GLOBAL PARTNERS LP CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
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Exhibit 10.3
GLOBAL PARTNERS LP
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement, dated [ ], 2005, is entered into by and among GLOBAL GP LLC, a Delaware limited liability company ("GP LLC"), GLOBAL PARTNERS LP, a Delaware limited partnership ("MLP"), GLOBAL OPERATING LLC, a Delaware limited liability company ("OLLC"), GLOBAL COMPANIES LLC, a Delaware limited liability company ("Global"), GLOBAL MONTELLO GROUP LLC, a Delaware limited liability company ("GMG"), CHELSEA SANDWICH LLC, a Delaware limited liability company ("Chelsea LLC"), GLOBAL PETROLEUM CORP., a Massachusetts corporation ("GPC"), XXXXX HOLDINGS LLC, a Delaware limited liability company ("Xxxxx"), XXXXX HOLDINGS II LLC, a Delaware limited liability company ("Xxxxx XX"), CHELSEA TERMINAL LIMITED PARTNERSHIP, a Massachusetts limited partnership ("Chelsea LP"), SANDWICH TERMINAL, L.L.C., a Massachusetts limited liability company ("Sandwich") and MONTELLO OIL CORPORATION, a New Jersey corporation ("Montello"). The above-named entities are sometimes referred to in this Agreement each as a "Party" and collectively as the "Parties." Capitalized terms used herein shall have the meanings assigned to such terms in Section 1.1.
RECITALS:
WHEREAS, GPC and GP LLC have formed MLP pursuant to the Delaware Revised Uniform Limited Partnership Act (the "Delaware LP Act") for the purpose of engaging in any business activity that is approved by GP LLC and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware LP Act.
WHEREAS, in order to accomplish the objectives and purposes in the preceding recital, each of the following actions have been taken prior to the date hereof:
1. GPC formed GP LLC under the terms of the Delaware Limited Liability Company Act (the "Delaware LLC Act") and contributed $1,000 to GP LLC in exchange for all of the membership interests in GP LLC.
2. GP LLC and GPC formed MLP under the terms of the Delaware LP Act and GP LLC contributed $40 to MLP in exchange for a 2% general partner interest in MLP and GPC contributed $1,960 to MLP in exchange for a 98% limited partner interest in MLP.
3. MLP formed OLLC under the terms of the Delaware LLC Act and MLP contributed $1,000 to OLLC in exchange for all of the membership interests in OLLC.
WHEREAS, concurrently with the consummation of the transactions contemplated hereby, each of the following matters shall occur:
- (a)
- GPC
will receive $[ ];
- (b)
- Montello
will receive $[ ];
- (c)
- Xxxxx
will receive $[ ];
- (d)
- Xxxxx
XX will receive $[ ];
- (e)
- Chelsea
LP will receive $[ ]; and
- (f)
- Sandwich will receive $[ ].
1. Global, GMG and Chelsea LLC will distribute [$37,000,000] in cash, receivables and other working capital assets, other than inventory ("Working Capital Assets"), to GPC, Xxxxxxxx, Xxxxx, Xxxxx XX, Chelsea LP and Sandwich (the "Owners") as follows:
2. GPC, Xxxxxxxx, Xxxxx and Xxxxx XX will convey a [ ]%, [ ]%, [ ]% and [ ]%, respectively, membership interest in Global to GP LLC in exchange for a [ ]%, [ ]%, [ ]% and [ ]%, respectively, membership interest in GP LLC. Such membership interests in Global
have an aggregate value equal to 2% of the equity value of MLP at the closing of the transactions contemplated by this Agreement and shall be referred to herein as the "Global Interests."
3. GMG will convey all its right, title and interest in the Qualifying Income Assets to Global as a capital contribution on behalf of GPC, Xxxxxxxx, Xxxxx and Xxxxx XX.
4. GP LLC will convey the Global Interests to MLP in exchange for (a) a continuation of its 2% general partner interest in MLP and (b) the issuance of the IDRs.
