Exhibit 10(i)
SUPPLEMENTAL AGREEMENT TO AGREEMENT OF PURCHASE, SALE AND
ASSIGNMENT OF MARKETING ASSETS
THIS SUPPLEMENTAL AGREEMENT TO AGREEMENT OF PURCHASE, SALE AND ASSIGNMENT OF
MARKETING ASSETS (this "Supplemental Agreement") is made and entered into as of
this 1st of December, 1999, (the "Effective Date") between MOBIL OIL
CORPORATION, a New York corporation ("Seller"), and TOSCO CORPORATION, a Nevada
corporation ("Purchaser") upon the terms and conditions set forth herein. When
provisions herein apply to both or either Seller and Purchaser, they sometimes
are referred to as "Parties" or "Party."
RECITALS
Purchaser has executed an Agreement of Purchase, Sale and Assignment of
Marketing Assets (the "Agreement of Purchase and Sale"), wherein Purchaser
agreed to purchase certain assets of Seller in connection with Seller's retail
marketing operations in the District of Columbia, Virginia, Maryland, Delaware,
New Jersey and Pennsylvania (the "Identified Areas").
The Agreement of Purchase and Sale contemplated that Seller and Purchaser would
agree at a later date as to the form and content of certain Exhibits attached to
the Agreement of Purchase and Sale. Seller has preliminarily prepared the
Exhibits to be attached to the Agreement of Purchase and Sale and desires to
have Purchaser acknowledge the Exhibits prepared by Seller.
In addition, Exxon Corporation and Mobil Corporation have further negotiated the
Consent Decree and consequently certain provisions of the Agreement of Purchase
and Sale need to be supplemented in order to comply with the terms of the
Consent Decree.
NOW THEREFORE, in consideration of the Recitals and for other good and valuable
consideration, the receipt and sufficiency of which hereby are mutually
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
TERMS AND CONDITIONS
1. DEFINITIONS. All capitalized terms used in this Supplemental Agreement
without definition shall have the same meaning as set forth in the Agreement of
Purchase and Sale. From and after the date of this Supplemental Agreement, any
reference in the Agreement of Purchase and Sale to "this Agreement" shall refer
to the Agreement of Purchase and Sale, as supplemented by this Supplemental
Agreement.
2. EXHIBITS.
A. EXHIBITS TO AGREEMENT OF PURCHASE AND SALE. Attached to this
Supplemental Agreement are the following Exhibits to the Agreement of Purchase
and Sale: Exhibit "A" - Properties; Exhibit "B" - Fee & Lease Dealers; Exhibit
"C" - Contract Dealers, Loan Balances and Value of Seller-owned Equipment;
Exhibit "D" - Distributors Subject to Distributor Sales Agreements; Exhibit "E"
- - Distributors' Loan Balances; Exhibit "F" -Independent Contractor Agreements
and Ground Leases; Exhibit "O" - Pending and Threatened Litigation; and Exhibit
"Q" - OTR Franchises. The Parties agree that the foregoing Exhibits shall be
deemed attached to the Agreement of Purchase and Sale as if the same were set
forth in such agreement when executed.
B. CHANGES IN THE EXHIBITS. The Parties agree and acknowledge that the
Exhibits currently prepared by Seller represents Seller's best knowledge. The
Parties further acknowledge and agree that between the date of this Supplemental
Agreement and the Closing Date some of the Exhibits attached to the Agreement of
Purchase and Sale as described in Section 2(A) of this Supplemental Agreement
may change. The Parties agree that in the event the Exhibits are changed, then
the Purchase Price will be further adjusted pursuant to Subsection 5(B) of this
Supplemental Agreement.
3. NON-OPERATING PROPERTIES.
A. SUPPLEMENTAL PROPERTIES. The Parties acknowledge that there are
certain fee properties (the "Supplemental Fee Properties") and certain lease
properties (the "Supplemental Leased Properties") identified on Exhibit "I-A",
which are currently owned or leased by Seller and which are not operating
service stations, but which are intended to be used by Seller as a service
station property. The Supplemental Fee Properties and the Supplemental Leased
Properties are sometimes collectively referred in this Supplemental Agreement as
the "Supplemental Properties". The Parties agree that the definition of
Properties as used in the Agreement of Purchase and Sale shall be deemed to
include the Supplemental Properties from and after the date of this Supplemental
Agreement for all purposes under the Agreement of Purchase and Sale, as
supplemented by this Supplemental Agreement, except as set forth below. As of
the date of this Supplemental Agreement, all of the terms and provisions of the
Agreement of Purchase and Sale, including the representations and warranties, as
they relate to the Properties shall include the Supplemental Properties, except
that the following provisions of the Agreement of Purchase and Sale shall not
apply to the Supplemental Properties: Subsections 8.1.f., 8.1.1. and, except as
disclosed to Purchaser, 8.1.m. and Article XVIII.
B. CONTRACTS OF PURCHASE. The Parties acknowledge that Seller has
entered into certain contracts (the "Contracts of Purchase") identified on
Exhibit "I-B", pursuant to which Seller has the right to purchase fee title to
certain properties which Seller intends to use as service station properties in
accordance with the terms and conditions contained in the Contracts of Purchase.
The Parties agree that Seller's interests in the properties subject to the
Contracts of Purchase shall be sold, assigned, transferred or conveyed to
Purchaser under the terms and conditions of the Agreement of Purchase and Sale,
as supplemented by this Supplemental Agreement. The $20,000,000 of the Purchase
Price allocated to the Supplemental Properties, the Contracts of Purchase and
the Preliminary Term Leases as set forth in Section 5(A) does not include the
purchase price provided in each Contract of Purchase. In the event a Contract of
Purchase transaction has closed by the Closing Date, the amount paid by Seller
under such Contract of Purchase shall be credited to Seller at the Closing.
C. PRELIMINARY TERM LEASES. The Parties acknowledge that Seller has
entered into certain preliminary term leases (the "Preliminary Term Leases")
identified on Exhibit "I-C", pursuant to which Seller has preliminarily leased
certain properties which Seller intends to use as service station properties in
accordance with the terms and conditions contained in the Preliminary Term
Leases. The Parties agree that Seller's interests in the properties subject to
the Preliminary Term Leases shall be sold, transferred, assigned or conveyed to
Purchaser under the terms and conditions of the Agreement of Purchase and Sale,
as supplemented by this Supplemental Agreement.
D. PURCHASE OF SUPPLEMENTAL PROPERTIES AND TERMINAL PROPERTIES.
Purchaser desires to purchase the Supplemental Properties and Seller's interests
in the Contracts of Purchase and the Preliminary Term Leases, and all of
Seller's interests in the terminal located in Manassas, Virginia (the "Manassas
Terminal"). Seller has provided to Purchaser information with respect to the
Supplemental Properties, the Contracts of Purchaser and the Preliminary Term
Contracts. Purchaser agrees to review all such information no later than seven
days from the date of this Supplemental Agreement. Upon satisfactory review by
Purchaser of all information relating to the Manassas Terminal and Purchaser's
election to purchase same, Purchaser and Seller shall execute and deliver a
separate terminal sales agreement to be agreed upon in good faith by Purchaser
and Seller with respect to the Manassas Terminal within seven days of the date
Purchaser executes this Supplemental Agreement. In the event Purchaser, after
review of reasonably complete information provided to Purchaser by Seller,
determines it does not wish to acquire the Manassas Terminal, Purchaser shall so
inform Seller within seven days of the date of this Supplemental Agreement and
the Manassas Terminal will be deleted from the transaction and the Purchase
Price will be adjusted in accordance with Section 5(A). In the event Purchaser,
after review of reasonably complete information provided to Purchaser by Seller,
determines it does not wish to acquire the Supplemental Properties, the
Contracts of Purchase and the Preliminary Term Leases, it shall so inform Seller
within seven days of the date of this Supplemental Agreement. Upon receipt of
such notice, Seller may, in its sole discretion, elect either (i) to delete the
Supplemental Properties, the Contracts of Purchase and the Preliminary Term
Leases from the transaction in which case the Purchase Price will be adjusted
in accordance with Section 5(A), or (ii) to require Purchaser to acquire the
Supplemental Properties, the Contracts of Purchase and the Preliminary Term
Leases at fair market value, as determined by negotiations in good faith between
the parties or, failing agreement, as determined by an impartial appraisal, with
the Purchase Price being adjusted accordingly.
E. OTHER PROPERTIES. The Parties agree that only those non-operating
properties set forth in Exhibits "I-A", "I-B" and "I-C" shall be included in the
purchase and sale contemplated by the Agreement of Purchase and Sale, as
supplemented by this Supplemental Agreement and no other non-operating
properties shall be included unless Seller is required to divest any such
additional property pursuant to the Consent Decree, in which event the property
shall be included as part of the Agreement of Purchase and Sale, as supplemented
by this Supplemental Agreement and the Exhibits shall be changed in accordance
with Section 2(B).
4. TRANSFER, SALE AND ASSIGNMENT BY SELLER. In addition to the transfers
contemplated by Article I of the Agreement of Purchase and Sale, on the Closing
Date, Seller will assign to Purchaser, and Purchaser shall assume the assignment
of and accept Seller's obligations under (i) the Contracts of Purchase, (ii) the
Preliminary Term Leases, (iii) to the extent assignable and permitted by law,
all permits and permit applications for the construction of the service station
facilities at the properties which are the subject of the Contracts of Purchase
or the Preliminary Term Leases existing as of the date of this Supplemental
Agreement; (iv) the "Non-Petroleum Leases" described in Section 8 of this
Supplemental Agreement, together with any security deposits being held by Seller
under any such leases; and (v) the "Veeder Root Agreements" described in Section
9.
5. PURCHASE PRICE.
A. SUPPLEMENT TO PURCHASE PRICE. The Parties agree that the "Purchase
Price" as defined under the Agreement of Purchase and Sale shall be SIX HUNDRED
AND SIXTY MILLION DOLLARS ($660,000,000) from and after the date of this
Supplemental Agreement and for all purposes under the Agreement of Purchase and
Sale, as supplemented by this Supplemental Agreement, the Purchase Price shall
be as set forth in this Section 5. The Parties acknowledge and agree that Twenty
Million Dollars ($20,000,000) of the Purchase Price has been allocated to the
purchase by Purchaser of the Supplemental Properties, the Contracts of Purchase
and the Preliminary Term Leases, subject to further review by Purchaser of the
information supplied by Seller and that Five Million Dollars ($5,000,000) has
been allocated to the purchase by Purchaser of the Manassas Terminal, subject to
further review by Purchaser of the information supplied by Seller. In the event
that Purchaser elects not to purchase the Manassas Terminal, the Purchase Price
will be reduced by Five Million Dollars ($5,000,000). In the event that Seller,
after being notified by Purchaser that Purchaser desires not to purchase the
Supplemental Properties, the Contracts of Purchase and the Preliminary Term
Leases, elects to delete same from the transaction, then the Purchase Price will
be reduced by Twenty Million Dollars ($20,000,000).
B. ADJUSTMENTS TO PURCHASE PRICE. In the event that at any time prior
to the Closing, Seller and/or Purchaser discover that there is a change in the
Exhibits due to (i) identification of additional supplemental properties which
were operating service station properties in the Identified Areas on the
Effective Date and which were intended to be sold to Purchaser under the
Agreement of Purchase and Sale or (ii) discovery that certain properties listed
on the Exhibits were not operating service station properties in the Identified
Areas on the Effective Date, then such additional supplemental properties shall
be included or excluded, as the case may be, in the transactions contemplated by
the Agreement of Purchase and Sale, as supplemented by this Supplemental
Agreement and the Purchase Price shall be adjusted by agreement of the Parties
based on the fair market value of the properties being included or excluded, as
determined by negotiations in good faith between the Parties or, failing
agreement, as determined by an impartial appraisal.
