EXHIBIT 10.53
PURCHASE AND SALE AGREEMENT
BETWEEN
XX. XXXX Y. PARK AND WIFE, XXXXX XXX PARK
AND
PETRO STOPPING CENTERS, L.P.
Dated: October 27, 1997
TABLE OF CONTENTS
PURCHASE AND SALE AGREEMENT
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ARTICLE I.
GENERAL
1.01 Definitions. . . . . . . . . . . . . . . . . . . . . 1
1.02 Agreement to Purchase and Sell . . . . . . . . . . . 4
1.03 Purchase Price . . . . . . . . . . . . . . . . . . . 5
1.04 Assumption of Certain Liabilities; Adjustments
at Closing . . . . . . . . . . . . . . . . . . . . . 6
1.05 Instruments of Transfer; Further Assurances. . . . . 7
1.06 Value Assigned to the Assets . . . . . . . . . . . . 7
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of Seller . . . . . . 7
2.02 Representations and Warranties of Purchaser. . . . . 11
ARTICLE III.
CONDUCT AND TRANSACTIONS PRIOR TO CLOSING
3.01 Access to Records and Properties; Confidentiality. . 13
3.02 Operation of Business. . . . . . . . . . . . . . . . 14
3.03 No Public Announcements. . . . . . . . . . . . . . . 14
3.04 Best Efforts to Satisfy Conditions . . . . . . . . . 15
3.05 Insurance. . . . . . . . . . . . . . . . . . . . . . 15
3.06 Title Commitment, Title Policy and Survey. . . . . . 15
3.07 Update to Seller's Disclosures . . . . . . . . . . . 16
3.08 Assignment by Purchaser. . . . . . . . . . . . . . . 16
3.09 No Business Shutdown or Layoffs. . . . . . . . . . . 17
3.10 Utility Easements. . . . . . . . . . . . . . . . . . 17
3.11 Sign . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE IV.
CONDITIONS OF CLOSING
4.01 Conditions of Obligations of Purchaser . . . . . . . 17
4.02 Conditions of Obligations of Seller. . . . . . . . . 19
4.03 Opportunity to Cure. . . . . . . . . . . . . . . . . 19
ARTICLE V.
CLOSING DATE AND TERMINATION OF AGREEMENT
5.01 Closing Date . . . . . . . . . . . . . . . . . . . . 19
5.02 Termination of Agreement . . . . . . . . . . . . . . 20
ARTICLE VI.
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INDEMNIFICATION
6.01 Indemnity. . . . . . . . . . . . . . . . . . . . . . 21
6.02 Notice, Participation and Duration . . . . . . . . . 22
6.03 Reimbursement. . . . . . . . . . . . . . . . . . . . 22
6.04 No Third Party Beneficiaries . . . . . . . . . . . . 22
ARTICLE VII.
MISCELLANEOUS
7.01 Further Actions. . . . . . . . . . . . . . . . . . . 23
7.02 Broker . . . . . . . . . . . . . . . . . . . . . . . 23
7.03 Expenses . . . . . . . . . . . . . . . . . . . . . . 23
7.04 Entire Agreement . . . . . . . . . . . . . . . . . . 23
7.05 Descriptive Headings; Gender . . . . . . . . . . . . 24
7.06 Notices. . . . . . . . . . . . . . . . . . . . . . . 24
7.07 Governing Law. . . . . . . . . . . . . . . . . . . . 25
7.08 Assignability. . . . . . . . . . . . . . . . . . . . 25
7.09 Waivers and Amendments . . . . . . . . . . . . . . . 25
7.10 Third Party Rights . . . . . . . . . . . . . . . . . 25
7.11 Illegalities . . . . . . . . . . . . . . . . . . . . 25
7.12 Counterparts . . . . . . . . . . . . . . . . . . . . 25
7.13 Employees. . . . . . . . . . . . . . . . . . . . . . 25
7.14 Access to Records. . . . . . . . . . . . . . . . . . 26
7.15 Cost of Litigation . . . . . . . . . . . . . . . . . 26
7.16 Waiver of Trial by Jury. . . . . . . . . . . . . . . 27
7.17 Joint Preparation. . . . . . . . . . . . . . . . . . 27
7.18 Post-Closing Consultation. . . . . . . . . . . . . . 27
APPENDICES
Appendix 1.01-1
Appendix 1.02(b)(1)
Appendix 1.02(b)(4)
Appendix 1.02(b)(7)
Appendix 2.01(b)
Appendix 2.01(e)
Appendix 2.01(f)(2)
Appendix 2.01(g)
EXHIBITS
1.05-1 General Conveyance, Transfer and Assignment
1.05-2 Assumption Agreement
3.08 Exchange Agreement
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered
into as of this 27th day of October, 1997, by and between XX. XXXX Y. PARK AND
WIFE, XXXXX XXX PARK, residents of Albany, Oregon (together, "Purchaser"), and
PETRO STOPPING CENTERS, L.P., a Delaware limited partnership ("Seller"), having
its executive offices in El Paso, Texas.
WHEREAS, Seller desires to sell to Purchaser the real property and certain
of the other assets as described herein constituting the Pear Tree Motel and RV
Park located in Phoenix, Oregon, owned by Seller (such real property and assets
being collectively referred to as the "Business"), and Purchaser desires to
purchase the Business, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual benefits to be derived and
the representations and warranties, conditions and promises herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I.
GENERAL
1.01 Definitions. Unless otherwise stated in this Agreement, the following
terms shall have the following meanings (the following definitions to be equally
applicable to both the singular and plural forms of any of the terms herein
defined):
"AFFILIATE": Any Person that, directly or indirectly, controls, or is
controlled by or under common control with, another Person. For the purposes of
this definition, "control" (including the terms "controlled by" and "under
common control with"), as used with respect to any Person, means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities or by
contract or otherwise.
"AGREEMENT": As defined in the first paragraph hereof.
"ASSETS": As defined in Section 1.02(a).
"ASSUMPTION AGREEMENT": As defined in Section 1.05(b).
"ASSUMED OBLIGATIONS": The duties, obligations, debts and liabilities of
Seller assumed by Purchaser under Section 1.04.
"BUSINESS": As defined in the recitals of this Agreement.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. (S) 9601, et seq.
"CLAIM": As defined in Section 6.02(a).
"CLOSING": As defined in Section 5.01(a).
"CLOSING DATE": As defined in Section 5.01(a).
"COMMITMENT": As defined in Section 3.06(a).
"DAMAGES": As defined in Section 6.01(a).
"DEED": The special warranty deed, in form and substance satisfactory to
Purchaser, by which Seller shall transfer title to the Property to Purchaser.
"EFFECTIVE TIME OF CLOSING": As defined in Section 5.01(b).