5. The Owners will convey their remaining membership interests in Global, GMG and Chelsea LLC (the "Operating Subsidiaries") to MLP in exchange for (a) [742,424] Common Units representing a [6.4] % limited partner interest in MLP, of which (i) GPC will receive [ ] Common Units, (ii) Montello will receive [ ] Common Units, (iii) Xxxxx will receive [ ] Common Units, (iv) Xxxxx XX will receive [ ] Common Units, (v) Chelsea LP will receive [ ] Common Units and (vi) Sandwich will receive [ ] Common Units, (b) [5,642,424] Subordinated Units representing a [49.0]% limited partner interest in MLP, of which (i) GPC will receive [ ] Subordinated Units, (ii) Montello will receive [ ] Subordinated Units, (iii) Xxxxx will receive [ ] Subordinated Units, (iv) Xxxxx XX will receive [ ] Subordinated Units, (v) Chelsea LP will receive [ ] Subordinated Units and (vi) Sandwich will receive [ ] Subordinated Units, and (c) agreement by MLP to assume and repay any outstanding indebtedness under the GPC Term Loan.
6. In connection with MLP's initial public offering (the "Offering"), the public, through the Underwriters, will contribute [$98,000,000] in cash to MLP, less the Underwriters' discount of $[ ], in exchange for [4,900,000] Common Units representing a [42.6]% limited partner interest in MLP.
7. The New Credit Facility will be entered into by and among the parties thereto at which time borrowings under the New Credit Facility will be used to repay any outstanding borrowings under the Old Credit Facility.
8. MLP will convey all of its membership interests in the Operating Subsidiaries to OLLC as a capital contribution.
9. MLP will (a) pay or cause to be paid approximately $[3,500,000] of offering expenses (excluding the Underwriters' discount) in connection with the Offering of the Common Units, (b) repay approximately $[51,000,000] of outstanding indebtedness under the GPC Term Loan and (c) contribute its remaining cash of approximately $[37,000,000] to OLLC as a capital contribution.
10. OLLC will convey approximately $[37,000,000] to the Operating Subsidiaries as capital contributions, which will use the funds to repay approximately $[37,000,000] of outstanding borrowings under the New Credit Facility.
11. Global will convey all of its right, title and interest in the Non-Qualifying Income Assets to GMG as a capital contribution on behalf of OLLC.
12. GMG will, pursuant to the terms of the Delaware LLC Act and the Delaware General Corporation Law (the "Delaware GCL"), convert to Global Montello Group Corp., a Delaware corporation ("GMGC").
13. To the extent the Underwriters exercise their over-allotment option, MLP will use the net proceeds to redeem from the Owners a number of Common Units equal to those sold pursuant to the over-allotment option.
14. The organizational documents of the Parties will be amended and restated as necessary to reflect the applicable matters set forth above and as contained in this Agreement.
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NOW, THEREFORE, in consideration of their mutual undertakings and agreements hereunder, the Parties undertake and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Terms. The following defined terms shall have the meanings given below:
"Agreement" means this Contribution, Conveyance and Assumption Agreement.
"Assets" means [all right, title and interest of GMG and Global in and to the Qualifying Income Assets and the Non-Qualifying Income Assets, respectively, whether tangible or intangible, whether real, personal or mixed, whether accrued or contingent, and wherever located].
"Chelsea LLC" has the meaning as set forth in the opening paragraph of this Agreement.
"Chelsea LP" has the meaning as set forth in the opening paragraph of this Agreement.
"Code" means Internal Revenue Code of 1986, as amended.
"Common Units" has the meaning as set forth in the Partnership Agreement.
"Delaware GCL" has the meaning as set forth in the Recitals of this Agreement.
"Delaware LLC Act" has the meaning as set forth in the Recitals of this Agreement.
"Delaware LP Act" has the meaning as set forth in the Recitals of this Agreement.
"Effective Time" means [8:00 a.m.] Eastern Daylight Time on [ ], 2005.
"Xxxx Hes" means Xxxx Hes Corp., a Delaware corporation.
"Global" has the meaning as set forth in the opening paragraph of this Agreement.
"Global Interests" has the meaning as set forth in the Recitals of this Agreement.
"GMG" has the meaning as set forth in the opening paragraph of this Agreement.
"GMGC" has the meaning as set forth in the Recitals of this Agreement.
"GP LLC" has the meaning as set forth in the opening paragraph of this Agreement.
"GPC" has the meaning as set forth in the opening paragraph of this Agreement.