6. BRANDED MARKETER AGREEMENT. The first paragraph and the table immediately
following the first paragraph of sub-section 3(b) of the Motor Fuel Product
Schedule to the Branded Marketer Agreement, Exhibit H of the Agreement of
Purchase and Sale, are amended to read as follows:
"(b) Beginning on the fifth anniversary of the effective date of the
Agreement and thereafter, the price to be paid by Buyer shall be (i) the same
price paid to Buyer by Seller for the motor fuel pursuant to the Purchase
Agreement, plus (ii) subject to adjustment as provided in section 3(c) below,
the Supplemental Charge, plus (iii) an additional fee shown in the table below
(hereinafter the "Additional Fee"). The Additional Fee for sales made during any
contract year is shown to the right of the corresponding contract year in the
table below.
"CONTRACT YEAR ADDITIONAL FEE PER GALLON
"6th *
"7th *
"8th *
"9th *
"10th *
The following sentence is added as a new final paragraph to
sub-section 3(c) of the Motor Fuel Product Schedule to the Branded Marketer
Agreement, Exhibit H of the Agreement:
"Notwithstanding anything in this Agreement to the contrary, if the
annual adjustment to the Supplemental Charge would raise the sum of
the Supplemental Charge plus the Additional Fee, if any, to more than
*_____________, then the sum of the adjusted
Supplemental Charge plus the Additional Fee, if any, shall be deemed
to be * _________________."
______
* This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission
7. SUPPLEMENTAL CLOSING CONDITIONS.
A. SUPPLEMENTAL CLOSING DOCUMENTS. At the Closing, Seller shall
deliver the following supplemental documents:
(1) Assignments of the Contracts of Purchase, Assignments of the
Non-Petroleum Leases, Assignments of the Preliminary Term Leases
and Assignment of the "Veeder Root Agreements" (as defined in
Section 9), all in form and substance satisfactory to Purchaser
and Seller; and
(2) To the extent obtained by Seller prior to the closing Date,
deliver to the Title Company the written consent of any owner or
lessor, if the assignment of any Contract of Purchase or
Preliminary Term Lease, as the case may be requires such consent,
such written consent to be in form and substance satisfactory to
the Title Company and Purchaser.
B. SUPPLEMENTAL APPORTIONMENTS. All rents and other charges due or
payable by Seller under the leases covering the Leased Properties or under the
Preliminary Term Leases and all rents and other charges due and payable to
Seller from any tenant under any Non-Petroleum Lease will be prorated as of the
Closing Date.
12. CONDITIONS PRECEDENT. The first sentence of Section 11.1 of the Agreement
of Purchase and Sale is hereby deleted and the following is inserted in lieu
thereof: "Purchaser understands and acknowledges that this Agreement and the
consummation of the transactions contemplated by this Agreement are subject to
and conditioned upon Seller obtaining approval from the FTC of this Agreement,
the transactions contemplated by this Agreement and the Purchaser pursuant to
the Consent Decree and the favorable exercise of the approval rights of the
Attorney Generals of the States of Pennsylvania, New Jersey, Maryland, Delaware,
Virginia and the District of Columbia pursuant to the consent decree executed on
behalf of each of those States and the District of Columbia". In addition, as a
supplement to the conditions precedent set forth in Article XI of the Agreement
of Purchase and Sale, Purchaser acknowledges and understands that the Agreement
of Purchase and Sale, as supplemented by this Supplemental Agreement, and the
consummation of the transactions contemplated by the Agreement of Purchase and
Sale, as supplemented by this Supplemental Agreement, are subject to (i) the
final acceptance of the Consent Decree and (ii) no injunction having been issued
by a court of competent jurisdiction and remaining in effect at the time of the
Closing prohibiting the transactions contemplated by the Agreement of Purchase
and Sale, as supplemented by this Supplemental Agreement.
13. TANK TESTING. As a supplemental to Section 7.2 of the Agreement of Purchase
and Sale, Purchaser acknowledges that Seller has installed at certain Properties
Veeder Root systems or other equivalent systems to monitor the underground tanks
and lines at such Properties and that Seller desires to deliver to Purchaser the
results of such monitoring systems in lieu of the tank testing described in
Section 7.2 of the Agreement of Purchase and Sale. Purchaser and Seller agree to
discuss in good faith whether the monitoring systems described above are
sufficient for determining the tightness of the tanks and lines and whether the
tightness tests described in such Section 7.2 are necessary.
14. RIGHT OF FIRST REFUSAL. The Parties acknowledge that one of the Supplemental
Properties is currently subject to a right of first refusal granted to the
tenant at said property. Unless such right is waived by the tenant, the Parties
shall execute a separate purchase agreement for such Supplemental Property
within ten days after the date of this Supplemental Agreement and thereafter,
Seller shall offer the tenant a right of first refusal to purchase the
Supplemental Property. In the event the tenant exercises the right of first
refusal, the Purchase Price shall be adjusted accordingly.
15. ROLLING STOCK. Seller shall offer to sell to Purchaser the rolling stock
used to serve the retail stations in the Identified Areas as set forth in
information previously provided to Purchaser and in the event Purchaser elects
to purchase the rolling stock and Seller accepts Purchaser's offer, the Purchase
Price shall be adjusted accordingly.
16. MISCELLANEOUS.
A. CONSTRUCTION. Words of any gender used in this Supplemental
Agreement shall be construed to include any other gender, and words in the
singular number shall include the plural, and vice versa, unless the context
requires otherwise.
B. CAPTIONS. The captions used in connection with the Articles and
Sections of this Supplemental Agreement are for convenience only and shall not
be deemed to enlarge, limit or otherwise modify the meaning or interpretation of
the language of this Supplemental Agreement. Any references to "Sections",
"Subsections" and "Exhibits" are to Sections, Subsections, Exhibits, Riders and
Addenda of this Supplemental Agreement.
C. SURVIVAL. The provisions of Sections 3,4,5 and 9 shall survive the
Closing of the transaction under this Supplemental Agreement and shall not be
deemed to have merged therewith. All other provisions hereof not included or
incorporated in any document to be executed and delivered on the Closing Date
shall not survive the Closing.
D. COUNTERPARTS. This Supplemental Agreement may be executed by the
Parties in counterparts, each of which shall be deemed an original, but such
counterparts together shall constitute one and the same instrument.
E. GOVERNING LAW. This Supplemental Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to its rules on the conflicts of law. The Parties hereto irrevocably
submit to the exclusive jurisdiction of the United States District for the
Southern District of New York for all purposes under this Agreement, except for
those matters over which said court does not have subject matter jurisdiction,
in which case the Parties irrevocably submit to the exclusive jurisdiction of
the Supreme Court of New York County, New York.
F. AGREEMENT OF PURCHASE AND SALE. Notwithstanding the duplication in
this Supplemental Agreement of any of the terms and provisions of Article XXII
of the Agreement of Purchase and Sale, all of the terms and provisions of
Article XXII of the Agreement and Sale shall be deemed incorporated into this
Supplemental Agreement to the extent applicable as if the same were set forth in
this Supplemental Agreement in its entirety. Except as supplemented by the terms
and provisions of this Supplemental Agreement, the terms and provisions of the
Agreement of Purchase and Sale shall remain in full force and effect.
IN WITNESS WHEREOF, this Supplemental Agreement has been executed by Seller and
Purchaser on the dates set forth below.
MOBIL OIL CORPORATION TOSCO CORPORATION
a New York corporation a Nevada corporation
By:_______________________ By:___________________
Name:_____________________ Name:_________________
Title:____________________ Title:________________
Date:_____________________ Date:_________________
AGREEMENT OF PURCHASE, SALE AND ASSIGNMENT OF MARKETING ASSETS
THIS AGREEMENT OF PURCHASE, SALE AND ASSIGNMENT OF MARKETING ASSETS (this
"Agreement") is made and entered into as of this 1st of December, 1999, (the
"Effective Date") between MOBIL OIL CORPORATION, a New York corporation
("Seller"), and TOSCO CORPORATION, a Nevada corporation ("Purchaser") upon the
terms and conditions set forth herein. When provisions herein apply to both or
either Seller and Purchaser, they sometimes are referred to as "Parties" or
"Party."
RECITALS
Seller currently markets its branded fuel products in the District of Columbia,
Virginia, Maryland, Delaware, New Jersey and Pennsylvania (the "Identified
States").
In connection with Seller's retail marketing operations, Seller owns in fee
certain operating service stations and leases certain other operating service
station properties in the Identified States, all as more particularly described
in Exhibit "A" (the "Properties"). The Properties consist of fee properties (the
"Fee Properties") and leased properties (the "Leased Properties"). Each of the
Properties is individually referred to in this Agreement as a "Property".
Some of the operating service stations on the Properties are subject to a
"franchise relationship," as that term is defined in the Petroleum Marketing
Practices Act, 15 U.S.C., Section 2801 et seq. ("PMPA"), pursuant to lease or
sublease agreements, franchise agreements, motor fuels sales agreements and
other agreements constituting the franchise relationship (collectively, the "Fee
& Lease Dealer Agreements") entered into between Seller and the dealers on the
Properties listed on Exhibit "B" (the "Fee & Lease Dealers"). Those Properties
subject to Fee & Lease Dealer Agreements are noted on Exhibit "A" (sometimes
referred to herein as the "Fee & Lease Dealer Properties"). The remainder of the
operating service stations on the Properties are company operated stations
(sometimes referred to as the "Company Operated Properties") and are similarly
noted on Exhibit "A".
In addition, as part of is marketing operations in the Identified States, Seller
has entered into various motor fuel supply, franchise and other agreements
constituting the franchise relationship (collectively, the "Contract Dealer
Agreements") with the contract dealers listed on Exhibit "C" ("Contract
Dealers"). Seller has also entered into various distributor agreements and other
agreements constituting the distributor franchise relationship (collectively,
the "Distributor Sales Agreements") between Seller and the distributors listed
on Exhibit "D" (the "Distributors"). The Fee & Lease Dealer Agreements, the
Contract Dealer Agreements and the Distributor Sales Agreements are sometimes
collectively referred to as the "PMPA Franchise Agreements").
Pursuant to a consent decree entered into or to be entered into with the U.S.
Federal Trade Commission ("FTC") in connection with the merger of Exxon
Corporation and Mobil Corporation, (the "Consent Decree"), Seller has agreed to
divest certain assets, including certain contract rights, associated with its
marketing operations in the Identified States and Purchaser is willing to
purchase the same from Seller in accordance with the terms of this Agreement.
This offer to purchase the Properties and other assets and the
assignments herein described may remain open and in full force and effect for a
period in excess of 60 days. The offer is initially binding and irrevocable and
able to be accepted until December 3, 1999 or until five business days after
Exxon Corporation and Mobil Corporation receive consent from the Federal Trade
Commission to their proposed merger, whichever is sooner. If Tosco is selected
as the proposed Purchaser, the offer shall remain open and in full force and
effect for as long as reasonably necessary to successfully complete the buyer
approval process.
NOW THEREFORE, in consideration of the Recitals and for other good and valuable
consideration, the receipt and sufficiency of which hereby are mutually
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
TERMS AND CONDITIONS
ARTICLE I
TRANSFER, SALE AND ASSIGNMENT BY SELLER
1.1 TRANSFER OF FEE PROPERTIES AND LEASED PROPERTIES; EQUIPMENT AND PERSONAL
PROPERTY.
(A). Subject to the provisions of this Agreement, (i) Seller agrees to
sell and convey the Fee Properties to Purchaser and Purchaser
agrees to purchase and pay for the Fee Properties, and (ii)
Seller also agrees to assign its leasehold interests in the
Leased Properties to Purchaser and Purchaser agrees to purchase
and pay for such leasehold interests.
(B). Seller's conveyance and assignment of its interests in the
Properties shall include Seller's interest in: (i) all easements
and rights appurtenant to the Properties, all buildings and
improvements located thereon, and to the extent assignable by
Seller and in effect on the Closing Date (as defined in Section
6.1), all associated licenses, permits, and other forms of
governmental consents, (ii) all of Seller's personal property
located on the Properties as of the Effective Date, except for
some proprietary equipment and software containing proprietary
information; and (iii) subject to the terms of the Distributor
Agreement, the right to use Seller's identification signs,
trademarks, and other trade indicia. The real and personal
property referred to in this Agreement shall not include any
accounts receivable, except those associated with the Contract
Dealer Agreements or the Distributor Sales Agreements referred to
in Sections 1.3 and 1.4 respectively, notes receivable, or cash
assets, all of which property, to the extent owned by Seller,
shall be removed by Seller from the Properties no later than the
Closing Date. Any environmental monitoring wells and remediation
equipment located on the Properties will remain Seller's property
and will not be transferred to Purchaser.