"ENVIRONMENTAL LAWS": As defined in Section 2.01(f).
"EQUIPMENT": As defined in Section 1.02(b)(4).
"FIXTURES AND IMPROVEMENTS": As defined in Section 1.02(b)(2).
"GENERAL CONVEYANCE, TRANSFER AND ASSIGNMENT": As defined in Section
1.05(a).
"GOVERNMENTAL BODY": Any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign.
"INDEMNITEE": As defined in Section 6.02(a).
"INDEMNITOR": As defined in Section 6.02(a).
"KNOWN" or "KNOWLEDGE": Whenever a statement regarding the existence or
absence of facts in this Agreement is qualified by a phrase such as "to such
Person's knowledge" or "known to such Person," it is intended by the parties
that the only information to be attributed to such Person is information
actually known to (a) the Person in the case of an individual or (b) in the case
of a corporation or other entity a current officer or employee who devoted
substantive attention to matters of such nature during the ordinary course of
his employment. Unless otherwise provided in this Agreement, no such Person is
represented to have undertaken a separate investigation in connection with the
transactions contemplated hereby to determine the existence or absence of facts
in any statement qualified by "known by" or "to the knowledge of" any Person.
"LETTER OF INTENT": As defined in Section 3.01(b).
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"LIEN": All mortgages, deeds of trust, liens, security interests, pledges,
conditional sale contracts, claims, rights of first refusal, options, charges,
agreements, liberties, easements, rights-of-way, limitations, reservations,
restrictions and other encumbrances of any kind.
"MATERIAL ADVERSE EFFECT": "Material Adverse Effect" means (a) any change,
development or effect (individually or in the aggregate) in the general affairs,
management, business, results of operations, condition (financial or otherwise),
assets, liabilities or prospects (whether or not the result thereof would be
covered by insurance) that would be material and adverse to Seller and
Subsidiary, taken as whole, or (b) any fact or development that would
(individually or in the aggregate), impair Seller's ability or obligations to
perform on a timely basis any material obligations it has under this Agreement.
"OPERATIVE DOCUMENTS": This Agreement and all other agreements,
instruments, documents, and certificates executed and delivered by or on behalf
of Seller or Purchaser at or before the Closing pursuant to this Agreement.
"ORDER": Any order, writ, injunction, decree, judgment, award or
determination of any court or Governmental Body.
"PERMITTED ENCUMBRANCES": (a) The Liens described or referred to in
Appendix 1.01-1 to this Agreement, (b) Liens for current Taxes and assessments
not yet due and payable, including, but not limited to, Liens for nondelinquent
ad valorem Taxes, nondelinquent statutory Liens arising other than by reason of
any default on the part of Seller, (c) all matters that shall be considered
"Permitted Exceptions" under Section 3.06(a) of this Agreement, and (d) such
liens, minor imperfections of title, or easements on real property, leasehold
estates, or personalty as do not in any material respect detract from the value
thereof and do not interfere with the present use of the property subject
thereto.
"PERMITTED EXCEPTIONS": As defined in Section 3.06(a).
"PERSON": An individual, partnership, joint venture, corporation, bank,
trust, unincorporated organization or a Governmental Body.
"PROPERTY": As defined in Section 1.02(b)(1).
"PURCHASE PRICE": As defined in Section 1.03(a).
"PURCHASER": As defined in the opening paragraph of this
Agreement.
"PURCHASER INDEMNITEES": As defined in Section 6.01(a).
"PURCHASER REPRESENTATIVE": As defined in Section 3.01(b).
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"RCRA": The Resource Conservation and Recovery Act, as amended, 42 U.S.C.
(S)(S) 6921-6939b.
"REAL PROPERTY": The Property and the Fixtures and Improvements and Realty
Rights pertaining thereto.
"REALTY RIGHTS": As defined in Section 1.02(b)(3).
"SCHEDULED CONTRACTS": As defined in Section 1.02(b)(7).
"SELLER INDEMNITEES": As defined in Section 6.01(b).
"SELLER": As defined in the opening paragraph of this Agreement.
"SURVEY": As defined in Section 3.06(b).
"TAXES": Any federal, state, local or foreign income, sales, real or
personal property or other taxes, assessments, fees, levies, imposts, duties,
deductions or other charges of any nature whatsoever (including without
limitation interest and penalties) imposed by any law, rule or regulation.
"TITLE POLICY": As defined in Section 4.01(c).
"TRANSACTION": The sale and purchase of the Assets, assignment and
assumption of certain liabilities, and performance of covenants, in each case as
contemplated by this Agreement.
1.02 Agreement to Purchase and Sell.
(a) On and subject to the terms and conditions of this Agreement, Seller
agrees to sell, convey, transfer, assign and deliver to Purchaser, and Purchaser
agrees to purchase from Seller, the assets, rights, and properties described in
Section 1.02(b) (all such assets, rights, and properties being herein
collectively referred to as the "Assets" and individually referred to as an
"Asset") free and clear of all Liens other than Permitted Encumbrances.
(b) The Assets shall consist of the assets of the Business at the Effective
Time of Closing described in the following clauses (1) through (8):
(1) Property. The parcels of real property described in Appendix
1.02(b)(1) to this Agreement (the "Property").
(2) Fixtures and Improvements. All estates, rights, titles and
interests in and to all buildings, works, structures, fixtures, landings,
improvements, betterments, installations and additions constructed, erected
or located on or attached or affixed to the Property (the "Fixtures and
Improvements").
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(3) Realty Rights. All estates, rights, titles and interests in and to
all tenements, hereditaments, easements, rights-of-way, rights, licenses,
rights of ingress and egress, privileges and appurtenances belonging,
pertaining or relating to the Property, and the entire right, title and
interest of Seller, if any, in, to and under all streets, ways, alleys,
passages, sewers, sewer rights, ditches, waters, water courses, water
rights and powers, air rights, railroad sidings, minerals, mineral rights
and mineral interests upon, above, in or under the Property.
(4) Equipment. The furniture, furnishings, equipment, machinery,
apparatus, tools, appliances, implements, spare parts, supplies and other
tangible personal property described or listed on an Appendix 1.02(b)(4) to
this Agreement to be delivered by Seller to Purchaser as soon as possible
after the date of this Agreement but no later than 14 days of such date
(the "Equipment").
(5) Permits. All right, title and interest of Seller in, to and under
all Permits relating to the Business or all or any of the Assets.
(6) Goodwill. The goodwill and going concern value of the Business.
(7) Scheduled Contracts. All right, title and interest of Seller in,
to and under the contracts and agreements described in an Appendix
1.02(b)(7) to this Agreement (the "Scheduled Contracts") which shall be
delivered by Seller to Purchaser as soon as possible after the date of this
Agreement but no later than 14 days of such date, and all rights (including
rights of refund and offset), privileges, deposits, claims, causes of
action and options relating or pertaining to the Scheduled Contracts or any
thereof.