"GPC Term Loan" means that Term Loan Agreement dated as of July 2, 2004 by and among GPC, as the borrower, those entities identified as guarantors and Bank of America, N.A. and the other lending institutions listed on Schedule 1 thereto and Bank of America, N.A., as agent.
"IDR" has the same meaning as "Incentive Distribution Right" as set forth in the Partnership Agreement.
"Xxxxx" has the meaning as set forth in the opening paragraph of this Agreement.
"Xxxxx XX" has the meaning as set forth in the opening paragraph of this Agreement.
"MLP" has the meaning as set forth in the opening paragraph of this Agreement.
"Montello" has the meaning as set forth in the opening paragraph of this Agreement.
"New Credit Facility" means that Credit Agreement dated as of [ ], 2005, among OLLC, Global, GMG, GMGC, Xxxx Hes and Chelsea LLC, as borrowers, MLP and GP LLC as initial guarantors, each lender from time to time party thereto and Bank of America, N.A., as administrative agent.
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"Non-Qualifying Income Assets" means those assets that do not generate "qualifying income" as defined in Section 7704 of the Code.
"Non-Qualifying Income Liabilities" means all liabilities arising out of or related to the ownership of the Non-Qualifying Income Assets to the extent arising or accruing on and after the Effective Time, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of Global or its affiliates.
"Offering" has the meaning as set forth in the Recitals of this Agreement.
"Old Credit Facility" means that Eighth Amended and Restated Revolving Credit Agreement dated as of July 1, 2003 by and among Global, GMG, Xxxx Hes, Chelsea LLC and Fleet National Bank and the other lending institutions listed on Schedule 1 thereto and Fleet National Bank, as agent, as amended.
"OLLC" has the meaning as set forth in the opening paragraph of this Agreement.
"Operating Subsidiaries" has the meaning as set forth in the Recitals of this Agreement.
"Owners" has the meaning as set forth in the Recitals of this Agreement.
"Party" or "Parties" has the meaning as set forth in the opening paragraph of this Agreement.
"Qualifying Income Assets" means those assets that generate "qualifying income" as defined in Section 7704 of the Code.
"Qualifying Income Liabilities" means all liabilities arising out of or related to the ownership of the Qualifying Income Assets to the extent arising or accruing on and after the Effective Time, whether known or unknown, accrued or contingent, and whether or not reflected on the books and records of GMG or its affiliates.
"Sandwich" has the meaning as set forth in the opening paragraph of this Agreement.
"Subordinated Units" has the meaning as set forth in the Partnership Agreement.
"Underwriters" means Xxxxxx Brothers Inc., KeyBanc Capital Markets, a Division of McDonald Investments Inc., Xxxxxxx Xxxxx & Associates, Inc., RBC Capital Markets Corporation and Banc of America Securities LLC.
"Working Capital Assets" has the meaning as set forth in the Recitals of this Agreement.
ARTICLE II
CONTRIBUTIONS, ACKNOWLEDGMENTS AND DISTRIBUTIONS
Section 2.1 Distribution of Working Capital Assets to the Owners.
(a) The Parties hereby acknowledge the distribution by Global to GPC, Xxxxxxxx, Xxxxx and Xxxxx XX and the receipt by GPC, Xxxxxxxx, Xxxxx and Xxxxx XX of $[ ], $[ ], $[ ] and $[ ], respectively;
(b) The Parties hereby acknowledge the distribution by GMG to GPC, Xxxxxxxx, Xxxxx and Xxxxx XX and the receipt by GPC, Xxxxxxxx, Xxxxx and Xxxxx XX of $[ ], $[ ], $[ ] and $[ ], respectively; and
(c) The Parties hereby acknowledge the distribution by Chelsea LLC to Chelsea LP, Sandwich, Xxxxx and Xxxxx XX and the receipt by Chelsea LP, Sandwich, Xxxxx and Xxxxx XX of $[ ], $[ ], $[ ] and $[ ], respectively.
Section 2.2 Contribution of Global Interests by GPC, Xxxxxxxx, Xxxxx and Xxxxx XX to GP LLC. GPC, Xxxxxxxx, Xxxxx and Xxxxx XX hereby grant, contribute, bargain, convey, assign, transfer, set over
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and deliver to GP LLC, its successors and assigns, for its and their own use forever, the Global Interests in exchange for a [ ]%, [ ] %, [ ]% and [ ]%, respectively, membership interest in GP LLC, and GP LLC hereby accepts the Global Interests as a contribution to the capital of GP LLC.