1.2 ASSIGNMENT OF FEE & LEASE DEALER AGREEMENTS. On the Closing Date, Seller
will assign to Purchaser, and Purchaser shall accept the assignment of and
assume Seller's obligations under the Fee & Lease Dealer agreements with respect
to the Fee & Lease Dealers Properties.
1.3 ASSIGNMENT OF CONTRACT DEALER AGREEMENTS. On the Closing Date, Seller also
will (i) assign to Purchaser the Contract Dealer Agreements with the Contract
Dealers, and (ii) transfer to Purchaser any Seller owned equipment and tanks on
the Contract Dealers' properties and Purchaser shall accept the assignment of
and assume Seller's obligations under the Contract Dealer Agreements and shall
purchase and pay for any Seller owned equipment. On the Closing Date, Seller
will assign to Purchaser all loan agreements and/or reimbursement agreements
between Seller and the Contract Dealers, together with any mortgages and
security interests securing such loans. The current balances of the Contract
Dealers' loans and/or reimbursement agreements and the value of any Seller-owned
equipment and tanks on the Contract Dealer properties are set forth on Exhibit
"C". The Parties acknowledge and agree that the Purchase Price set forth in
Section 3.1 includes payment for certain unamortized balances due Seller by such
Contract Dealers. At least seven (7) days before the Closing Date, Seller will
notify Purchaser of the amounts of the unamortized balances owed by each
Contract Dealer.
1.4 ASSIGNMENT OF DISTRIBUTOR SALES AGREEMENTS. On the Closing Date, Seller will
assign to Purchaser, and Purchaser shall assume the assignment of and accept
Seller's obligations under, the Distributor Sales Agreements. On the Closing
Date, Seller will assign to Purchaser, and Purchaser shall assume the assignment
of and accept the obligations of Seller under, any loan agreements and/or
reimbursement agreements between Seller and the Distributors, together with any
mortgages and security interests securing such loans. The current balances of
the Distributors' loans and/or reimbursement agreements are set forth on Exhibit
"E". The Parties acknowledge and agree that the Purchase Price set forth in
Section 3.1 includes payment for certain unamortized balances due Seller by such
Distributors. At least seven (7) days before the Closing Date, Seller will
notify Purchaser of the amounts of the unamortized balances owed by each
Distributor.
1.5 SALE OF INVENTORY. Seller shall sell, deliver and transfer to Purchaser at
the Closing, and Purchaser shall purchase and pay for, all inventories: of (i)
refined petroleum products in bulk storage owned by Seller on any Property on
the Closing Date; and (ii) convenience store merchandise for resale (not to
include branded lubricants, tires, batteries and accessories) owned by Seller on
any Property on the Closing Date. Seller shall be responsible for determining
the quantities of refined petroleum products to be transferred by it as of the
Closing Date, and Seller shall determine the quantities of all inventories of
convenience store resale merchandise to be sold to Purchaser on the Closing
Date. The Parties acknowledge that the Purchase Price set forth in Section 3.1
includes payment for all inventories of refined petroleum products and
convenience store merchandise and at the Closing, the Parties shall agree on the
value of such inventory.
1.6 ASSIGNMENT OF PERMITS. On the Closing Date, to the extent assignable or
permitted by law, Seller will assign and Purchaser shall accept all operating
permits, including beer and wine licenses, where applicable, at the Company
Operated Properties.
1.7 CONTRACT DEALER FINANCINGS. Purchaser acknowledges that certain Contract
Dealers identified as Class of Trade (the "COT Dealers") accounts on Exhibit "B"
have obtained secured loans (the "COT Loans") through Citicorp, North America,
Inc. ("Citicorp") pursuant to certain line of credit and security agreements
with the between Citicorp and the COT Dealers, together with all other related
agreements and supplements thereto (collectively referred to as the "Credit
Agreements"). Seller has, to a limited extent, guaranteed certain obligations of
the COT Dealers under the Credit Agreements. Notwithstanding the assignment of
the Contract Dealer Agreements to Purchaser, Seller will retain its indemnity
and guaranty obligations in connection with the Credit Agreements. If any COT
Dealer fails to make payment on any COT Loan which is secured by real property
(service station) collateral, Seller may choose to make such COT Dealer's
payment to Citicorp to avoid or cure a default. If Citicorp demands that Seller,
as guarantor, satisfy any outstanding loan balance, Seller will pay the
outstanding balance. If Seller makes any payment to Citicorp, either upon
default by any COT Dealer or after demand by Citicorp, Purchaser will reimburse
Seller for any payments made by Seller to Citicorp within thirty (30) days of
demand. Upon reimbursement by Purchaser, Seller will request the mortgage
encumbering the COT Dealer's real property and all other security documents be
assigned by Citicorp to Purchaser, and Purchaser shall assume all of Seller's
rights pursuant to the Credit Agreement relating to the respective COT Dealer
and as the mortgage holder. Thereafter, Purchaser may elect, at its sole
discretion, to foreclose on the mortgage, terminate the Borrower's dealer
contract, and force the sale of the service station, among other options.
1.8 INDEPENDENT CONTRACTOR AGREEMENTS AND GROUND LEASES. On the Closing Date,
Seller will assign to Purchaser, and Purchaser shall assume the assignment of
and accept Seller's obligations under, Seller's Independent Contractor
Agreements and ground leases for motor fuel facilities at the properties listed
on Exhibit "F".
1.9 ASSIGNMENT OF OPTIONS TO PURCHASE AND RIGHTS OF FIRST REFUSAL. To the
extent that Seller is the holder of any preferential right to purchase any of
the Properties, all such rights will be assigned to Purchaser at the Closing.
1.10 DISTRIBUTOR FINANCINGS. Purchaser acknowledges that certain Distributors
identified on Exhibit "D" (the "Peg Mac Distributors") have obtained secured
loans (the "Distributor Loans") through Peg Managers Acceptance Corp. ("Peg
Mac") pursuant to certain loan and security agreements with the between Peg Mac
and the Peg Mac Distributors, together with all other related agreements and
supplements thereto (collectively referred to as the "Loan Agreements"). Seller
has, to a limited extent, guaranteed certain obligations of the Peg Mac
Distributors under the Loan Agreements. Notwithstanding the assignment of the
Distributor Sales Agreements to Purchaser, Seller will retain its indemnity and
guaranty obligations in connection with the Loan Agreements. If any Peg Mac
Distributor fails to make payment on any Distributor Loan which is secured by
real property collateral, Seller may choose to make such Peg Mac Distributors'
payment to Peg Mac to avoid or cure a default. If Peg Mac demands that Seller,
as guarantor, satisfy any outstanding loan balance, Seller will pay the
outstanding balance. If Seller makes any payment to Peg Mac, either upon default
by any Peg Mac Distributor or after demand by Peg Mac, Purchaser will reimburse
Seller for any payments made by Seller to Peg Mac within thirty (30) days of
demand. Upon reimbursement by Purchaser, Seller will request the mortgage
encumbering the Peg Mac Distributor's real property and all other security
documents be assigned by Peg Mac to Purchaser, and Purchaser shall assume all of
Seller's rights pursuant to the Loan Agreement relating to the respective Peg
Mac Distributor and as the mortgage holder. Thereafter, Purchaser may elect, at
its sole discretion, to foreclose on the mortgage, terminate the Distributor's
Distributor Sales Agreement, and force the sale of the service station, among
other options.
1.11 ASSIGNMENT OF BRAND PROGRAM AND SERVICE AGREEMENTS. On the Closing Date,
Seller will assign to Purchaser, and Purchaser shall assume the assignment of
and accept Seller's obligations under, all rent abatement agreements, imaging
rebate agreements and other brand program and service agreements with the Fee &
Lease Dealers, the Contract Dealers and the Distributors, as applicable.
ARTICLE II
SUPPLY, DISTRIBUTION AND OTHER AGREEMENTS
2.1 SUPPLY AGREEMENT. At least forty-five (45) days prior to the Closing Date,
Purchaser and Seller will execute a supply agreement in the form of Exhibit "G"
(the "Supply Agreement"), whereby Seller will purchase from Purchaser certain
unbranded fuels products. Purchaser and Seller agree that Exhibit "G" contains
all of the material and significant terms of the Supply Agreement and that prior
to the execution of the Supply Agreement, Seller and Purchaser shall agree in
good faith on certain additional administrative provisions and/or addenda which
are necessary to activate the Supply Agreement and such provisions or addenda
shall become part of the Supply Agreement.
2.2 BRANDED MARKETER AMENDMENT. At least forty-five (45) days prior to the
Closing Date, Seller and Purchaser will execute a branded marketer agreement in
the form of Exhibit "H" (the "Branded Marketer Agreement"). Purchaser and Seller
agree that Exhibit "H" contains all of the material and significant terms of the
Supply Agreement and that prior to the execution of the Branded Marketer
Agreement, Seller and Purchaser shall agree in good faith on certain additional
administrative provisions and/or addenda which are necessary to activate the
Branded Marketer Agreement and such provisions or addenda shall become part of
the Branded Marketer Agreement.
2.3 SERVICES AGREEMENT. For a period of no more than six (6) months from the
Closing Date, Seller will cooperate with Purchaser in providing, if necessary
and upon request, services such as motor fuel order and dispatch services, in
order to allow Purchaser adequate time to implement its own order and dispatch
services. Such services shall consist of the same services, and shall be
performed by Seller in the same manner, as currently provided for Seller's own
use. The Parties shall agree as to the compensation and the manner of payment
for any such services pursuant to the terms of a service agreement to be
executed by Seller and Purchaser at Closing.
ARTICLE III
PURCHASE PRICE
3.1 Amount. The purchase price to be paid by Purchaser for the transfer, sale
and assignment by Seller of the Properties, the Fee & Lease Dealer Agreements,
the Contract Dealer Agreements, the Distributor Sales Agreements and all other
assets, contract rights and personal property described in Article I is
_______________* ("Purchase Price"). On the Closing Date, Purchaser shall pay
the Purchase Price by wire transfer of immediately available funds to the
account designated by Seller or its assignee. The Purchase Price includes the
inventory of refined petroleum products and convenience store merchandise
referred to in Section 1.5, any construction and zoning permit, the unamortized
balances of loans and/or reimbursement agreements due Seller by the Contract
Dealers referred to in Section 1.3, the unamortized balances of loans and
reimbursement agreements due Seller by the Distributors referred to in Section
1.4 and any Seller-owned equipment and tanks on the Contract Dealer properties.
3.2 EARNEST MONEY DEPOSIT. Within five (5) days after Seller provides Purchaser
notice that Seller desires to accept Purchaser's offer contained in this
Agreement, Purchaser will deliver to the Title Company (as defined in Section
5.2) an irrevocable letter of credit (or similar instrument acceptable to
Seller) drawn on a bank acceptable to Seller and in form and substance
satisfactory to Seller, payable to Seller, in the amount of _____________*,
representing an earnest money deposit equal to five percent (5%) of the Purchase
Price (the "Earnest Money Deposit") as consideration for this Agreement. The
Earnest Money Deposit will be deposited with the Title Company pursuant to an
escrow agreement among the Title Company, Seller and Purchaser. The escrow
agreement will provide that the letter of credit may be drawn upon by Seller
upon certification to the Title Company of Purchaser's default under this
Agreement. Seller's notice of its desire to accept this Agreement shall not be
binding on Seller unless and until Purchaser delivers the Earnest Money Deposit
to Seller and Seller executes and delivers this Agreement.
--------------------------
* Note: If bid is accepted for both packages of assets, the aggregate price to
be paid is ___* million and individual packages must be increased to include
the premium of $40 million for both packages. This information is
confidential and has been omitted and separately filed with the Securities
and Exchange Commission.
3.3 VALUATION. The Parties agree that any property valuations established by the
Parties for the Properties are for purposes of (i) establishing an insured
amount for the title insurance commitments and policies; (ii) preparing the
Closing statements and escrow instructions; (iii) preparing affidavits of value
and transfer tax returns; and (iv) calculating recording fees and transfer
taxes, if applicable. Such property valuations are not established necessarily
for tax purposes or for financial or accounting ("book") purposes.