(8) Names and Telephone Numbers. The name "Pear Tree Motel and RV
Park" and all rights of Seller to the telephone numbers currently utilized
by those businesses, to the extent that such telephone numbers are not used
by Seller for its truck stop business conducted on property adjacent to the
Property.
1.03 Purchase Price.
The purchase price for the Assets (the "Purchase Price") shall be
$2,280,000, payable to Seller as follows:
(1) $100,000 xxxx xxxxxxx money to be paid to Seller in cash or other
form of immediately available funds by Purchaser upon execution and
delivery of this Agreement and deposited by Seller in escrow with the Title
Company; and
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(2) $2,280,000, including the $100,000 xxxxxxx money, payable upon the
Closing to Seller by wire transfer of immediately available funds pursuant
to written instructions delivered by Seller to Purchaser and Title Company
at least one business day prior to the Closing Date.
1.04 Assumption of Certain Liabilities; Adjustments at Closing.
(a) Purchaser assumes:
(1) the obligations of Seller to perform the Scheduled Contracts
specifically set forth in Appendix 1.02(b)(7) to this Agreement to the
extent the Scheduled Contracts have not been performed at the Effective
Time of Closing; and
(2) ad valorem or similar Taxes upon any of the Assets to be prorated
pursuant to Section 1.04(b).
(b) Seller and Purchaser shall each pay its respective pro rata portion of
all 1997 ad valorem or similar Taxes upon any property included in the Assets.
Seller shall pay to Purchaser at the Closing estimated ad valorem or similar
Taxes for the current year (based on the prior year's Taxes or current year's
Taxes if available) prorated to the date of the Closing; Seller shall make
available to Purchaser copies of all statements and assessments reflecting such
prior year's Taxes. Purchaser shall pay such sums to the appropriate taxing
authorities when due, prior to becoming delinquent. Purchaser shall promptly
forward to Seller after receipt by Purchaser copies of all 1997 Tax assessments
under any such property or lease. If the 1997 Taxes shall be readjusted such
that the amounts payable are greater than the prior year's Taxes, Seller shall
pay its pro rata share of any difference promptly upon written notice of such
Taxes having been paid by Purchaser. If such 1997 Taxes shall be readjusted such
that the amounts payable are less than the prior years' Taxes, Purchaser shall
refund to Seller its pro rata share of such reduction upon notice of such Taxes
having been paid by Purchaser. Except as provided in Section 1.04(a) hereof,
Purchaser shall have no other liability for Taxes payable by Seller (including
income Taxes) relating to the operations of the Business or the transactions
contemplated hereunder.
(c) All other items of income and expense of the Business shall be prorated
between Seller and Purchaser as of the Closing Date, including, without
limitation, utility charges, rents, and advance payments or prepaid amounts
under the Scheduled Contracts. All customer deposits, if any, held by Seller on
the Closing Date will be delivered to Purchaser. Purchaser shall pay Seller in
cash on the Closing Date the amount of (i) any deposits made by Seller under the
Scheduled Contracts, if any, to be retained thereunder after Closing, (ii) any
refunds or offsets owing to Seller under the Scheduled Contracts, and (iii) any
other cash deposits by
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Seller or other rights of Seller to cash payments inuring to the benefit of
Purchaser at and after Closing.
1.05 Instruments of Transfer; Further Assurances. In order to consummate
the transactions contemplated hereby, at the Closing Seller shall execute and
deliver to Purchaser the Deed covering the Real Property, and Seller and
Purchaser shall deliver to each other (a) a completed General Conveyance,
Transfer and Assignment, in the form attached as Exhibit 1.05-1 hereto ("General
Conveyance, Transfer and Assignment"), covering all of the Assets other than the
Real Property, and (b) an Assumption Agreement in the form attached as Exhibit
1.05-2 hereto ("Assumption Agreement"). At the Closing, and at all times
thereafter as may be necessary, Seller shall execute and deliver to Purchaser
(1) such other instruments of transfer as shall be reasonably necessary or
appropriate to vest in Purchaser title to the Assets and to comply with the
purposes and intent of this Agreement and (2) such other instruments as shall be
reasonably necessary or appropriate to evidence the assignment by Seller and
assumption by Purchaser of the Scheduled Contracts, and certain other
liabilities to the extent provided in Section 1.04(a).
1.06 Value Assigned to the Assets. On or before the Closing Date, Purchaser
and Seller shall agree on the proportion of the consideration to be allocated to
each of the Assets purchased pursuant to this Agreement. Purchaser and Sellers
agree that they shall not thereafter take any position or action inconsistent
with such allocation in the filing of any income Tax returns.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.01 Representations and Warranties of Seller. Seller, represents and
warrants to Purchaser that the following are true and correct on and as of the
date of this Agreement and will be true and correct through the Effective Time
of Closing as if made on and as of that date:
(a) Organization and Good Standing of Seller. Seller is a limited
partnership duly organized, validly existing and in good standing under the laws
of the State of Delaware and is qualified to transact business and is in good
standing as a foreign limited partnership in the jurisdictions where it is
required to qualify in order to conduct its businesses as presently conducted
except where the failure to be qualified would not have a Material Adverse
Effect.
Seller has the partnership power and authority to own, lease or operate all
properties and assets now owned, leased or operated by it and to carry on its
businesses as now conducted.
(b) Consents, Authorizations and Binding Effect.
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(1) Seller may execute, deliver and perform this Agreement (including
without limitation execution, delivery and performance of the Operative
Documents to which it is a party) without the necessity of Seller obtaining
any consent, approval, authorization or waiver or giving any notice or
otherwise, except for such consents, approvals, authorizations, waivers and
notices:
(i) which have been obtained and are unconditional and are in
full force and effect and such notices which have been given, or
(ii) which are described on Appendix 2.01(b) to this Agreement.
(2) Seller has the partnership power to enter into this Agreement and
to carry out its respective obligations hereunder. This Agreement has been
duly authorized, executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms, except as may be limited by bankruptcy,
reorganization, fraudulent conveyance, insolvency and similar laws of
general application relating to or affecting the enforcement of rights of
creditors and subject to general principles of equity.
(3) The execution, delivery and performance of this Agreement by
Seller does not and will not:
(i) constitute a violation of its Certificate of Limited
Partnership, as amended, or its Partnership Agreement, as amended,
(ii) result in any Lien against the Assets,
(iii) constitute a violation of any statute, judgment, order,
decree or regulation or rule of any Governmental Body known to Seller
applicable or relating to Seller or the Assets or the Business (except
for those which, singly or in the aggregate, would not create or
result in a Material Adverse Effect), or
(4) Without limiting the foregoing, the execution, delivery and
performance of the Operative Documents, and consummation of the
transactions contemplated thereby, have been duly authorized and approved
by the Board of Directors of Seller.