Section 2.3 Contribution of Qualifying Income Assets by GMG to Global. GMG hereby grants, contributes, bargains, conveys, assigns, transfers, sets over and delivers to Global, its successors and assigns, for its and their own use forever, all of its right, title and interest in and to the Qualifying Income Assets, and Global hereby accepts such assets as a contribution to the capital of Global on behalf of GPC, Xxxxxxxx, Xxxxx and Xxxxx XX.
TO HAVE AND TO HOLD the Qualifying Income Assets unto Global, its successors and assigns, together with all and singular the rights and appurtenances thereto in any way belonging, subject, however, to the terms and conditions stated in this Agreement, forever.
Section 2.4 Contribution of Global Interests by GP LLC to MLP. GP LLC hereby grants, contributes, bargains, conveys, assigns, transfers, sets over and delivers to MLP, its successors and assigns, for its and their own use forever, the Global Interests in exchange for (a) a continuation of its 2% general partner interest in MLP and (b) the issuance of the IDRs, and MLP hereby accepts the Global Interests as a contribution to the capital of MLP.
Section 2.5 Contribution of Interests in Operating Subsidiaries by the Owners to MLP. The Owners hereby grant, contribute, bargain, convey, assign, transfer, set over and deliver to MLP, its successors and assigns, for its and their own use forever, all remaining membership interests in the Operating Subsidiaries in exchange for (a) [742,424] Common Units representing a [6.4]% limited partner interest in MLP, of which (i) GPC receives [ ] Common Units, (ii) Montello receives [ ] Common Units, (iii) Xxxxx receives [ ] Common Units, (iv) Xxxxx XX receives [ ] Common Units, (v) Chelsea LP receives [ ] Common Units and (vi) Sandwich receives [ ] Common Units, (b) [5,642,424] Subordinated Units representing a [49.0]% limited partner interest in MLP, of which (i) GPC receives [ ] Subordinated Units, (ii) Montello receives [ ] Subordinated Units, (iii) Xxxxx receives [ ] Subordinated Units, (iv) Xxxxx XX receives [ ] Subordinated Units, (v) Chelsea LP receives [ ] Subordinated Units and (vi) Sandwich receives [ ] Subordinated Units, and (c) agreement by MLP to assume and repay any outstanding indebtedness under the GPC Term Loan, and MLP hereby accepts such membership interests in Operating Subsidiaries as a contribution to the capital of MLP.
Section 2.6 Public Cash Contribution. The Parties acknowledge a cash contribution by the public through the Underwriters to MLP of $[98,000,000] ($[91,500,000] after the Underwriters' discount of $[6,500,000]) in exchange for [4,900,000] Common Units representing a [42.6]% interest in MLP.
Section 2.7 Contribution of Interests in Operating Subsidiaries by MLP to OLLC. MLP hereby grants, contributes, bargains, conveys, assigns, transfers, sets over and delivers to OLLC, its successors and assigns, for its and their own use forever, all membership interests in the Operating Subsidiaries, and OLLC hereby accepts such membership interests in Operating Subsidiaries as a contribution to the capital of OLLC.
Section 2.8 Payment of Transaction Expenses and Outstanding Indebtedness by MLP; Cash Contribution by MLP to OLLC. The Parties acknowledge (a) the payment by MLP, in connection with the transactions contemplated hereby, of transaction expenses in the amount of approximately $[3,500,000] (exclusive of the Underwriters' discount), (b) the repayment by MLP of approximately $[51,000,000] of outstanding indebtedness under the GPC Term Loan and (c) the contribution by MLP of its remaining cash of approximately $[37,000,000] to OLLC as a capital contribution.
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Section 2.9 OLLC Cash Contribution to Operating Subsidiaries.
(a) The Parties acknowledge the contribution by OLLC to Global and the receipt by Global of approximately $[ ] in cash;
(b) The Parties acknowledge the contribution by OLLC to GMG and the receipt by GMG of approximately $[ ] in cash; and
(c) The Parties acknowledge the contribution by OLLC to Chelsea LLC and the receipt by Chelsea LLC of approximately $[ ] in cash.