ARTICLE IV
PMPA COMPLIANCE
4.1 ASSIGNMENT AND ASSUMPTION BY PURCHASER. Seller will assign to
Purchaser at the Closing the PMPA Franchise Agreements with each of its existing
Fee & Lease Dealers, Contract Dealers and Distributors identified on Exhibits
"B", "C" and "D". Purchaser will assume all of Seller's rights and obligations
under the PMPA Franchise Agreements and under the PMPA and any other applicable
law, as the same relate to the PMPA Franchise Agreements.
4.2 SELLER'S PMPA INDEMNIFICATION. Seller shall indemnify and hold Purchaser,
its affiliates, agents and employees harmless from and against each and every
loss, cost, claim, obligation, damage, liability, payment, fine, penalty cause
of action, judgment (including expert witness fees and attorneys' fees awarded
to any franchisees as part of a judgment), lien or expense, including, but not
limited to, reasonable attorneys' fees and other litigation expense (a "Claim")
to the extent that any such Claim seeks to invalidate or claim the invalidity of
Seller's assignment of its franchise agreements to Purchaser, unless such Claim
is based on any act or omission by Purchaser occurring after the Closing Date.
4.3 PURCHASER'S OBLIGATIONS AFTER CLOSING. At an appropriate time prior to the
stated expiration date of each of the PMPA Franchise Agreements assigned by
Seller to Purchaser, Purchaser will, in good faith and in the normal course of
business, offer to each of the franchisees agreements for the supply of branded
motor fuel, unless such franchisee previously has been properly terminated or
nonrenewed for any reason permitted by the PMPA or properly nonrenewed pursuant
to 15 USC 2802(b)(3)(A). Franchise agreements offered by Purchaser to the
franchisees referenced hereunder shall be offered in accordance with PMPA and
shall comply in all respects with all applicable provisions of the PMPA and any
applicable state law.
4.4 PURCHASER'S PMPA INDEMNIFICATION. Purchaser shall indemnify and hold Seller,
its affiliates, agents and employees harmless from and against each and every
Claim of any kind or character which result front, arise out of, or are in any
way related to (i) any termination or nonrenewal by Purchaser of any PMPA
Franchise Agreements assigned by Seller to Purchaser, (ii) Purchaser's offer of
franchise agreements as required in Section 4.3, (iii) Purchaser's failure to
offer franchise agreements as required in Section 4.3, (iv) any claims or causes
of action by any franchisee concerning the terms and conditions of franchise
agreements offered by Purchaser or any action taken by Purchaser, specifically
including any termination or nonrenewal action, under or pursuant to said
franchise agreements, (iv) Purchaser's failure to fulfill its obligations under
this Agreement or the PMPA, and (v) Purchaser's failure to fullfill any
obligations contained in the PMPA Franchise Agreements assigned to Purchaser by
Seller.
4.5 LEGAL FEES. In any lawsuit brought by any franchisee, each Party shall bear
its own attorneys' fees and other costs of defense incurred in such action,
except as otherwise provided herein.
ARTICLE V
SURVEY AND TITLE MATTERS
5.1 SURVEYS. Purchaser shall have the option, at Purchaser's expense, to cause
to be prepared before the Closing Date a current ALTA land title survey
("Survey") of each Property, prepared by a duly licensed land surveyor and
registered professional engineer satisfactory to the Title Company and to
Seller. Upon completion of any Survey, there shall be delivered to Purchaser and
Seller three (3) sets each of the Survey Plat and to the Title Company one (1)
set of the Survey plat. The Survey, if prepared for any Property, will be
delivered to Seller and the Title Company within thirty (30) days after the
Effective Date. The Survey for any Property will show fences, easements,
rights-of-way and other encumbrances or encroachments on or adjacent to the
Property, including all of the title matters shown on the Title Commitments
provided for in Section 5.2, and will set forth the area of the Property in
square feet, together with a legal description thereof. In addition, the
surveyor shall certify the accuracy of said Survey to the Title Company in such
form as the Title Company requires for purposes of issuing the ALTA owner's or
leasehold policy of title insurance Provided for in Section 5.3.
5.2. TITLE COMMITMENTS AND PERMITTED ENCUMBRANCES. Within thirty (30) days after
the Effective Date or within thirty (30) days after receipt of a Survey if a
Survey is required to obtain a current title commitment, Seller will, at
Seller's expense, cause to be obtained a current title commitment for an
American Land Title Association ("ALTA") Form B owner's or leasehold policy of
title insurance on each Property ("Title Commitment"), issued through First
American Title Insurance Company, (the "Title Company") setting forth the state
of title of each Property and all liens, encumbrances and matters of record
(and, if Purchaser obtains Surveys, all facts and conditions shown on the
Surveys of each Property), including easements, restrictions, rights-of-way,
covenants, conditions and reservations, if any, affecting such Property,
together with legible copies of the recorded instruments relating to such title
matters and exceptions. Purchaser will obtain at its expense any mortgagee title
commitments and policies required by it in connection with the transaction. Upon
completion of each Title Commitment, there shall be delivered to Purchaser two
(2) copies thereof. Purchaser shall have thirty (30) days after its receipt of
the Title Commitment and the Survey, if a Survey has been obtained by Purchaser,
for each Property (including copies of the recorded instruments affecting title
to such Property) within which to review such documents and to notify Seller in
writing of any title matters reflected in the Title Commitment (or in the
Survey, if a Survey has been obtained by Purchaser) which would materially
restrict or adversely affect the use of the Property by Purchaser for retail
motor fuel sales as it currently exists, including any other current use on the
Property ("Title and Survey Objections"). Purchaser shall not object to minor or
immaterial title and survey matters which do not or will not interfere with, or
affect to a material extent, the operation or use of the Property as described
in the preceding sentence.
Within thirty (30) days after receipt of Purchaser's notice of Title
and Survey Objections, Seller shall make every reasonable effort to cure such
Title and Survey Objections and to satisfy the requirements of the Title
Company. If, for any reason, Seller is unable or unwilling, within said time, to
cure such Title and Survey Objections to the satisfaction of Purchaser, Seller
shall so notify Purchaser in writing. Within five (5) days after receiving such
notice Purchaser may, at Purchaser's option, either waive such uncured Title and
Survey Objections and proceed with the transaction contemplated by this
Agreement in accordance with the remaining terms and provisions hereof, seek to
reach agreement with Seller concerning the resolution of the uncured Title and
Survey Objections or execute on the Closing Date the Hold Harmless and Indemnity
Agreement attached as Exhibit "I". All title matters in the Title Commitments
which are not Title and Survey Objections shall become "Permitted Encumbrances."
5.3. OWNER OR LEASEHOLD POLICIES OF TITLE INSURANCE. At Closing, Seller shall
obtain as to each Property being conveyed and transferred by Seller, at Seller's
expense, the usual form of ALTA Form B Owner or Leasehold Policy of Title
Insurance, issued by the Title company in the amount of such Property's
valuation as agreed by the Parties, and insuring marketable fee simple or
leasehold title to such Property as being vested in Purchaser, subject only to
the Permitted Encumbrances and such policy's standard printed exceptions;
provided, however, that any such policy may provide, at Purchaser's option and
expense, "extended coverage" as follows:
a. the policy's exception as to restrictive covenants shall be
endorsed "None of Record";
b. the boundary and survey exception shall be limited to "shortages
in area";
c. the exception as to taxes shall be limited to the year of Closing
and shall be endorsed "Not Yet Due and Payable" and shall except
taxes resulting from subsequent assessments for years or portions
thereof prior to the Closing Date due to change in land usage or
ownership; and
d. the exception as to rights of parties in possession shall be
deleted.
5.4 CONVEYANCE OF TITLE; ASSIGNMENT OF LEASEHOLD INTERESTS. At Closing, Seller
shall (i) convey to Purchaser, by special warranty deed or the equivalent
statutory form of deed in the respective State in which the Property is located,
marketable fee simple title to each Fee Property and (ii) assign to Purchaser
its leasehold interest in each Leased Property, free and clear of all liens,
encumbrances, conditions, easements, assessments, and restrictions, except for
the following:
a. general real estate taxes for the year of Closing;
b. such rights-of-way, easements, restrictions, and reservations or
other encumbrances or conditions as are approved by Purchaser as
Permitted Encumbrances pursuant to Section 5.2;
c. building and zoning ordinances, laws and regulations applicable
to the Property;
d. mineral rights reserved by third parties;
e. matters that would be shown in a current survey of the Property;
and
f. rights of any franchisee, subtenant or licensee of Seller
occupying the Property at the Closing Date.
5.5 LEASED PROPERTIES. Prior to the Closing Date, Seller will exercise (i) any
purchase options in leases for Leased Properties, and (ii) any lease renewal
options applicable to the Leased Properties, that will be forfeited if not
exercised on or before the Closing Date. If the assignment of a lease for a
Leased Property requires the consent of the lessor, Seller shall promptly
request such consent.
ARTICLE VI
CLOSING
6.1 CLOSING; CLOSING DATE. Completion of the transactions contemplated by this
Agreement and Seller's delivery of the Deeds, the Assignments of Leases, the
Assignments of Franchise Agreement and the Bills of Sale and the execution and
delivery by the Parties of the other documents referred to herein ("Closing")
shall take place at the office of the Title Company, at or before 12:00 noon on
February 29, 2000, or at such other time, date and place as Seller and Purchaser
may mutually agree upon (the "Closing Date").
6.2 DELIVERY OF DOCUMENTS AT CLOSING. At the Closing, the following shall occur:
(A) Seller shall:
(1) deliver to the Title Company a duly executed and
acknowledged special warranty deed or equivalent statutory
form of deed for each Fee Property conveying marketable
title to such Property to Purchaser subject only to the
Permitted Encumbrances and as provided in Section 5.6
("Deed"). The Deed for each Fee Property shall be in the
form of Exhibit "J", and it shall contain the legal
description of such Property from the Survey, if a Survey
has been obtained by Purchaser, otherwise the legal
description shall be taken from the instruments of
conveyance of the Properties to Seller, as modified by any
subsequent partial conveyances or condemnations of portions
of any such Property, to the extent available to Seller;
(2) to the extent any required consents have been obtained,
deliver to the Title Company an executed and acknowledged
assignment of lease for each Leased Property subject only to
the Permitted Encumbrances ("Assignment of Lease"). The
Assignment of Lease for each Leased Property shall be in the
form of Exhibit "K" and shall contain the legal description
of such Property from the Survey, if a Survey has been
obtained by Purchaser, otherwise the legal description shall
be taken from the leases or instruments of conveyance of the
Properties to Seller, as modified by any subsequent partial
conveyances or condemnations of portions of any such
Property, to the extent available to Seller;
(3) deliver to Purchaser an executed bill of sale for all
personal property and equipment located on each Property
("Bill of Sale"), which shall be in the form of Exhibit "L";
(4) deliver to Purchaser assignments of the Contract Dealer
Agreements, the Fee & Lease Dealer Agreements and the
Distributor Sales Agreements, which shall be in the form of
Exhibit "M" (the Assignment of Franchise Agreement");
(5) deliver to Purchaser the executed Supply Agreement, as
provided in Section 2. 1, and the executed Branded Marketer
Agreement, as provided in Section 2.2;
(6) to the extent obtained by Seller prior to the Closing Date,
deliver to the Title Company the written consent of any
lessor or landlord, if the assignment of the lease relating
to a Leased Property requires such consent, such written
consent to be in form and substance satisfactory to the
Title Company and Purchaser; and
(7) deliver to the Title Company and to Purchaser such
certificates of incumbency and evidence of corporate
authority for the execution and delivery of this Agreement
and all documents required hereunder in such form and
content as the Title Company and Purchaser reasonably may
require.
(B) Purchaser shall:
(1) pay the Purchase Price as provided in Section 3.1;
(2) execute and deliver to Seller the Supply Agreement, as
provided in Section 2.1; and
(3) execute and deliver to Seller the Branded Marketer
Agreement, as provided in Section 2.2.