(c) Title and Condition of Assets. Seller has good and indefeasible title
to the Real Property (in fee simple), and interests in the tangible and
intangible personal property owned by it that comprise the Assets, free and
clear of Liens, other than:
(1) Permitted Encumbrances, and
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(2) Liens which will be released or discharged at or prior to the
Effective Time of Closing.
During the time that Seller has owned the Real Property, no improvement or
structure on the Real Property has been damaged by any casualty or act of God,
or been subject to any condemnation proceedings which, singularly or in the
aggregate, would have a Material Adverse Effect.
Seller has no actual knowledge of material structural defects in any
improvement or structure on the Real Property, and all equipment, electrical
wiring, heating, cooling and plumbing systems for the improvements on the Real
Property are in working order and the balance of the tangible personal property
included in the Assets, including the grounds, are substantially in the
condition that such property was in at the date of the Letter of Intent.
Since the date of the Letter of Intent, Seller has not sold, transferred,
leased, distributed or otherwise disposed of any of the assets used in the
operation of the Business and included in this Transaction, or agreed to do so,
except for the disposition of assets in the ordinary course of business or which
in the reasonable judgment of Seller are not necessary or advisable to the
efficient operations of the Business.
(d) Scheduled Contracts in Full Force and Effect. The Scheduled Contracts
are valid, binding and in full force and effect, have not been amended or
supplemented in any manner or respect except as disclosed on Appendix 1.02(b)(7)
to this Agreement, and upon assignment and assumption, with applicable consents
if necessary, will be enforceable by Purchaser in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, and similar laws of general application relating to or affecting the
enforcement of rights of creditors and subject to general principles of equity.
There are no defaults by Seller thereunder and Seller knows of no defaults
thereunder by any other party thereto, and, to Sellers' knowledge, no event has
occurred that with the lapse of time or action or inaction by any party thereto
would result in a violation thereof or a default thereunder.
(e) Real Property.
(1) Seller has not received notice of any Liens to be assessed against
the Real Property by any Governmental Body other than Liens for current
year Taxes upon the Property and Assets not yet due and payable. Seller has
not received notice from any Governmental Body that the Real Property
violates in any material respect any provisions of any applicable building
code, fire, health or safety regulations, or other governmental ordinances,
orders or regulations.
(2) To the best of Seller's knowledge, there is no pending or
threatened condemnation or similar proceeding or assessment affecting the
Real Property, or any part thereof.
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(3) The Real Property has full and free access to and from public
highways, streets or roads and, to the best knowledge and belief of Seller,
there is no pending or threatened proceeding by any Governmental Body which
would impair or result in the termination of such access, except as the
proceedings described on Appendix 2.01(e) to this Agreement may impair or
result in the termination of such access.
(f) Environmental Matters.
(1) No portion of the Real Property, during the period of Seller's
ownership of the Real Property, has ever been used as a dump site for
trash, garbage, junk, toxic or hazardous waste, within the meaning of
applicable Environmental Laws, or as a sanitary or other landfill, nor has
the Real Property during the period of Seller's ownership of the Real
Property ever been used to generate, manufacture, refine, treat, store,
handle or dispose of hazardous waste or toxic materials, within the meaning
of applicable Environmental Laws.
(2) Seller has not received any summons, directive, citation, letter
or other written communication of any kind from any Governmental Body
concerning any action on the part of Seller resulting in the releasing,
spilling, leaking, pumping, pouring, emitting, emptying or dumping of
hazardous substances, hazardous waste or toxic materials, within the
meaning of applicable Environmental Laws, into waters on the Real Property
or property adjacent thereto or onto the Real Property or property adjacent
thereto, except as may be described in Appendix 2.01(f) to this Agreement.
As used in this Agreement, "Environmental Laws" means any applicable federal,
state, or local laws, rules, or regulations, common law or strict liability
provisions, and any judicial or administrative interpretations thereof,
including any judicial or administrative orders or judgments, relating to
health, safety, industrial hygiene, pollution or environmental matters in effect
as of the date of this Agreement.
(g) Financial Information. Seller has delivered to Purchaser the financial
information pertaining to the operations of the Business described on Appendix
2.01(g) to this Agreement and will deliver to Purchaser income and expense
statements for the months of October and November 1997, to the extent that same
are available prior to Closing. Such financial information that has been or will
be delivered is in accordance with the books and records of Seller, and the
copies thereof furnished to Purchaser are and will be true, correct and complete
copies thereof; such financial information fairly presents and will fairly
present in all material respects the operations of the Business for the periods
covered thereby. Except as described in Appendix 2.01(g) since September 30,
1997, there has been no material adverse change in the results of operations of
the Business.
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2.02 Representations and Warranties of Purchaser. Purchaser jointly and
severally represents and warrants to Seller that the following are true and
correct on and as of the date of this Agreement and will be true and correct
through the Effective Time of Closing as if made on and as of that date:
(a) Purchasers are husband and wife and have the individual capacity to
enter into this Agreement and to carry out their respective obligations
hereunder.
(b) Purchaser may execute, deliver and perform this Agreement without the
necessity of Purchaser obtaining any consents approval, authorization or waiver
or giving any notice or otherwise, except for such consents, approvals,
authorizations, waivers and notices which have been obtained and are
unconditional and are in full force and effect and such notices which have been
given.
(c) The execution, delivery and performance of this Agreement do not and
will not
(1) constitute a violation of any statute, judgment, order, decree or
regulation or rule of any court, governmental authority or arbitrator
applicable or relating to Purchaser, or
(2) constitute a default under any contract to which Purchaser is a
party except where such default would not have a Material Adverse Effect
upon the ability of Purchaser to perform its obligations under this
Agreement.
(d) This Agreement has been duly authorized, executed and delivered by
Purchaser. This Agreement constitutes the legal, valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except as may be limited by
bankruptcy, reorganization, insolvency and similar laws of general application
relating to or affecting the enforcement of rights of creditors and subject to
general principles of equity.
(e) PURCHASER ACKNOWLEDGES THAT IT HAS SUFFICIENT KNOWLEDGE AND EXPERTISE
IN BUSINESS AND FINANCIAL MATTERS TO EVALUATE THE MERITS AND RISKS ASSOCIATED
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND THAT THEY HAVE
CONSULTED WITH SUCH ADVISORS TO THEM CONCERNING THE LEGAL, FINANCIAL, TAX AND
OTHER MATTERS CONCERNING THIS TRANSACTION AS PURCHASERS HAVE DEEMED NECESSARY.
