parties on the signature page hereof. Any
party hereto may, at any time and from time to time, by giving not less than
ten (10) days’ prior written notice to the other party hereto, designate
any other address in substitution of the foregoing address to which such notice
or communication shall be given.


 


9.3          Severability. If any term,
covenant or condition of this Agreement or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term,
covenant or condition of this Agreement shall be valid and shall be enforced to
the fullest extent permitted by law.


 


9.4          No Joint Venture or Partnership. The
relationship between Owner and Manager under the terms of this Agreement shall
be that of independent parties, and notwithstanding anything to the contrary
set forth herein, Manager shall perform its duties and provide the services
contemplated by this Agreement as an independent contractor. Except as
expressly provided to the contrary in this Agreement, it is agreed that Owner
is concerned only with the result of the performance of such duties and
provision of such services and is not directing Manager as to particular means
and methods of performing such duties and providing such services. Nothing
contained in this Agreement shall be deemed to constitute a partnership, joint
venture or any other similar relationship. No personal liability shall accrue
hereunder against any individual, officer, director, shareholder,
representative or employee of Owner or Manager.


 


9.5          Dispute Resolution. Owner and
Manager hereby mutually agree that any dispute or claim in law or equity
arising out of this Agreement or any resulting transaction, including disputes
or claims involving the parties to this Agreement, their officers, agents, or
employees, shall be submitted to neutral, binding mediation. The parties agree
to act in good faith to participate in mediation, and to identify a mutually
acceptable mediator. If a mediator cannot be agreed upon by the parties, each
party shall designate a mediator and those mediators shall select a third
mediator who shall act as the neutral mediator, assisting the parties in
attempting to reach a resolution.  Such
mediator will render a final and binding decision on those unresolved items
which shall be binding upon the parties and shall be enforceable in any court
of competent jurisdiction.


 


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Both parties shall share the
cost of the dispute resolution process equally although attorneys and witnesses
or specialists are the direct responsibility of each party and their fees and
expenses shall be the responsibility of the individual parties.


 


9.6          Consequential Damages. Notwithstanding
anything to the contrary in this Agreement, each of Owner and Manager waive, to
the fullest extent permitted by law, the right to recover business disruption,
lost profits, incidental, punitive, special, indirect or consequential damages
arising from or related to this Agreement.


 


9.7          Confidentiality.  Manager and Owner each acknowledges and
agrees that any information constituting a trade secret or otherwise of a
proprietary, secret or confidential nature of or relating to each other’s
business (collectively, “Confidential Information”) acquired by either Manager
or Owner during the course of the Term of this Agreement is the exclusive
property of, and of great value to, Owner or Manager, as the case may be.  Each party agrees that without the prior
written permission of the other party, neither party shall divulge to any
person or entity (other than to officers, directors and employees of Owner and
Manager, or in connection with the proper business and affairs of Owner or
Manager), either during the Term or at any time thereafter, any Confidential
Information, unless and to the extent that said information becomes publicly
known (a) other than as a result of Manager’s or Owner’s gross negligence
or willful misconduct; or (b) as may be required by applicable law or in
connection with any investigation, suit or other proceeding before any court,
tribunal, arbitration proceeding or agency having competent jurisdiction
thereover, provided, however, that Manager and Owner each agrees to use its
best efforts to provide the affected party with adequate and timely written
notice so as to enable such party to seek a protective order or other
appropriate relief.


 


9.8          Modification. Any amendment,
modification, termination or release of this Agreement may be effected only by
a written instrument executed by Manager and Owner.


 


9.9          Total Agreement. This Agreement
is a total and complete integration of any and all undertakings existing
between Manager and Owner with respect to the management of the Facilities and
supersedes any prior oral or written agreements, promises or representations
between them concerning such subject matter.


 


9.10        Approvals and Consents. If any
provision hereof requires the approval or consent of Owner or Manager to any
act or omission, such approval or consent shall not be unreasonably withheld,
conditioned or delayed.


 


9.11        Successors and Assigns. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their permitted successors and assigns. Neither party may assign this Agreement
without obtaining the other party’s prior written consent; provided, however,
that either party may, without the other party’s consent, assign this Agreement
to any Affiliate.


 


[SIGNATURES APPEAR ON
FOLLOWING PAGE]


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Facilities Management Agreement as of the day and year first  above written.


 


	
   

  	
  OWNER:

  
	
   

  	
   

  
	
   

  	
  GLOBAL COMPANIES LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas J. Hollister

  
	
   

  	
  Name:

  	
  Thomas J. Hollister

  
	
   

  	
  Title:

  	
  Chief Operating Officer and Chief Financial Officer_

  
	
   

  	
   

  
	
   

  	
  800 South Street, Suite 200

  
	
   

  	
  Waltham, MA 02454

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telephone: (781) 398-4202

  
	
   

  	
  Facsimile: (781) 398-9202

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  800 South Street, Suite 200

  
	
   

  	
  Waltham, Massachusetts 02454

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Telephone: (781) 398-4211

  
	
   

  	
  Facsimile: (781) 398-9211

  
	
   

  	
   

  
	
   

  	
  MANAGER:

  
	
   

  	
   

  
	
   

  	
  ALLIANCE ENERGY LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew Slifka

  
	
   

  	
  Name:

  	
  Andrew Slifka

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  404 Wyman Street, Suite 425

  
	
   

  	
  Waltham, MA 02451

  
	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
  Telephone: (781) 674-7787

  
	
   

  	
  Facsimile: (781) 674-7799

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  404 Wyman Street, Suite 425

  
	
   

  	
  Waltham, MA 02451

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Telephone: (781) 402-8897

  
	
   

  	
  Facsimile: (781) 674-7799