6.3 APPORTIONMENT OF TAXES. General real estate taxes for the then current year
relating to each Property and rents, if any, shall be prorated as of the Closing
Date and shall be adjusted at the Closing. If the Closing shall occur before
taxes are finally fixed for the then current year for any Property, the
apportionment of taxes at the Closing shall be upon the basis of the latest tax
rate applied to the latest assessed valuation for such Property. All special
taxes or assessments applicable to any Property prior to the Closing Date shall
be paid by Seller, including, without limitation, all taxes resulting from
subsequent assessments for years or portions thereof prior to the Closing due to
change in land usage or ownership pursuant to existing law. Seller shall collect
from Purchaser at Closing and shall pay all sales taxes applicable to the
personal property and equipment transferred to Purchaser. All other closing
costs, including, without limitation, transfer taxes, recording and escrow fees,
shall be assessed to Purchaser, as of the Closing Date.
6.4 PAYMENTS FROM FRANCHISEES. All rents and other sums due or payable by Seller
under the Fee & Lease & Dealer Agreements, the Contract Dealer Agreements and
the Distributor Sales Agreements will be prorated as of the Closing Date. Unless
otherwise agreed by the Parties, payment of the prorated amounts will occur
within forty-five (45) days after the Closing.
ARTICLE VII
ENVIRONMENTAL MATTERS
7.1 DEFINITIONS. As used herein, "Covered Contamination" means recoverable free
liquid hydrocarbons, dissolved hydrocarbon components, absorbed and vapor phase
hydrocarbon contamination, soil contamination which (i) was caused by Seller's
operations on any prior to the Closing Date, or occurs prior to or after the
Closing Date and is the result of the migration off a Property of contamination
that was located on a Property prior to the Closing Date, (ii) either (A) is
shown in the Baseline Report, as defined in Section 7.3 if applicable, or (B) is
shown by Purchaser to have been located on the Property prior to the Closing
Date pursuant to Section 7.4(C) or Section 7.4(D), and (iii) is required to be
remediated under applicable federal, state or local laws and regulations.
7.2 TANK TESTING. Seller, at Seller's expense, shall cause tightness tests of
all underground tanks and lines at the Properties to be conducted within sixty
(60) days prior to the Closing Date, or, upon mutual agreement of the Parties,
thirty (30) days after the Closing Date, using a "precision" test, such as the
Petro-Tite(RM), Tanknology Vacu Test(RM) or Leak Lokator(RM) tests, or an
equivalent test. Upon completion of such tests, Seller shall furnish copies of
the test results to Purchaser. Any untight fiberglass tanks or lines discovered
pursuant to such tests may be repaired by Seller rather than replaced if (i)
Seller would repair rather than replace such tanks or lines under Seller's
normal procedures if ownership of the Property were remaining with Seller, (ii)
such equipment was originally manufactured by either Owens-Corning or Xerxes,
(iii) the repair is effected by the manufacturer or its authorized contractors,
and (iv) the manufacturer certifies and warrants the condition of the tanks and
lines to be as tight as when new. In the event that Seller is unable to repair
any fiber glass tanks or lines in accordance with the standards set forth above,
Purchaser will receive at the Closing for such Property a credit toward the
Purchase Price in the amount of $70,000.00 per tankfield, and Purchaser will be
responsible for the installation of replacement tanks and lines on such
Property, at Purchaser's expense.
7.3 ENVIRONMENTAL ASSESSMENT
(A) Seller may, but shall not be obligated to, undertake at Seller's
expense an environmental assessment of each Property to determine the presence
of Covered Contamination. If undertaken, Seller will use reasonable efforts to
complete such assessments before the Closing Date or such other date as the
parties may mutually agree. At any Property at which Seller has previously
conducted, or is currently conducting, or is planning to conduct, any
environmental assessment or remediation activities ("Existing Cases"), Seller
shall deliver all existing environmental assessment data ("Existing Case Data")
to Purchaser as soon as possible but not later than sixty (60) days after the
Effective Date. The report of such environmental assessment, if undertaken, or
the Existing Case Data, if applicable, shall be the "Baseline Report" for each
Property. A copy of each Property's Baseline Report shall be provided to
Purchaser promptly after Seller's receipt thereof Seller also may undertake
additional environmental assessments on any Property after the Closing, and the
assessment reports will constitute amendments of the Baseline Reports for such
Properties, if applicable.
(B) Purchaser may conduct additional environmental assessments of
Properties at its expense before and after the Closing Date. Purchaser will
provide copies of the assessment reports promptly to Seller. Such assessment
reports will constitute amendments of the Baseline Reports for the Properties
affected thereby, if Baseline Reports have been prepared.
(C) To the extent required by applicable laws and regulations, Seller
shall report all Covered Contamination reflected in the Baseline Reports to the
relevant governmental authorities ("Authorities") and provide appropriate
notification thereof to property owners. To the extent required by applicable
laws and regulations, Purchaser shall report all New Contamination (as defined
in Section 7.4(C)) to the Authorities and provide appropriate notification
thereof to property owners.
(D) Seller shall remediate the Covered Contamination on any Property
in accordance with all applicable laws and regulations, provided that the
Closing occurs and the Property is conveyed to Purchaser. Seller's obligations
to remediate Covered Contamination on any Property shall continue until Closure
is obtained pursuant to Section 7.4(B).
7.4 ENVIRONMENTAL RESPONSIBILITY.
(A) Seller shall conduct all negotiations with the Authorities with
respect to the remediation of the Properties, for which Seller is responsible
under Section 7.3(D); provided, however, that Purchaser may attend, but not
actively participate in, any such negotiations. The Parties acknowledge that
Seller shall have the lead responsibility for setting policy, establishing
direction and conducting negotiations with the Authorities relating to the
remediation of Covered Contamination, and Purchaser shall neither contact nor
negotiate with the Authorities independently of Seller in connection with the
remediation of Covered Contamination. Seller shall provide Purchaser with copies
of all correspondence or other documents it receives from the Authorities, and
shall furnish Purchaser copies of all correspondence and other documents it
supplies to the Authorities, relating to any remedial action plan submitted by
Seller with regard to the Properties. Purchaser shall provide Seller with copies
of all correspondence and documents it receives from or provides to the
Authorities during the period of Seller's remediation activities on any
Property.
(B) As to each Property transferred or conveyed to Purchaser, Seller
shall undertake after the Closing Date, at its expense, all reporting and
notification required by law and all remediation or further investigation of
Covered Contamination on, under or originating from such Property, in compliance
with the requirements of the Authorities and all applicable environmental laws
and regulations and until Closure is obtained pursuant to this Section 7.4(B).
Seller shall be entitled to the benefit of any government reimbursement funds
that may be available with respect to such remediation of Covered Contamination.
Seller shall coordinate administrative efforts to recover such reimbursement.
Seller shall remediate the Covered Contamination on or migrating (or migrated)
from any Property in accordance with all applicable laws and regulations, until:
(1) Receipt of written notice from the Authorities that either
no further remediation of the Covered Contamination
identified in the Baseline Report is required, or that the
approved remediation plan of the Covered Contamination
identified in the Baseline Report has been completed; or
(2) Seller has requested closure notice from the Authorities,
has not received any response of any kind to its request for
a closure notice for twelve (12) months and Seller has
determined that the soil and groundwater has been remediated
to satisfactory levels based on four (4) successive
quarterly monitoring tests by a recognized environmental
remediation contractor that show the level of petroleum
hydrocarbons on the Property as being below or equal to the
limit required by the Authorities and Seller so notifies
Purchaser in writing.
The satisfaction of either of the conditions set forth in
clauses (1) or (2) above shall be referred to as "Closure"
herein.
(C) Any environmental contamination which (i) is not disclosed in the
Baseline Report for a Property, if applicable, (ii) is discovered after the
Closing Date on any Property or (iii) is caused after the Closing Date by
Purchaser, Purchaser's tenants, franchisees, or contractors, or is caused by
third parties, in an area of the Property identified in the Baseline Report as
containing Covered Contamination and before Seller's remediation of such Covered
Contamination has been completed, is herein referred to as "New Contamination."
Purchaser shall bear the burden of proof to establish that such environmental
contamination is Covered Contamination. Similarly, if any environmental
contamination not disclosed in the Baseline Report for a Property is discovered
after the date Seller completes the remediation contemplated by Sections 7.3 and
7.4 ("Remediation Completion Date"), Purchaser shall bear the burden of proof to
establish that such environmental contamination is Covered Contamination. If any
environmental contamination is discovered after the Closing Date and Purchaser
meets its burden of proving that it is not New Contamination but Covered
Contamination, Seller shall remediate such Covered Contamination, in compliance
with applicable remediation standards in effect at such time.
(D) If environmental contamination is discovered on any Property after
the Closing Date, but prior to the Remediation Completion Date, Purchaser shall
promptly notify Seller and act promptly to minimize the effects of such
environmental contamination. If, pursuant to Section 7.4(C), Purchaser does not
establish that such environmental contamination is Covered Contamination, and if
Seller reasonably determines that such New Contamination will make Seller's
remediation at the applicable Property significantly more difficult, more
expensive, or will extend significantly the time required to complete such
remediation work, Purchaser shall hire at Purchaser's sole expense a consultant
mutually acceptable to Purchaser and Seller to assess the effect of such New
Contamination on the environmental condition of the Property. This assessment
shall include a review of the remediation work that had been done to date and
the remaining cost to complete the remediation absent the New Contamination. In
addition, the consultant will estimate the cost of the additional work that will
be required due to the New Contamination. Purchaser will begin paying that
fractional cost percentage of all further remediation work performed by Seller
at the Property, determined by the following formula:
(1) Purchaser's fractional cost = I - (Estimated cost to complete
remediation prior to New Contamination divided by estimated cost
to complete remediation after the New Contamination).
EXAMPLE:
A. Estimated cost to complete remediation prior to New
Contamination equals $100,000. (As calculated at the time
the New Contamination occurs.)
B. Estimated cost to complete remediation. after New
Contamination equals $150,000. (Includes the $100,000 in
A plus $50,000 in estimated costs related to the New
Contamination.)
C. Purchaser's fractional cost equals: 1 - (A divided by B),
or 1 - .667, which results in Purchaser paying one-third
(333) of subject remediation costs incurred after the New
Contamination occurs.
(2) Purchaser will promptly pay its share of costs and expenses to
Seller as remediation work is performed and as invoices for such
work, with supporting documentation, are presented to Purchaser.
(3) The above notwithstanding, if Purchaser's fractional cost as so
calculated should exceed eleven-twentieths (11/20ths), Purchaser
shall, upon request by Seller, take over the ongoing remediation
efforts at the Property with the costs of such remediation
continuing to be shared between Seller and Purchaser as set forth
in this Section. In such event, Purchaser and Seller shall
attempt to negotiate a buyout to transfer the remediation
responsibility for known Covered Contamination at the Property
from Seller to Purchaser. If the Parties are unable to agree upon
the present value of the expected costs of completing the
remediation of known Covered Contamination ("Remediation Cost")
at a Property, the Parties shall select a consultant satisfactory
to both Parties who shall attempt to mediate between the Parties
to resolve such differences in a mutually satisfactory manner.
The fees and expenses of such consultant shall be borne equally
by the Parties. If the Parties agree upon the Remediation Cost
for any Property, Seller shall pay to Purchaser an amount equal
to the Remediation Cost and purchaser shall assume responsibility
for the completion of the remediation of Covered Contamination at
the Property. Purchaser shall also execute and deliver to Seller
a release of remediation liability for known Covered
Contamination in the form of Exhibit "N". Such release shall
include an assignment to Purchaser of Seller's rights, with
respect to the Property, to reimbursement from the relevant state
reimbursement fund, if any.
7.5 ACCESS. After the Closing Date, Purchaser shall provide for and permit such
access, at no cost to Seller, as Seller and its employees, agents, and
contractors may require to each Property, for such time as is required for
Seller to meet all environmental obligations contemplated by this Agreement.