PURCHASER HAS MADE ITS DECISION TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE
THE TRANSACTIONS CONTEMPLATED HEREBY WITHOUT RELYING UPON ANY EXPRESS OR IMPLIED
REPRESENTATIONS FROM SELLER EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
SPECIFICALLY, AND WITHOUT LIMITING THE FOREGOING, PURCHASER ACKNOWLEDGES AND
AGREES THAT, EXCEPT AS MAY BE SPECIFICALLY SET FORTH TO THE CONTRARY IN THIS
AGREEMENT, IT IS PURCHASING THE REAL PROPERTY AND OTHER ASSETS IN AN "AS-IS" AND
"WHERE-IS" CONDITION "WITH ALL FAULTS" AND ALL PHYSICAL LATENT OR PATENT
DEFECTS, SPECIFICALLY AND, EXCEPT FOR THE REPRESENTATIONS BY SELLER SPECIFICALLY
SET FORTH IN THIS AGREEMENT, EXPRESSLY WITHOUT WARRANTIES, REPRESENTATIONS OR
GUARANTEES OF ANY
11
KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF: CONDITION; MERCHANTABILITY;
HABITABILITY; FITNESS FOR A PARTICULAR USE; VALUE; PROFITABILITY OR
MARKETABILITY OF ANY OF THE ASSETS. PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR THE
REPRESENTATIONS OF SELLER SPECIFICALLY SET FORTH IN THIS AGREEMENT, PURCHASER IS
NOT RELYING AND HAS NOT RELIED UPON ANY INFORMATION, DOCUMENT, BROCHURE OR OTHER
LITERATURE, MAP, SKETCH, PROJECTION, PROFORMA, STATEMENT, REPRESENTATION,
GUARANTEE OR WARRANTY THAT MAY HAVE BEEN GIVEN BY OR MADE BY OR ON BEHALF OF
SELLER AND THAT IT IS PURCHASER'S SOLE RESPONSIBILITY TO UNDERTAKE SUCH DUE
DILIGENCE AND TO MAKE SUCH LEGAL, FACTUAL AND OTHER INQUIRIES AND INVESTIGATIONS
AS PURCHASER DEEMS NECESSARY, DESIRABLE OR APPROPRIATE WITH RESPECT TO ACQUIRING
THE ASSETS. ON THE CLOSING DATE, PURCHASER HEREBY RELEASES SELLER OF AND FROM
ALL LIABILITIES, OBLIGATIONS AND CLAIMS, KNOWN OR UNKNOWN, THAT PURCHASER MAY
HAVE AGAINST THE SELLER OR THAT ARISE IN THE FUTURE BASED IN WHOLE OR IN PART
UPON THE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL
CONTAMINATION ON OR WITHIN THE PROPERTY AS SUCH TERMS OR CONDITIONS MAY NOW OR
HEREAFTER BE DEFINED OR REGULATED BY ANY ENVIRONMENTAL LAWS INCLUDING, BUT NOT
LIMITED TO CERCLA AND RCRA, OR OTHERWISE, EXCEPT FOR THE INDEMNITY OBLIGATION OF
SELLER SET FORTH IN SECTION 6.01(a) OF THIS AGREEMENT. PURCHASER ACKNOWLEDGES
THAT IT IS NOT RELYING AND HAS NOT RELIED UPON THE SELLER OR ANY REPRESENTATIVE
OF SELLER, EXCEPT AS TO THE SPECIFIC REPRESENTATIONS OF SELLER SET FORTH IN THIS
AGREEMENT AS TO: (1) THE QUALITY, NATURE, ADEQUACY OR PHYSICAL CONDITION OF ANY
OF THE ASSETS; (2) THE QUALIFY, NATURE, ADEQUACY OR CONDITION OF SOILS OR
GROUNDWATER AT THE PROPERTY; (3) THE EXISTENCE, QUALITY, NATURE, ADEQUACY OR
CONDITION OF ANY UTILITIES AT OR NEAR THE PROPERTY; (4) THE DEVELOPMENT
POTENTIAL OF ANY OF THE ASSETS, THEIR HABITABILITY, MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE; (5) THE ZONING OR OTHER LEGAL STATUS OF THE
PROPERTY, INCLUDING BUT NOT LIMITED TO, CONDEMNATION OR THREAT OF CONDEMNATION;
(6) THE ASSETS' OR BUSINESS'S COMPLIANCE WITH ANY LAW, RULE, REGULATION OR
ORDINANCE (INCLUDING THE AMERICANS WITH DISABILITIES ACT), COVENANT, CONDITION
OR RESTRICTION, LABOR LAW OR BUILDING CODE CONCERNING LABOR AND MATERIAL USED OR
INCORPORATED INTO OR OTHERWISE RELATING TO ANY OF THE ASSETS; OR (7) THE
CONDITION OF TITLE TO ANY OF THE ASSETS OR THE NATURE, STATUS AND EXTENT OF ANY
EASEMENT, RIGHT OF WAY, ENCUMBRANCE, LICENSE, RESERVATION OR ANY OTHER MATTER
AFFECTING TITLE TO THE PROPERTY EXCEPT AS MAY BE SET FORTH IN THE COMMITMENT
DELIVERED TO PURCHASER. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE
PRECEDING, EXCEPT FOR THE INDEMNITY OBLIGATION OF SELLER SET FORTH IN SECTION
6.01(a) OF THIS AGREEMENT, PURCHASER HEREBY WAIVES, RELEASES AND DISCHARGES ANY
CLAIM IT HAS, MIGHT HAVE HAD OR MAY HAVE AGAINST SELLER RELATING TO THE
CONDITION OF ANY OF THE ASSETS, EITHER PATENT OR LATENT, AS WELL AS PURCHASER'S
ABILITY OR INABILITY TO OBTAIN OR MAINTAIN BUILDING PERMITS, CERTIFICATES OF
OCCUPANCY OR OTHER LICENSES FOR THE USE OR OPERATION OF ANY OF THE ASSETS,
AND/OR CERTIFICATES OF COMPLIANCE THEREFOR, THE ACTUAL OR POTENTIAL INCOME OR
PROFITS TO BE DERIVED FROM THE ASSETS, THE REAL ESTATE TAXES OR ASSESSMENTS NOW
OR HEREAFTER PAYABLE THEREON, THE COMPLIANCE WITH ANY ENVIRONMENTAL OR LAND USE
LAWS, RULES, REGULATIONS OR REQUIREMENTS, AND ANY OTHER STATE OF FACTS WHICH
EXISTS WITH RESPECT TO THE ASSETS. THE PROVISIONS OF THIS SECTION
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2.02(e) SHALL SURVIVE THE CLOSING AND THE TRANSFER OF TITLE TO THE ASSETS TO
PURCHASER.