The above contributions have been made to repay approximately $[37,000,000] of outstanding borrowings under the New Credit Facility. Each of the Parties acknowledges that the amounts acknowledged as being contributed under this Section 2.9 have been used to repay approximately $[37,000,000] of outstanding borrowings under the New Credit Facility.
Section 2.10 Contribution of Non-Qualifying Income Assets by Global to GMG. Global hereby grants, contributes, bargains, conveys, assigns, transfers, sets over and delivers to GMG, its successors and assigns, for its and their own use forever, all of its right, title and interest in and to the Non-Qualifying Income Assets, and GMG hereby accepts such assets as a contribution to the capital of GMG.
TO HAVE AND TO HOLD the Non-Qualifying Income Assets unto GMG, its successors and assigns, together with all and singular the rights and appurtenances thereto in any way belonging, subject, however, to the terms and conditions stated in this Agreement, forever.
Section 2.11 Conversion of GMG. GMG has adopted a certificate of conversion pursuant to Section [265] of the Delaware GCL and Section [18-216] of the Delaware LLC Act and has filed a certificate of conversion and certificate of incorporation with the Secretary of State of the State of Delaware which filings shall convert (upon such filing or the effective time stated therein) GMG into GMGC, having Global as its sole stockholder.
Section 2.12 Exercise of the Over-Allotment Option. The Parties acknowledge that in the event the Underwriters exercise their over-allotment option, MLP shall use any net proceeds therefrom to redeem from the Owners a number of Common Units held by the Owners equal to the number of Common Units issued upon exercise of the over-allotment option, at a price per Common Unit equal to the net proceeds per Common Unit received by MLP after the Underwriters' discount but before other expenses.
ARTICLE III
ASSUMPTIONS OF CERTAIN LIABILITIES
Section 3.1 Assumption of Qualifying Income Liabilities by Global. In connection with the contribution and transfer by GMG of the Qualifying Income Assets to Global, as set forth in Section 2.3 above, Global hereby assumes and agrees to duly and timely pay, perform and discharge the Qualifying Income Liabilities, to the full extent that GMG has been heretofore or would have been in the future obligated to pay, perform and discharge the Qualifying Income Liabilities were it not for the execution and delivery of this Agreement; provided, however, that said assumption and agreement to duly and timely pay, perform and discharge the Qualifying Income Liabilities shall not (a) increase the obligation of Global with respect to the Qualifying Income Liabilities beyond that of GMG, (b) waive any valid defense that was available to GMG with respect to the Qualifying Income Liabilities or (c) enlarge any rights or remedies of any third party, if any, under any of the Qualifying Income Liabilities.
Section 3.2 Assumption of GPC Term Loan by MLP. In connection with the contribution and transfer by the Owners of interests in the Operating Subsidiaries to MLP, as set forth in Section 2.5
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above, MLP hereby assumes and agrees to duly and timely pay, perform and discharge the GPC Term Loan, to the full extent that the parties thereto have been heretofore or would have been in the future obligated to pay, perform and discharge the GPC Term Loan were it not for the execution and delivery of this Agreement; provided, however, that said assumption and agreement to duly and timely pay, perform and discharge the GPC Term Loan shall not (a) increase the obligation of MLP with respect to the GPC Term Loan beyond that of the parties thereto, (b) waive any valid defense that was available to the parties thereto with respect to the GPC Term Loan or (c) enlarge any rights or remedies of any third party, if any, under the GPC Term Loan.
Section 3.3 Assumption of Non-Qualifying Income Liabilities by GMG. In connection with the contribution and transfer by Global of the Non-Qualifying Income Assets to GMG, as set forth in Section 2.9 above, GMG hereby assumes and agrees to duly and timely pay, perform and discharge the Non-Qualifying Income Liabilities, to the full extent that Global has been heretofore or would have been in the future obligated to pay, perform and discharge the Non-Qualifying Income Liabilities were it not for the execution and delivery of this Agreement; provided, however, that said assumption and agreement to duly and timely pay, perform and discharge the Non-Qualifying Income Liabilities shall not (a) increase the obligation of GMG with respect to the Non-Qualifying Income Liabilities beyond that of Global, (b) waive any valid defense that was available to Global with respect to the Non-Qualifying Income Liabilities or (c) enlarge any rights or remedies of any third party, if any, under any of the Non-Qualifying Income Liabilities.