Such access shall include the right to conduct such tests, take such
groundwater or soil samples, excavate, remove, dispose of, and treat the soil
and groundwater, and undertake such other actions as are necessary in the sole
judgment of Seller. Seller shall expeditiously remove from the Property (or
Properties) as soon as reasonably practicable all drums containing drill
cuttings, soil, debris or liquids generated from Seller's remediation or
investigation activities. Seller shall restore the surface and existing
structures, if any, on each Property to a condition substantially similar to
that at the time immediately prior to the action taken by Seller and shall
replace or repair damage to Purchaser's equipment and personal property on the
Property caused by Seller or its contractors. Seller shall, to the extent
practical, undertake the actions necessary to complete its remediation of
Covered Contamination in a manner that will not unreasonably disrupt the
operations of Purchaser on the Property. In no event, however, shall Seller have
liability to anyone, including Purchaser, for business disruption, lost profits,
or consequential damages arising from such actions or access. Seller or its
contractors shall provide Purchaser as much advance notice as possible (but at
least five (5) business days' notice) of all potentially disruptive or intrusive
activities to be taken on the Properties; such notice may be in the form of a
periodic schedule of activities. No advance notice shall be required for
nondisruptive activities such as periodic monitoring of wells on a Property.
Seller and Purchaser agree to cooperate on the placement and the location of
Seller's remediation equipment. Any cost or expense to repair or replace
monitoring and remediation equipment resulting from the acts or omissions of
Purchaser or Purchaser's contractors shall be the responsibility of Purchaser.
Purchaser and Seller shall cooperate in determining the order in which Seller
implements its remediation operations on the Properties, but the final
determination shall be Seller's.
7.6 MAINTENANCE OF RECORDS. During the course of Seller's remediation of any
Property, Purchaser shall maintain inventory and tank and line maintenance
records for such Property as required to comply with all applicable laws and
regulations. Seller shall have the right to review these records as Seller deems
necessary so as to be assured of the integrity of Purchaser's tank and line
system at the Property.
7.7 TRANSFER OF RESPONSIBILITY. Purchaser and Seller may from time to time
attempt to agree upon the Remediation Cost at a Property and the transfer of the
responsibility for the remediation of known Covered Contamination from Seller to
Purchaser. If the Parties agree upon such Remediation Cost and transfer, Seller
shall pay to Purchaser an amount equal to the Remediation Cost and Purchaser
shall assume responsibility for the completion of the remediation of known
Covered Contamination. Purchaser shall also execute and deliver to Seller a
release of remediation liability for known Covered Contamination in the form of
Exhibit "N". Such release shall include an assignment to Purchaser of Seller's
fights to reimbursement from the relevant state reimbursement fund, if any with
respect to the Property.
7.8 SELLER'S INDEMNIFICATION. For a period of five (5) years from the Closing
Date, Seller shall defend, indemnify and hold Purchaser and its affiliates
harmless from and against all claims, expenses (including reasonable attorneys'
fees), loss or liability arising from or related to Covered Contamination on the
Properties. This indemnity also will apply to any claim by a third party or the
Authorities that relates to the migration of Covered Contamination off any
Property. This indemnity shall not be assignable by Purchaser. This indemnity
will not apply to, and Seller will have no liability for, claims by Purchaser or
third parties for diminution in value, lost profits, business disruption or
consequential damages relating to Covered Contamination on any Property.
7.9 PURCHASER'S INDEMNIFICATION. Purchaser shall defend, indemnify and hold
Seller and its affiliates harmless from and against all claims, expenses
(including reasonable attorneys' fees), loss or liability arising from or
related to any New Contamination.
7.10 PURCHASER'S RELEASE. In consideration of the making of this Agreement, the
conveyance of the Properties to Purchaser, and the covenants of Seller to
remediate and to indemnify Purchaser as provided in Paragraph 7.4 and 7.8
("Seller's Obligations"), Purchaser agrees to accept the conveyance of the
Properties in their present condition and, if Seller fulfills Seller's
Obligations, to make no claim regarding the environmental condition of the
Properties. Purchaser hereby releases Seller from all Claims (including Claims
under the Comprehensive Environmental Response Compensation and Liability Act of
1980 as amended, (CERCLA) and the Resource Conservation and Recovery Act of
1976, as amended (RCRA) and other environmental laws) for injury, death,
destruction, loss or damage to the person or property of Purchaser and its
employees arising out (i) the environmental condition of the Properties and the
improvements and the equipment on the Properties, and (ii) the existence of
Covered Contamination on the Properties. This release does not include: (a)
Seller's Obligations; and (b) Claims by third parties and Governmental
Authorities relating to Covered Contamination on the Properties.
7.11 LIMITATIONS ON LIABILITY. Seller shall not be responsible for remediation
of any Covered Contamination at any Property after the Remediation Completion
Date if such remediation would be required only as a result of changes in
applicable remediation standards or environmental laws and regulations enacted
or promulgated after the Remediation Completion Date. In addition, the parties
acknowledge and agree that Seller shall have no responsibility for any
environmental matters at any real property on which any Contract Dealer or
Distributor operates a service station.
7.12 BURDEN OF PROOF. If any environmental contamination is discovered in
connection with any Property subsequent to the Remediation Completion Date,
Purchaser shall bear the burden of proof to establish that such contamination
is Covered Contamination.
7.13 LEASED PROPERTIES. In the event that, after the Closing Date and before the
Remediation Completion Date, the lease for any Leased Property expires or is
terminated, Seller shall be responsible for arranging access to the Property, at
Seller's expense, for the purpose of undertaking and completing its remediation
activities, including payment by Seller to the landowner of any rental or access
fee charged by the landowner in respect to such access to and use of the
Property; provided, however, that if such lease expiration is the result of
Purchaser's decision not to exercise any extension or renewal option provided
for in such lease, Purchaser shall give Seller at least six (6) months notice of
such election to not extend or renew the lease.
7.14 ELECTIVE WORK. If Purchaser encounters and excavates or removes
contaminated soil or groundwater on any Property while conducting construction,
remodeling, or demolish and rebuild work on any Property not required by Seller
("Elective Work"), Purchaser will solely bear the costs of removing, recycling
or disposing of the contaminated soil and groundwater, regardless of whether the
soil or groundwater on any Property contains Covered Contamination. Purchaser
will be deemed to be the generator of all hazardous waste caused by or
originating from the tanks and lines used in Purchaser's operations on the
Properties. Purchaser will report any such hazardous waste and environmental
contamination, including Covered Contamination and contaminated soil and
groundwater excavated, removed, recycled or disposed of by Purchaser in
connection with Elective Work on any Property, to the Governmental Authorities
if required to do so by applicable laws and regulations. Purchaser also will
sign all manifests for transportation and disposal of any such hazardous waste
and contaminated soil or groundwater. Purchaser will pay the cost of clean fill
required for any excavation caused by Elective Work on any Property.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES; COVENANTS
8.1. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants to Purchaser as follows, which representations and warranties shall be
deemed made by Seller also as of the Closing Date:
a. Seller is a corporation duly organized, validly existing, and in
good standing under the laws of the State of its incorporation
and is duly qualified to do business as a foreign corporation or
partnership in each State where the Properties are located.
Seller has full power and authority to enter into this Agreement
and to perform its obligations hereunder.
b. To Seller's knowledge, Seller is in compliance with all
applicable laws, ordinances, regulations, statutes, rules and
restrictions relating to the Properties and Seller has received
no notice of any failure to comply therewith.
c. No provision of (i) Seller's certificate of incorporation or
by-laws or, (ii) to Seller's knowledge, any agreement, instrument
or understanding to which it is a party or by which it is bound,
or, (iii) to Seller's knowledge, any order, writ, injunction,
decree, statute, rule or regulation applicable to Seller, has
been or will be violated by the execution by it of this Agreement
or the performance or satisfaction of any agreement or condition
herein contained upon its part to be performed or satisfied.
d. All requisite corporate and other authorizations for the
execution, delivery, and performance of this Agreement have been
duly obtained by Seller.
e. To Seller's knowledge, no consent or approval of any governmental
or regulatory authority is required for the due authorization,
execution, or delivery by Seller of this Agreement other than the
consent of the FTC pursuant to the Consent Decree relating to the
Exxon Mobil merger and the approval of the Attorney Generals of
the States in which the Properties are located.
f. Seller has all approvals, permits, governmental authorizations
and consents required to operate each of the Company Operated
Properties as a retail service station and any other current use
thereon.
g. Except as disclosed in this Agreement the Exhibits and
operational contracts required in connection with Company
Operated Properties, which contracts will be disclosed to
Purchaser prior to the Closing Date, there are presently
outstanding no other contracts or agreements (whether written or
oral) to which Seller is a party with respect to the ownership,
development or operation of the Properties and no other parties
have any interest in any of the Properties, except as set forth
herein.
h. Except as set forth on Exhibit "O", there is no litigation
pending or threatened affecting Seller or the Properties which
would constitute a lien, claim or obligation of any kind against
the Properties or which would materially and adversely affect any
of the Properties.
i. Seller has notified Purchaser of all condemnation actions or
similar proceedings affecting any of the Properties as to which
Seller has received written notice by the condemning authority.
j. All taxes or other assessments on or concerning the Properties
for which Seller is liable and all taxes, fees, or other levies
measured by transactions or business activity conducted by Seller
on or with respect to the Properties for the year of transfer and
earlier, other than installments or assessments not yet due, have
been paid in full and there are no penalties or delinquency
charges; provided, however, that there may be charges which
Seller may be challenging in good faith and which Seller shall
pay if Seller is unsuccessful in its challenge.
k. There are no mortgages, security interests or liens affecting the
equipment and personalty owned by Seller on any of the
Properties.
1. To Seller's knowledge, the present zoning of each of the
Properties will permit the use of such Property for its current
use.
m. There are no matters known to Seller that would materially and
adversely affect Purchaser's ability to operate the business at
any of the Properties after the Closing Date as a retail service
station with such ancillary businesses as are currently being
conducted thereon.
8.2. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser hereby represents,
and warrants to, and covenants and agrees with Seller that as of the date hereof
and as of the Closing Date:
a. Purchaser is a corporation duly organized, validly existing, and
in good standing under the laws of the State of its incorporation
and is duly qualified to do business as a foreign corporation in
each State where the Properties are located. Purchaser has full
corporate power and authority to enter into this Agreement and to
perform its obligations hereunder.
b. No provision of (i) Purchaser's certificate of incorporation or
by-laws, or, (ii) to Purchaser's knowledge, any agreement,
instrument or understanding to which it is a party or by which it
is bound, or, to (iii) Purchaser's knowledge, any order, writ,
injunction, decree, statute, rule or regulation applicable to
Purchaser has been or will be violated by the execution by
Purchaser of this Agreement or by Purchaser's performance or
satisfaction of any agreement or condition herein contained upon
its part to be performed or satisfied.
c. All requisite corporate and other authorizations for the
execution, delivery and performance of this Agreement have been
duly obtained by Purchaser.
d. To Purchaser's knowledge, no consent or approval of any
governmental or regulatory authority is required, except as noted
herein, for the due authorization, execution, or delivery by
Purchaser of this Agreement.
8.3 OPERATION PENDING CLOSING. Between the Effective Date and the Closing Date,
Seller shall not permanently close any of the service stations on the
Properties, without the approval of Purchaser, except for any termination or
nonrenewal of any Fee & Lease Dealer Agreement for any reason permitted by the
PMPA. Notwithstanding the foregoing, Seller may close any service station
temporarily to change the franchisee at the Property, and to repair or rebuild
the improvements therein. Seller will use reasonable commercial efforts to
maintain the current operations on, and the repair and maintenance of, the
Properties between the Effective Date and the Closing Date.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All Indemnifications,
representations, warranties, covenants and agreements of the Parties contained
in this Agreement shall survive for a period of three (3) years following the
Closing Date, except that the environmental obligations of the Parties shall be
governed by the provisions of Article 7 and except further that the
indemnification set forth in Section 9.2(vi) shall survive for a period of five
(5) years after the consent order or other order of Authorities expires. It is
the Parties' intent that such surviving rights and obligations shall not merge
in the Closing or the conveyancing instruments delivered at the Closing.