ARTICLE III.
CONDUCT AND TRANSACTIONS PRIOR TO CLOSING
3.01 Access to Records and Properties; Confidentiality.
(a) Between the date of this Agreement and the expiration of the thirtieth
(30th) day thereafter, Seller shall give to Purchaser and its advisors such
access to the Assets and premises as Purchaser shall from time to time
reasonably request. Without limiting the generality of the foregoing, Seller
shall give to Purchaser and its representatives access during normal business
hours to the facilities and operations of the Business so that Purchaser may at
Purchaser's cost (1) obtain evaluations of the Assets and (2) perform any and
all assessing, testing, monitoring and investigating that Purchaser deems
necessary in its sole discretion with respect to environmental matters
concerning the Real Property and operation of the Business. Any investigation
pursuant to this Section 3.01 shall be conducted at Purchaser's cost (other than
the usual salary of employees of Seller, overhead expenses of Seller and the
fees and expenses of counsel and independent public accountants for Seller) and
in such manner as not to interfere unreasonably with the business and operations
of Seller. Purchaser, jointly and severally, shall indemnify and hold Seller and
Seller Indemnitees harmless in accordance with Article VI of this Agreement from
any Damages arising out of Purchaser's entry upon or access to the Property or
other Assets.
(b) In connection with the transactions contemplated by this Agreement, in
addition to, and not by way of limitation of, any other obligations of Purchaser
under or pursuant to any other agreement, whether written or oral, with Seller
or any other obligations of Purchaser at law or in equity, all information
furnished to Purchaser or to any other Person for the benefit of Purchaser will
be kept confidential by Purchaser, such other Person and their respective
associates, Affiliates, agents, employees, consultants and advisors
(collectively, "Purchaser Representatives") prior to the Closing Date, or in the
event the closing does not occur at all times, and will not be used in any
manner adverse to the furnishing party. During such time, Purchaser will hold
and will cause the Purchaser Representatives to hold in strict confidence,
unless compelled to disclose by judicial or administrative process or, in the
opinion of its counsel, by other requirements of law, all documents and
information concerning Seller furnished to Purchaser or any Purchaser
Representative by Seller or any of its representatives in connection with the
transactions contemplated by this Agreement (except to the extent that such
information can be shown to have been (1) previously available to the Person to
which it was furnished on a non-confidential basis prior to its disclosure, (2)
in the public domain or (3) available on a non-confidential basis from a Person
other than a Person not bound by any confidentiality agreement).
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Purchaser may release or disclose such information to any Purchaser
Representative in connection with this Agreement prior to the Closing Date or in
the event the Closing does not occur only if the Purchaser Representatives are
informed of the confidential nature of such information and they agree in
writing (substantially similar in substance to the matters contained in this
Section 3.01(b)) to such confidential treatment of all such information. If the
transactions contemplated by this Agreement are not consummated, Purchaser
agrees to remain bound by the confidentiality of information and nonsolicitation
and nonemployment and nonengagement of employees of Seller obligations set forth
in paragraph 7 of the Letter of Intent dated September 25, 1997, previously
executed by Purchaser and Seller (the "Letter of Intent") and incorporated
herein for all purposes. Notwithstanding the foregoing, if a Person has been
requested or is required (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) to disclose any information, the Person so being required will promptly
notify Seller so that Seller may seek an appropriate protective order. Each
Purchaser warrants that Purchaser and each Purchaser Representative will
cooperate fully with Seller in seeking such a protective order.
3.02 Operation of Business. Between the date hereof and the Effective Time
of Closing, except as contemplated herein or except with the prior consent of
Purchaser, which consent will not be unreasonably withheld, Seller shall
(a) operate the Business as presently operated, only in the ordinary
course, and in compliance with all laws, regulations, writs, injunctions,
decrees or orders applicable to Seller and the Assets, including without
limitation all environmental, safety and health, antitrust, consumer protection,
labor, equal opportunity or discrimination laws, rules and regulations,
(b) cause the tangible Assets to be maintained and repaired in accordance
with past practices of Seller, and
(c) not dispose of, or commit to dispose of, any Assets (other than in the
ordinary and customary course of business).
Seller shall use best efforts to operate and maintain, or to cause to be
operated and maintained, the Business and the Assets in such a manner so that
the representations and warranties of Seller contained herein shall continue to
be true and correct in all material respects on and as of the Effective Time of
Closing as if made on and as of the Effective Time of Closing.
3.03 No Public Announcements. The parties hereto shall not issue any press
release or make any public statement regarding the transactions contemplated by
this Agreement without obtaining the prior consent of the other party, which
consent shall not be unreasonably withheld.
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3.04 Best Efforts to Satisfy Conditions. Seller shall use its reasonable
best efforts to cause the conditions to the obligations of Purchaser contained
in Section 4.01 to be satisfied to the extent that the satisfaction of such
conditions is reasonably in the control of Sellers, and Purchaser shall use its
reasonably best efforts to cause the conditions to the obligations of Sellers
contained in Section 4.02 to be satisfied to the extent that the satisfaction of
such conditions is reasonably in the control of Purchaser.
3.05 Insurance. As of the Effective Time of Closing, Seller shall cease to
be covered with respect to any occurrence after the Effective Time of Closing
under the insurance policies obtained and maintained by Seller covering the
business, property and employees of Seller.
Following the Effective Time of Closing, Purchaser shall give to Seller
prompt notice of the assertion by any Person of any claim against Seller which
might be subject to the insurance coverage described in this Section 3.05.
Purchaser shall cooperate with Seller and any applicable insurance carrier in
any investigation by Seller or any applicable insurance carrier of any such
claim and shall give to Seller and any applicable insurance carrier reasonable
access to the books, records and personnel formerly of Seller to the extent
reasonably necessary to enable Seller and any applicable insurance carrier to
investigate such claim.
3.06 Title Commitment, Title Policy and Survey.
(a) Seller has caused Xxxxxxx County Title Division of Oregon Title
Insurance Company (the "Title Company") to issue a preliminary title report and
commitment for title insurance (the "Commitment") to Purchaser covering the
Property, accompanied by copies of all recorded documents relating to easements,
rights-of-way, and other matters affecting the Property. The Commitment contains
an irrevocable commitment by the Title Company to issue the Title Policy
(defined in Section 4.01(c) of this Agreement) on the Closing Date. Purchaser
shall give Seller written notice on or before November 7, 1997, that the
condition of title as set forth in the Commitment and the matters shown on the
Survey provided for in paragraph (b) of this Section 3.06 are satisfactory or
are not satisfactory and not in accordance with the terms and conditions of
Section 4.01(c) of this Agreement, and if Purchaser states that the condition of
title or any matter shown on the Survey are not satisfactory and not in
accordance with the terms and conditions of Section 4.01(c) of this Agreement,
Seller shall, at its sole cost and expense, promptly use its reasonable best
efforts to eliminate or modify all such matters to the reasonable satisfaction
of Purchaser. If Seller is unable to eliminate or modify all such matters to the
reasonable satisfaction of Purchaser, Purchaser may, at its option, (i) accept
title subject to any and all such matters not so eliminated or modified, without
an adjustment in the Purchase Price, in which event, all such matters shall be
deemed to be waived for all purposes, or (ii) terminate this Agreement, and this
Agreement shall be of no further force or effect. All
15
standard exceptions, exclusions, conditions and stipulations which are part of
the form of Title Policy called for under Section 4.01(c) of this Agreement and
matters that are accepted or waived by Purchaser shall be considered "Permitted
Exceptions."
