Exhibit 10.1


 


FACILITIES
MANAGEMENT AGREEMENT


 


BETWEEN


 


GLOBAL
MONTELLO GROUP CORP.

(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 Montello Group Corp., a Delaware
corporation (“Owner”), and ALLIANCE ENERGY LLC, a Massachusetts limited
liability company (“Manager”).


 


WITNESSETH:


 


WHEREAS, Owner owns or expects to own (in fee or by
lease) and operate 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 “CORS
Facilities”);


 


WHEREAS, Owner owns and has leased to third-party
operators certain equipment located at those certain fuel and convenience store
facilities (together with the ancillary services in connection therewith)
described on Exhibit “A-2” attached hereto (as the same may be amended
from time to time, the “CODO Facilities”; together with the CORS 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 


 


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any similar federal, state
or local laws, statutes, ordinances, rules, decrees, orders or regulations.


 


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 Companies LLC 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 


 


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contracts for, sales or services in bulk or in
volume which Manager may obtain for discount or convenience in 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 


 


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be an Equal Opportunity
Employer.


 


(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.


 


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(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 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. Notwithstanding the
foregoing, Owner, with Manager’s assistance, shall maintain all UST
certification in its name. 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.


 


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(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 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.


 


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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 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 


 


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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 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, 


 


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as applicable, provided for
under the terms of this Agreement, to the extent the same materially and
adversely effects the non-defaulting party;


 


(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 


 


9

















 


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 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. Owner shall, maintain UST
insurance for all of the underground storage tanks maintained at the
Facilities.


 


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.


 


10

















 


(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.


 


(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 


 


11

















 


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. 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]


 


12

















 


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


 


	
   

  	
  OWNER:

  
	
   

  	
   

  
	
   

  	
  GLOBAL MONTELLO GROUP CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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