9.2 INDEMNIFICATION OBLIGATIONS. Except for environmental matters and matters
with respect to Seller's franchise relationships which are covered by Article 7
and Article 4, respectively, Seller and Purchaser ("Indemnitors") each shall
defend, indemnify and hold harmless the other, its successors, assigns,
directors, employees, subsidiaries, affiliates and agents ("Indemnitees"), from
and against each and every Claim, which results from, arises out of or is
attributable in any way to any of the following:
(i) the Indemnitor's ownership, possession, operation, use or
maintenance of any Property;
(ii) claims with respect to brokers, finders and agents' fees and
commissions in connection with the transaction contemplated
in this Agreement asserted by any person on the basis of any
statement, instrument or agreement alleged to have been made
by the Indemnitor;
(iii) any failure or alleged failure by the Indemnitor to comply
with federal, state and local laws and regulations which
apply to this transaction, including, but not limited to,
PMPA and state franchise laws;
(iv) any representation or warranty made by the Indemnitor in
this Agreement or in documents delivered by the Indemnitor
at the Closing which are misleading or untrue in any
material respect;
(v) any breach of the obligations, covenants or agreements made
by the Indemnitor in this Agreement; or
(vi) the non-compliance of the Indemnitor with any directive,
order or requirement of the Authorities, including but not
limited to environmental cleanup orders relating to any
Property.
9.3 ASSERTION OF RIGHT OF INDEMNIFICATION. The Indernnitee shall notify the
Indemnitor of the assertion of any Claim hereunder promptly after the Indemnitee
receives actual notice of said Claim. The Indemnitee shall have the right, but
not the duty, to participate with attorneys of its own choosing, at its own
expense, in the defense of any Claim for which the Indemnitor is obligated to
defend and indemnify it, and to approve any settlement that affects it, without
relieving the Indemnitor of any obligations hereunder.
ARTICLE X
BROKERAGE COMMISSIONS
10.1 COMMISSIONS. It is acknowledged and agreed that no brokers have been
involved in the negotiation and consummation of this Agreement and no broker's
commission is due or payable to any person. Each Party shall indemnify and hold
harmless the other Party from any and all Claims for any broker's commission
arising through its acts or dealings with any third party.
ARTICLE XI
CONDITIONS PRECEDENT
11.1 APPROVALS. Purchaser understands and acknowledges that this Agreement and
the consummation of the transactions contemplated by this Agreement are subject
to and conditioned upon Seller obtaining approval from the FTC pursuant to the
terms of the Consent Decree and approval from the Attorney Generals of the
States in which the Properties are located. Purchaser further acknowledges that
Purchaser is required to provide certain information to the FTC and the State
Attorney Generals in connection with Seller's application for approval from the
FTC and the State Attorney Generals and Purchaser agrees that Purchaser shall
supply all information required by the FTC and the State Attorney Generals and
to otherwise fully cooperate with Seller as expeditiously as possible in
connection with such approval.
ARTICLE XII
DEFAULTS, REMEDIES
12.1 PURCHASER'S DEFAULT. In the event this Agreement is not consummated because
of non-performance, default or breach (collectively herein called a "Default")
by Purchaser, then Seller may at its sole option take any of the following
courses of action:
(a) terminate this Agreement and draw upon the Earnest Money
Deposit upon which termination Seller and Purchaser shall
have no further obligation or liability one to the other
hereunder; or
(b) file suit against Purchaser for damages; or
(c) enforce specific performance of this Agreement and the
transaction provided for herein according to the terms
hereof by all means available at law or in equity.
In the event Seller elects first to enforce this Agreement by
specific performance and at any time during pursuit of
enforcement elects not to pursue specific performance, Seller
shall be entitled to pursue its remedies under Subparagraphs (a)
or (b) as if it had elected to do so as above set forth, and such
subsequent election to pursue its courses of action under
Subparagraph (a) or (b) above shall be deemed to be an election
of remedies at that time and not before.
Purchaser acknowledges and agrees that a Default by Purchaser
under this Agreement will constitute a default by Purchaser
pursuant to the Agreement of Purchase and Sale and Assignment of
Marketing Assets between Purchaser and Exxon Corporation be,
relating to the sale and purchase of retail marketing properties
and assets in other States. Purchaser acknowledges and agrees
that a default under the Agreement of Purchase and Sale and
Assignment of Marketing Assets between Purchaser and Exxon
Corporation relating to the sale and purchase of retail marketing
properties and assets in other States will constitute a Default
by Purchaser hereunder.
12.2 SELLER'S DEFAULT. In the event this Agreement is not consummated because of
non-performance, default or breach (collectively herein called "Default") by
Seller then Purchaser may at its sole option, as its exclusive remedies, take
any of the following courses of action:
(a) terminate this Agreement and recover the Earnest Money
Deposit from escrow, upon which termination Seller and
Purchaser shall have no further obligation or liability one
to the other hereunder; or
(b) file suit against Seller for damages; or
(c) enforce specific performance of this Agreement and the
transaction provided for herein according to the terms
hereof by all means available at law or in equity.
In the event Purchaser elects first to enforce this Agreement by
specific performance and at any time during pursuit of
enforcement elects not to pursue specific performance, Purchaser
shall be entitled to pursue its remedies under Subparagraphs (a)
or (b) as if it had elected to do so as above set forth, and such
subsequent election to pursue its courses of action under
Subparagraphs (a) and (b) shall be deemed to be an election of
remedies at that time and not before.
ARTICLE XIII
PERMITS
13.1 SELLER'S COOPERATION. From the Effective Date until the Closing Date,
Seller shall cooperate with Purchaser at Purchaser's expense in executing all
documents reasonably required in connection with Purchaser's obtaining any
governmental permits, or zoning variances, use permits or site plan approvals
relating to the Properties, desired by Purchaser. Purchaser shall indemnify and
hold Seller harmless from any and all claims, liabilities (direct or indirect),
costs and expenses (including attorneys' fees) related to or arising from
Seller's cooperation and execution of such documents.
13.2 POST-CLOSING OBLIGATION. After the Closing, Seller shall cooperate with
Purchaser, at no cost or risk to Seller, to obtain or to transfer any permits
and licenses held by Seller that Purchaser may require for the continued
operation of the Properties, with such ancillary businesses as are conducted
thereon on the Closing Date.
ARTICLE XIV
PROPERTY- LOSS
14.1 NOTICE. Seller shall give Purchaser prompt notice of (i) any casualty
affecting any of the Properties between the Effective Date and the Closing Date,
and (ii) any actual taking or condemnation of all or any portion of any Property
or any planned or pending condemnation action as to which Seller has received
written notice from the condemning authority.
14.2 CASUALLY. In the event any Property suffers damage or destruction
subsequent to the Effective Date, but prior to the Closing Date, Seller shall
elect either (i) to repair or make adequate provision for the repair of such
Property prior to Closing or (ii) to reimburse Purchaser by an amount agreed
upon by Seller and Purchaser to represent the reduction in the real estate value
of the Property by reason of the casualty.
14.3 CONDEMNATION.
(A) If after the Effective Date and prior to the Closing Date, there
shall occur the transfer of title or possession of all or any part of a Property
by condemnation ("Taking"), the Closing shall take place as to such Property as
provided herein without abatement of the Purchase Price, and there shall be
assigned to Purchaser at the Closing all interest of Seller in any award which
may be payable to Seller on account of such Taking.
(B) If prior to the Closing Date, Seller shall receive written notice
of a planned or threatened Taking of all or part of any Property, the Closing
shall take place as to such Property as provided herein without abatement of the
Purchase Price, there shall be assigned to Purchaser at Closing all interest of
Seller in any award which may be payable to Seller on account of such Taking.
14.4 RISK OF LOSS. Seller shall retain the risk of loss or damage with respect
to the Properties until title passes, which shall occur on the Closing Date.
ARTICLE XV
REAL ESTATE AND ENGINEERING DOCUMENTS AND OTHER INFORMATION
15.1 DELIVERY OF INFORMATION. Seller shall cooperate with Purchaser, before
and after the Closing Date, to provide Purchaser copies of material and relevant
real estate documents from Seller's files relating to the Properties, if
available, including title reports, base leases, unrecorded easements,
engineering plans and drawings, surveys, and receipted ad valorem tax bills for
the most recent filing year relative to the Properties.
15.2 ACCURACY OF INFORMATION, Seller shall exercise reasonable efforts to cause
the copies of documents listed in Section 15.1 to be accurate; however, the
Parties acknowledge that, such documents are, for the most part, unaudited and
therefore Seller makes no warranty, as to the accuracy or completeness of the
copies provided, nor shall Seller be liable to Purchaser in the event of any
inadvertent omission or error.
ARTICLE XVI
RIGHT OF ENTRY AND INSPECTION; EQUIPMENT
16.1 ENTRY AND INSPECTION. After the Effective Date and at a time mutually
agreed by the Parties, Purchaser may inspect each of the Properties, personally
or through agents, employees, contractors, or subcontractors, at Purchaser's
expense, to ensure that the equipment necessary for the operation of the
Properties as contemplated hereunder (defined as product dispensers, pumps, air
compressors, lifts, convenience store coolers, and air conditioners) ("Major
Equipment") is present and in proper working order. Seller's representatives may
attend all such inspections. Purchaser (a) shall assume all risks, except those
resulting from intentional torts by or negligence of Seller's employees and/or
franchisees, involved in entering the Properties pursuant to this Paragraph and
(b) shall indemnify Seller and hold it and its employees and franchisees
harmless from and against all loss, cost, liability, and expense (including, but
not limited to, reasonable attorneys' fees and other litigation expense)
incurred by Seller and Seller's employees and franchisees by reason of bodily
injury to or death of persons or damage to property sustained by any party which
is caused by Purchaser's negligence or intentional torts in connection with its
entry upon the Properties; provided that such indemnity shall not cover any
portion of such loss or expense arising out of or caused by Seller's or its
employees' and franchisees' negligence or intentional torts. If Purchaser
determines from its inspections that any of the Major Equipment is missing or in
need of repair, Purchaser shall notify Seller and Seller shall either replace or
repair such items prior to the Closing Date with items of equivalent utility,
value and quality which reasonably are acceptable to Purchaser, at Seller's
expense.
16.2 POST CLOSING INSPECTION. Within forty-eight (48) hours after the Closing,
Purchaser shall have the right to inspect each Property to determine whether the
Major Equipment is missing or in need of repair; and whether any previously
identified repairs or replacements were made pursuant to Section 16.1. Seller's
representatives shall be afforded the opportunity to attend such inspection. To
the extent that Purchaser reasonably determines from such inspections that any
Major Equipment is still missing or is in need of repair, and so notifies
Seller, Seller shall either replace or repair such items at its expense. If
Purchaser does not conduct such inspection of any Property within forty-eight
(48) hours after the Closing, Seller shall not be obligated to replace or repair
any Major Equipment.
16.3 MAINTENANCE OF EQUIPMENT. None of the Major Equipment and personal property
shall be disposed of or otherwise removed from a Property on or after the
Effective Date, except as may be agreed in advance by the Parties. Seller agrees
to maintain all Major Equipment or, the Properties to be transferred to
Purchaser in accordance with Seller's usual maintenance practices and to
transfer such equipment to Purchaser at the Closing in proper working condition
subject to reasonable wear and tear. All fixtures, improvements, and equipment
other than the Major Equipment shall be maintained in accordance with Seller's
usual maintenance practices and shall be transferred to Purchaser at the Closing
in an "as is, where is" condition, with no representations or warranties
whatsoever, express or implied, of merchantability, fitness, condition or
otherwise.
16.4 PURCHASER'S RIGHT TO INSTALL EQUIPMENT. Subject to the legal rights of
Seller's franchisees, Purchaser shall have the right, after the Effective Date,
personally or through agents, employees, contractors, or subcontractors, to
enter the Properties, at Purchaser's expense and at such reasonable times as
Purchaser may elect, to install point of sale equipment, telephone lines and
other equipment as needed to effect an orderly transition of operations after
the Closing Date. Purchaser (a) shall make reasonable efforts not to disrupt
existing operations on the Properties; (b) shall assume all risks, except those
resulting from intentional torts by or negligence of Seller's employees and/or
franchisees, involved in entering the Properties pursuant to this Paragraph and
(c) shall indemnify Seller and hold it and its employees and franchisees
harmless from and against all loss, cost, liability, and expense (including, but
not limited to, reasonable attorneys' fees and other litigation expense)
incurred by Seller and its employees or franchisees by reason of bodily injury
to or death of persons or damage to property sustained by any party which is
caused by Purchaser's negligence or intentional torts; provided that such
indemnity shall not cover any portion of any such loss or expense arising out of
or caused by Seller or its employees' or franchisees' negligence or intentional
torts.