ARTICLE IV
TITLE MATTERS
Section 4.1 Encumbrances.
(a) Except to the extent provided in any other document executed in connection with this Agreement or the Offering, the contribution and conveyance (by operation of law or otherwise) of the Assets as reflected in this Agreement are made expressly subject to all recorded and unrecorded liens, encumbrances, agreements, defects, restrictions, adverse claims and all laws, rules, regulations, ordinances, judgments and orders of governmental authorities or tribunals having or asserting jurisdictions over the Assets and operations conducted thereon or in connection therewith, in each case to the extent the same are valid and enforceable and affect the Assets, including all matters that a current survey or visual inspection of the Assets would reflect.
(b) To the extent that certain jurisdictions in which the Assets are located may require that documents be recorded in order to evidence the transfers of title reflected in this Agreement, then the provisions set forth in Section 4.1(a) immediately above shall also be applicable to the conveyances under such documents.
Section 4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales Laws.
(a) EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING, THE PARTIES ACKNOWLEDGE AND AGREE THAT NONE OF THE PARTIES HAS MADE, DOES NOT MAKE, AND EACH SUCH PARTY SPECIFICALLY NEGATES AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST OR PRESENT, REGARDING (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE ASSETS INCLUDING THE WATER, SOIL, GEOLOGY OR ENVIRONMENTAL CONDITION OF THE ASSETS GENERALLY OR INCLUDING THE PRESENCE OR LACK OF HAZARDOUS SUBSTANCES OR OTHER MATTERS ON THE ASSETS, (B) THE INCOME TO BE DERIVED FROM THE ASSETS, (C) THE SUITABILITY OF THE ASSETS FOR ANY AND ALL ACTIVITIES AND USES THAT
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MAY BE CONDUCTED THEREON, (D) THE COMPLIANCE OF OR BY THE ASSETS OR THEIR OPERATION WITH ANY LAWS (INCLUDING ANY ZONING, ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS), OR (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE ASSETS. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING, THE PARTIES ACKNOWLEDGE AND AGREE THAT EACH HAS HAD THE OPPORTUNITY TO INSPECT THE RESPECTIVE ASSETS, AND EACH IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE RESPECTIVE ASSETS AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY ANY OF THE PARTIES. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING, NONE OF THE PARTIES IS LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE ASSETS FURNISHED BY ANY AGENT, EMPLOYEE, SERVANT OR THIRD PARTY. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING, EACH OF THE PARTIES ACKNOWLEDGES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CONTRIBUTION OF THE ASSETS AS PROVIDED FOR HEREIN IS MADE IN AN "AS IS", "WHERE IS" CONDITION WITH ALL FAULTS, AND THE ASSETS ARE CONTRIBUTED AND CONVEYED SUBJECT TO ALL OF THE MATTERS CONTAINED IN THIS SECTION. THIS SECTION SHALL SURVIVE SUCH CONTRIBUTION AND CONVEYANCE OR THE TERMINATION OF THIS AGREEMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY THE PARTIES AFTER DUE CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE ASSETS THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING.
(b) The contributions of the Assets made under this Agreement are made with full rights of substitution and subrogation of the respective Parties receiving such contributions, and all persons claiming by, through and under such Parties, to the extent assignable, in and to all covenants and warranties by the predecessors-in-title of the Parties contributing the Assets, and with full subrogation of all rights accruing under applicable statutes of limitation and all rights of action of warranty against all former owners of the Assets.
(c) Each of the Parties agrees that the disclaimers contained in this Section 4.2 are "conspicuous" disclaimers. Any covenants implied by statute or law by the use of the words "grant," "contribute," "convey," "bargain," "assign," "transfer," "deliver" or "set over" or any of them or any other words used in this Agreement are hereby expressly disclaimed, waived or negated.
(d) Each of the Parties hereby waives compliance with any applicable bulk sales law or any similar law in any applicable jurisdiction in respect of the transactions contemplated by this Agreement.
ARTICLE V
FURTHER ASSURANCES
From time to time after the date hereof, and without any further consideration the Parties agree to execute, acknowledge and deliver all such additional deeds, assignments, bills of sale, conveyances, instruments, notices, releases, acquittances and other documents, and will do all such other acts and
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things, all in accordance with applicable law, as may be necessary or appropriate to more fully and effectively carry out the purposes and intent of this Agreement.