(b) Purchaser, at its sole cost and expense, shall cause to be delivered to
Purchaser and Seller and to the Title Company, a current land title survey of
the Property (the "Survey"), prepared by a duly licensed land surveyor
acceptable to Purchaser and the reasonable satisfaction of Seller. The survey
shall:
(1) Set forth an accurate metes and bounds description of the
Property;
(2) Locate all existing easements (setting forth the recording
information for such easements), all alleys, streets and roads, signs,
driveways, storm drains, sanitary sewers, drainage ways, and all utilities
utilized in the operation of the Property and located on property adjacent
thereto owned by Seller, if any;
(3) Show all encroachments upon the Property;
(4) Show all existing improvements, parking lots, power lines, fences,
landscaping and other improvements;
(5) Show all dedicated public streets providing access to the Property
and whether such access is paved to the Property line of the Property; and
(6) Contain the surveyor's certificate to Purchaser and Seller that
there are no encroachments upon the Property except as shown and that the
Survey is correct.
3.07 Update to Seller's Disclosures. Seller shall deliver to Purchaser a
supplement to any of the appendices of Seller to this Agreement promptly after
any Seller becomes aware of any event which changes any representation or
warranty made by Seller in this Agreement or any statement made in any previous
supplement.
3.08 Assignment by Purchaser. Purchaser may within a reasonable period of
time prior to the Closing assign its rights under this Agreement to acquire the
Assets to LTC Exchange Company ("Assignee") under the Exchange Agreement between
Purchaser and Assignee, dated June 12, 1997, a copy of which is attached hereto
as Exhibit 3.08, provided (i) that such assignment shall in no manner or way
release Purchaser from the performance of any of its obligations under this
Agreement or any of its liabilities hereunder or alter those obligations or
liabilities in any manner or way, (ii) Purchaser shall remain fully liable for
the performance of all such obligations and the satisfaction of all such
liabilities notwithstanding such assignment, (iii) Seller makes no
representation or warranty of any kind in respect to such assignment or the
intended Tax consequences thereof, (iv) should any dispute arise in connection
with this Agreement, the
16
contemplated Transaction or the assignment to Assignee, such dispute shall be
resolved as if there had been no such assignment to Assignee, to the effect that
Seller shall have no liability to Assignee, Purchaser or any other party by
virtue of the assignment other than to perform Seller's obligations under this
Agreement, and (v) Purchaser, jointly and severally, hereby indemnifies Seller
and Seller Indemnitees agrees to hold Seller and Seller Indemnitees harmless
from any and all such liability on the terms and conditions provided in Article
VI of this Agreement.
3.09 No Business Shutdown or Layoffs. Purchaser shall not shut down the
Business or lay off employees of Seller engaged in the operation of the Business
prior to Closing or take any other action which could subject Seller to any
Damages under state or federal plant closing or mass layoffs laws or any law of
similar import.
3.10 Utility Easements. If the Survey reveals that the Property is serviced
by private utility easements across the property owned by Seller adjacent to the
Property, Seller and Purchaser shall work in good faith together during the due
diligence period provided for in Section 3.01(a) of this Agreement to reach
agreement upon mutually satisfactory forms of easements on such adjacent
property of Seller to service the Property, such easements to be in recordable
form and on mutually satisfactory terms and conditions. If Seller and Purchaser
are unable to agree upon such forms of easements, Purchaser may, at its option,
either waive its requirement for any such easement or on or before the
expiration of such due diligence period terminate this Agreement.
3.11 Sign. Seller agrees to permit Purchaser to continue in use during the
one-year period following Closing the sign advertising the Business existing on
the roof of a building on Seller's adjacent truck stop property. All maintenance
and repair of the sign shall be at the cost and expense of Purchaser. At the end
of the one-year period, Seller may cause the sign to be removed, and Purchaser
shall be entitled to possession of the sign or such salvageable parts thereof as
may exist after removal. Seller shall not be liable or responsible for any
damage or destruction to the sign caused by removal.
ARTICLE IV.
CONDITIONS OF CLOSING
4.01 Conditions of Obligations of Purchaser. The obligations of Purchaser
to consummate the purchase and sale under this Agreement are subject to the
satisfaction of the following conditions, each of which may be waived in writing
by Purchaser:
(a) Representations and Warranties; Performance of Obligations.
(1) The representations and warranties of Seller set forth in Section
2.01 hereof subject to such changes as
17
contemplated herein on the Closing Date shall have been and shall be true
and correct in all material respects on and as of the date of this
Agreement and shall be true and correct in all material respects on and as
of the Closing Date, as though made on and as of the Closing Date.
(2) Seller shall have performed in all material respects the
covenants, agreements and obligations required to be performed by it under
this Agreement prior to and on the Closing Date.
(3) Seller shall have delivered to Purchaser its certificate
confirming the satisfaction of the conditions set forth in subparagraphs
(1) and (2) above.
(b) Delivery of Instruments. Seller shall have delivered to Purchaser the
duly authorized and executed Deed, the General Conveyance, Transfer and
Assignment, and such other conveyance documents that Purchaser may reasonably
request to effect the transfer and conveyance of the Assets to Purchaser.