16.5 PURCHASER'S RIGHTS. If the transaction contemplated by this Agreement is
not consummated for any reason and Purchaser has installed equipment on any
Property in accordance with Section 16.4, Purchaser shall, at Seller's option:
(1) remove the equipment installed by Purchaser and restore the Property to its
original condition; or (2) transfer to Seller, without warranty, express or
implied, title to any equipment installed by Purchaser, after which Seller shall
be solely responsible therefor.
ARTICLE XVII
EXCUSED DELAY IN PERFORMANCE
17.1 EXCUSED PERFORMANCE. The performance by either Party of any of its
obligations set forth in this Agreement shall not be deemed untimely to the
extent any late performance is due to acts of God, acts of war, civil
disturbance, acts of government (including, but not limited to, governmental or
court orders), strikes or other labor disputes (the settlement of which shall be
totally within the discretion of the Party having the difficulty) or any other
act or event beyond the reasonable control of the affected Party; provided,
however, that the affected Party is taking all reasonable steps to perform and
promptly notifies the other Party of the details of such occurrence; and
provided further that the time for the performance of any undertaking shall not
be extended or any failure to perform excused for more than sixty (60) days
pursuant to this Paragraph without the mutual consent of the Parties.
ARTICLE XVIII
EMPLOYEES
18.1 EMPLOYEES. After the Effective Date, and at a time mutually agreed by the
Parties, Purchaser will have the right to interview and offer employment to any
of Seller's exempt and non-exempt employees engaged in the management or
operation of any Property conveyed or transferred hereunder (not to include
Seller's salary-operated store employees) ("Eligible Employees"), concerning
possible employment opportunities with Purchaser. Seller will provide Purchaser
a list of all Eligible Employees within ten (10) days after the Effective Date.
If Purchaser determines to offer employment to any Eligible Employee, Purchaser
agrees to comply with the guidelines set forth in Seller's standard conditions
set forth in Exhibit "P" ("Conditions of Employment").
18.2 SALARY-OPERATED STORE EMPLOYEE. After the Effective Date, and at a time
mutually agreed by the Parties, Purchaser will have the right to interview and
offer employment to any of Seller's exempt and non-exempt employees engaged in
the management or operation of any salary-operated or company-operated store on
any Company Operated Property conveyed or transferred hereunder concerning
possible employment opportunities with Purchaser.
ARTICLE XIX
JOINT PUBLICITY
19.1 PRESS RELEASE AND RELEASE OF OTHER INFORMATION. Publicity and other
releases concerning the transaction contemplated by this Agreement shall, where
possible, be jointly planned and coordinated between Purchaser and Seller.
Neither Party shall act unilaterally in this regard without the prior approval
of the other Party provided, however, that such approval shall not be
unreasonably withheld. Nothing herein contained shall prevent either Party from
furnishing information to any governmental agency or from furnishing information
to comply with applicable laws or regulations.
ARTICLE XX
ASSIGNMENT
20.1 ASSIGNMENT. Except as may hereafter be provided, this Agreement may not be
assigned by either Party without the prior written consent of the other Party,
which consent may be withheld for any reason. Notwithstanding the preceding
sentence, Purchaser may designate, upon notice to Seller at least thirty (30)
days before the Closing Date, an entity or entities to accept Seller's title to
the Properties on the Closing Date and to pay the Purchase Price to Seller;
provided, however, that such designation shall not affect Purchaser's duties and
obligations hereunder and Purchaser will remain primarily bound by all of its
covenants, warranties, representations and indemnifications. Furthermore,
notwithstanding the foregoing, Seller may assign this Agreement or any of its
rights or obligations under this Agreement to any entity that owns or controls,
is owned or controlled by or is under common control with Seller.
ARTICLE XXI
ON THE RUN(R) FRANCHISE AGREEMENTS
21.1 EXISTING FRANCHISE AGREEMENTS. Purchaser acknowledges that Seller is the
franchisor under business format franchise agreements with the Distributors, Fee
& Lease Dealers and Contract Dealers (the "OTR Franchisees") listed on Exhibit
"Q" for the operation by the OTR Franchisees of On The Rung(R) convenience
stores at the service station facilities listed on Exhibit "Q". Notwithstanding
any conveyance contemplated by this Agreement, Purchaser further acknowledges
and agrees the business format franchise agreements with the OTR Franchisees
relating to the On The Rung convenience stores are not being assigned to
Purchaser and that after the Closing, Seller shall continue to be the franchisor
under such agreements, until the termination or expiration of such agreements.
ARTICLE XXII
MISCELLANEOUS
22.1 ENTIRE AGREEMENT. This Agreement embodies the entire agreement between the
Parties relating to the transactions contemplated by this Agreement and cannot
be varied except by the written agreement of the Parties. This Agreement
supersedes any other agreement of the Parties relating to the transactions
contemplated by this Agreement.
22.2 Notices. Any notice, demand, request, consent, approval, or other
communication which a Party hereto is required or desires to give, make or
communicate to the other shall be effective and valid only when in writing and
shall be deemed duly given when received if such notice is mailed by registered
or certified mail, return receipt requested, or sent by personal delivery or
sent by a nationally recognized overnight carrier, return receipt requested, or
sent by telecopier (fax), all charges prepaid, addressed in the case of Seller
to:
Divestment Team
c/o Mobil Oil Corporation
3225 Gallows Road
Fairfax, Virginia 22037
Attention: James S. Carter
Divestment Team Manager
Telecopier: 703-846-5440
and in the case of Purchaser to:
Tosco Corporation
72 Cummings Road
Stamford, CT 06902
Attention: Wilkes McClave
Senior Vice President
Telecopier 203-964-3197
, or in either case at such other address as may have last been
specified by notice given as provided by the Party addressed.
22.3 CONSTRUCTION. Words of any gender used in this Agreement shall be construed
to include any other gender, and words in the singular number shall include the
plural, and vice versa, unless the context requires otherwise.
22.4 CAPTIONS. The captions used in connection with the Articles and Sections of
this Agreement are for convenience only and shall not be deemed to enlarge,
limit or otherwise modify the meaning or interpretation of the language of this
Agreement. Any references to "Articles", "Sections", "Subsections" and
"Exhibits" are to Articles, Sections, Subsections, Exhibits, Riders and Addenda
of this Agreement.
22.5 SURVIVAL. The provisions of Article 1, Section 2.3, Article IV, Sections
5.2 and 5.3, Articles VI and VII, Sections 8.1 and 8.2, Articles IX, X and XII,
Section 13.2 and Articles XV, XVI, XVII, XVIII XIX, XXI and XXII shall survive
the Closing of the transaction under this Agreement and shall not be deemed to
have merged therewith. All other provisions hereof not included or incorporated
in any document to be executed and delivered on the Closing Date shall not
survive the Closing.
22.6 EFFECTIVE DATE. All time limits provided for herein which are measured by
the number of days "from the date hereof" (rather than being designated by
specific date) shall run from the Effective Date, rather than the date or dates
of execution by the Parties.
22.7 FURTHER ASSURANCES. Following the Closing Date, for no further
consideration, Seller and Purchaser shall perform such other acts and shall
execute, acknowledge and deliver such additional documents as the other Party
may reasonably request to vest in Purchaser all of Seller's right, title,
interest, and enjoyment of the Properties and other assets and rights conveyed
under this Agreement, to carry out the transactions contemplated by this
Agreement and to protect each Party's rights under this Agreement.
22.8 RELATIONSHIP BETWEEN SELLER AND PURCHASER. Purchaser shall not be
considered a successor of Seller for the purpose of any claims or charges for or
arising out of the ownership, use or operation of the Properties prior to the
Closing Date including but not limited to unemployment compensation, worker's
compensation, Fair Labor Standards Act violations, Occupational Safety and
Health Act violations, Equal Employment Opportunity violations, or any similar
federal, state or local statutes or regulations.
22.9 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the benefit
of the Parties hereto and their respective successors and assigns.
22.10 EXPENSES. Except as otherwise specifically provided for herein, each Party
hereto shall bear all expenses incurred by it in connection with this Agreement,
including, without limitation, the charges of its counsel, accountants,
consultants, and other experts.
22.11 TIME OF THE ESSENCE. Unless otherwise expressly provided, time is of the
essence in the performance of all obligations set forth herein.
22.12 AUTHORITY TO BIND. The persons executing this Agreement warrant that they
have authority to bind the respective Parties to this Agreement.
22.13 COUNTERPARTS. This Agreement may be executed by the Parties in
counterparts, each of which shall be deemed an original, but such counterparts
together shall constitute one and the same instrument.
22.14 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
rules on the conflicts of law. The Parties hereto irrevocably submit to the
exclusive jurisdiction of the United States District for the Southern District
of New York for all purposes under this Agreement, except for those matters over
which said court does not have subject matter jurisdiction, in which case the
Parties irrevocably submit to the exclusive jurisdiction of the Supreme Court of
New York County, New York.
22.15 NO THIRD PARTY BENEFICIARY. Nothing herein shall be deemed to express any
intent to create third party beneficiary rights in favor of any person or
entity, as Seller and Purchaser specifically state and agree that no such intent
exists.
22.16 NO RECORDING OF THIS AGREEMENT. Prior to the Closing, neither Party shall
record this Agreement with any County Clerk or other governmental office. If
either Party records this Agreement, it shall, at the option of the other Party,
be ipso facto null and void and of no further force.
22.17 1031 EXCHANGE. Seller may require Purchaser, pursuant to Section 1031 of
the Internal Revenue Code of 1986, as amended, to pay the Purchase Price to a
trust or intermediary party designated by Seller, in order that Seller may
participate in a tax-deferred exchange of like-kind property. Such election
shall be made, if at all, by notice to Purchaser not later than ten (10) days
prior to the Closing Date. The Parties agree to execute such agreements and
other documents as may be necessary to complete and otherwise effectuate
Seller's tax-deferred exchange, provided that (a) Purchaser's obligations
hereunder shall not be increased; (b) such documents shall not modify
Purchaser's representations, warranties or obligations hereunder; (c) the
Purchase Price paid by Purchaser shall not be different from that which
Purchaser would have paid pursuant to Section 3.1, (d) Purchaser shall incur no
additional cost, expense or liability as a result of its cooperation in such
exchange; and (e) Seller shall indemnify and hold harmless Purchaser for
additional expenses, including, but not limited to, taxes and closing costs, and
any cost or expense (including reasonable counsel fees) which Purchaser may
suffer, sustain or become subject to as a result of the Purchase Price being
paid to a trust or intermediary party rather than to Seller and the trust's or
intermediary's subsequent use of the Purchase Price.
22.18 SEVERABILITY. If any provision in this Agreement shall for any reason be
adjudged by any court OF competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or invalidate the remainder of this
Agreement, but shall be confined in its operation to the provision of this
Agreement directly involved in the controversy in which such judgment shall have
been rendered.
22.19 WAIVER. Any of the terms and conditions of this Agreement may be waived at
any time and from time to time, in writing, by such Parties as are entitled to
the benefit of such terms and conditions; provided, however, that except as
otherwise specifically provided in this Agreement, no failure or delay on the
part of either Party in exercising any of its respective rights under this
Agreement upon any failure by the other Party to perform or observe any
condition, covenant or provision of this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such rights preclude
any other or further exercise thereof or the exercise of any other rights under
this Agreement. No waiver or release of any of the terms, conditions, or
provisions of this Agreement shall be valid or asserted or relied upon by either
Party or offered in any judicial proceeding or otherwise, unless the same is in
writing, and duly executed by the waiving or releasing Party.
IN WITNESS WHEREOF, this Agreement has been executed by Seller and Purchaser on
the dates set forth below but effective as of the Effective Date.
MOBIL OIL, CORPORATION TOSCO CORPORATION
a New York corporation a Nevada corporation
By:__________________________ By:________________________
Name:________________________ Name: Wilkes McClave
Title:_______________________ Title: Senior Vice President
Date:________________________ Date:______________________