ARTICLE VI
EFFECTIVE TIME
Notwithstanding anything contained in this Agreement to the contrary, none of the provisions of Article II or Article III of this Agreement shall be operative or have any effect until the Effective Time, at which time all the provisions of Article II or Article III of this Agreement shall be effective and operative in accordance with Article VII, without further action by any Party.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Order of Completion of Transactions. The transactions provided for in Article II of this Agreement shall be completed immediately following the Effective Time in the order set forth in Article II. The transactions provided for in Article III of this Agreement shall be completed simultaneously with the transactions provided for in Article II of this Agreement.
Section 7.2 Costs. Except for the transaction expenses set forth in Section 2.8, OLLC shall pay all expenses, fees and costs, including sales, use and similar taxes arising out of the contributions, conveyances and deliveries to be made hereunder, and shall pay all documentary, filing, recording, transfer, deed and conveyance taxes and fees required in connection therewith. In addition, OLLC shall be responsible for all costs, liabilities and expenses (including court costs and reasonable attorneys' fees) incurred in connection with the implementation of any conveyance or delivery pursuant to Article V of this Agreement.
Section 7.3 Headings; References; Interpretation. All Article and Section headings in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any of the provisions hereof. The words "hereof," "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement. All references herein to Articles and Sections shall, unless the context requires a different construction, be deemed to be references to the Articles and Sections of this Agreement, respectively. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The terms "include," "includes," "including" or words of like import shall be deemed to be followed by the words "without limitation."
Section 7.4 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns.
Section 7.5 No Third Party Rights. The provisions of this Agreement are intended to bind the parties signatory hereto as to each other and are not intended to and do not create rights in any other person or confer upon any other person any benefits, rights or remedies and no person is or is intended to be a third party beneficiary of any of the provisions of this Agreement.
Section 7.6 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute one agreement binding on the Parties.
Section 7.7 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts applicable to contracts made and to be performed wholly within such state without giving effect to conflict of law principles thereof.
Section 7.8 Severability. If any of the provisions of this Agreement are held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having
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jurisdiction over the subject matter hereof, such contravention or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be construed as if it did not contain the particular provision or provisions held to be invalid, and an equitable adjustment shall be made and necessary provision added so as to give effect to the intention of the Parties as expressed in this Agreement at the time of execution of this Agreement.
Section 7.9 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the Parties.
Section 7.10 Integration. This Agreement and the instruments referenced herein supersede all previous understandings or agreements among the Parties, whether oral or written, with respect to its subject matter. This document and such instruments contain the entire understanding of the Parties. No understanding, representation, promise or agreement, whether oral or written, is intended to be or shall be included in or form part of this Agreement unless it is contained in a written amendment hereto executed by the Parties after the date of this Agreement.
Section 7.11 Deed; Xxxx of Sale; Assignment. To the extent required and permitted by applicable law, this Agreement shall also constitute a "deed," "xxxx of sale" or "assignment" of the assets and interests referenced herein.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties as of the date first written above.
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GLOBAL PARTNERS LP |
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GLOBAL OPERATING LLC |
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GLOBAL COMPANIES LLC |
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GLOBAL MONTELLO GROUP LLC |
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CHELSEA SANDWICH LLC |
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By: |
||||||
| Name | ||||||
| Title | ||||||
GLOBAL PETROLEUM CORP. |
||||||
By: |
||||||
| Name | ||||||
| Title | ||||||
XXXXX HOLDINGS LLC |
||||||
By: |
||||||
| Name | ||||||
| Title | ||||||
XXXXX HOLDINGS II LLC |
||||||
By: |
||||||
| Name | ||||||
| Title | ||||||
12
CHELSEA TERMINAL LIMITED PARTNERSHIP |
||||||
By: |
CHELSEA TERMINAL CORP., its General Partner |
|||||
By: |
||||||
| Name | ||||||
| Title | ||||||
SANDWICH TERMINAL, L.L.C. |
||||||
By: |
||||||
| Name | ||||||
| Title | ||||||
MONTELLO OIL CORPORATION |
||||||
By: |
||||||
| Name: | ||||||
| Title: | ||||||
13
GLOBAL PARTNERS LP CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