(c) Title Policy. At Closing, Seller shall deliver to Purchaser either (1)
an ALTA owner's title policy (1987) issued, at the sole cost and expense of
Seller, by the Title Company or (2) on the conditions that (a) Purchaser be
solely responsible for the payment of any additional premium therefor, (b) the
Survey is satisfactory in form and scope for the issuance thereof, (c) Purchaser
provides all information required in connection therewith, and (d) Seller incurs
no extra cost or expense or liability in connection therewith, then Seller shall
deliver to Purchaser at Closing an extended coverage ALTA owners title policy
issued by the Title Company. If an extended coverage ALTA owners title policy is
called for by the foregoing terms and conditions, Seller will pay the basic
insurance rate for an ALTA owner's title policy, and Purchaser shall pay any and
all additional premium required to modify or eliminate any standard exceptions
desired by Purchaser to be modified or eliminated. The form of Title Policy
called for under this Section 4.01(c) is referred to in this Agreement as the
"Title Policy". The Title Policy shall be in the amount of $2,000,000, insuring
that Purchaser owns fee simple title to the Property, subject to no exceptions
other than (i) the Permitted Exceptions; (ii) if an extended coverage ALTA
owners title policy is called for by the terms and conditions of this Section
4.01(c), such of the standard exceptions as Purchaser shall not pay the
additional premium required to eliminate or modify such exceptions or as to
which modification or elimination thereof cannot be accomplished because of
nonsatisfaction of one or more of the conditions of this Section 4.01(c); (iii)
the exception as to taxes which shall have inserted the year 1997-1998; and (iv)
other exceptions which Purchaser approves in writing.
(d) Consents, Notices and Approvals. All consents and approvals of all
Persons necessary for the consummation of the Transaction under any agreement,
permit, law or regulation shall have been received and delivered to Purchaser,
all notices to any
18
Person required by any of the foregoing to be given in respect of the
Transaction prior to Closing shall have been duly given, and all necessary
action shall have been taken to assign to Purchaser the Scheduled Contracts.
4.02 Conditions of Obligations of Seller. The obligations of Seller to
consummate the sale and purchaser under this Agreement are subject to the
satisfaction of the following conditions, each of which may be waived in writing
by Seller:
(a) Representations and Warranties; Performance of obligations. The
representations and warranties of Purchaser set forth in Section 2.02 hereof on
the Closing Date shall have been and be true and correct in all material
respects on and as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date.
Purchaser shall have performed in all material respects the covenants,
agreements and obligations necessary to be performed by it under this Agreement
prior to the Closing Date. Purchaser shall have delivered to Seller their
certificate confirming the satisfaction of the conditions set forth in this
subparagraph (a).
(b) Purchase Price. Purchaser shall have delivered to Seller the Purchase
Price in the form required by Section 1.03(a) of this Agreement.
4.03 Opportunity to Cure. In the event that Purchaser shall notify Sellers,
or Sellers shall notify Purchaser, of its decision not to consummate the sale
and purchase of the Business hereunder due to the failure of any of the
conditions contained in Sections 4.01 or 4.02 hereof to be satisfied, Sellers,
or Purchaser, as the case may be, shall have the opportunity for a reasonable
period of time to take such actions as may be necessary to remedy the
circumstances which have resulted in the failure of such condition or conditions
to be satisfied.
ARTICLE V.
CLOSING DATE AND TERMINATION OF AGREEMENT
5.01 Closing Date.
(a) Subject to the right of (1) Seller and (2) Purchaser to terminate this
Agreement pursuant to Section 5.02 hereof, the closing for the consummation of
the purchase and sale contemplated by this Agreement (the "Closing") shall,
unless another date or place is agreed to in writing by Seller and Purchaser,
take place at the offices of the Title Company at 000 Xxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, at 10:00 a.m., Oregon time on December 5, 1997, or such other date as
the parties may agree upon (the "Closing Date").
(b) For all purposes hereof, the term "the Effective Time of Closing" shall
occur upon the delivery to Purchaser of the Deed,
19
the General conveyance, Transfer and Assignment, and the other Operative
Documents as contemplated herein on the Closing Date.
5.02 Termination of Agreement.
(a) This Agreement may, by written notice given prior to Closing strictly
at the terms and in the manner hereinafter provided, be terminated or abandoned:
(1) In the event that the Effective Time of Closing shall not have
occurred on or before December 11, 1997, by Seller or by Purchaser;
(2) By Purchaser (i) pursuant to Section 3.06(a) or if a material
default or breach shall be made by Seller with respect to the due and
timely performance of any of its covenants and agreements contained herein,
or with respect to the correctness of or due compliance with any of its
representations and warranties contained in Article II hereof, and such
default cannot be cured and has not been waived (if Seller notifies
Purchaser of any default or breach by Seller hereunder and Purchaser
chooses not to terminate this Agreement, Purchaser shall be deemed to have
waived such default or breach); (ii) by written notice given to Seller on
or before the thirtieth (30th) day after the date of this Agreement,
specifying (a) in reasonable detail the reason or reasons that Purchaser is
not satisfied with the results of its investigation provided for in Section
3.01(a) of this Agreement or not satisfied with the information disclosed
in Appendix 1.02(b)(4) or Appendix 1.02(b)(7) to this Agreement and/or (b)
that Purchaser elects to terminate pursuant to Section 3.10 of this
Agreement; and (iii) by written notice given to Seller on or before
November 21, 1997 to the effect that, despite its best efforts to do so,
Purchaser has been unable to obtain acceptable financing for its purchase
of the Assets pursuant to this Agreement, as determined by Purchaser in its
sole judgment;
(3) By Seller if a material default or breach shall be made by
Purchaser with respect to the due and timely performance of any of its
covenants and agreements contained herein, or with respect to the
correctness of or due compliance with any of its representations and
warranties contained in Article II hereof, and such default cannot be cured
and has not been waived (if Purchaser notifies Seller of any default or
breach by Purchaser hereunder and Seller chooses not to terminate this
Agreement, Seller shall be deemed to have waived such default or breach);
(4) By mutual consent of Seller and Purchaser; or
(5) by Purchaser if any supplement to the Seller's disclosures
provided for by Section 3.07 of this Agreement contains disclosures of any
fact or condition which makes untrue, or shows to have been untrue, any
representation or
20
warranty by Seller in this Agreement or any statement made in appendices of
Seller unless concurrently with the delivery of the supplement Seller
represents and warrants that the disclosed fact or condition can and will
be corrected at Seller's expense prior to Closing.
(b) In the event this Agreement is terminated in accordance with and
pursuant to Section 5.02(a), the $100,000 xxxxxxx money portion of the Purchase
Price shall except as otherwise provided in the proviso of this subparagraph (b)
be returned to Purchaser and all further obligations of the parties hereunder
shall terminate, except that the obligations set forth in Sections 3.01(b), 7.02
and 7.03 shall survive; provided, however, that if this Agreement is so
terminated by Seller because one or more of the conditions to Seller's
obligations hereunder is not satisfied as a result of the Purchaser's failure to
comply with Section 3.04 or any of its obligations under any other provision of
this Agreement, it is expressly agreed and understood that the $100,000 xxxxxxx
money portion of the Purchase Price shall be immediately paid to Seller upon
demand therefor by Seller, and provided, however, further that the terminating
party shall, despite its termination of this Agreement, continue to have the
right to pursue all legal remedies for breach of contract and damages which
shall survive such termination unimpaired.
ARTICLE VI.
INDEMNIFICATION
6.01 Indemnity.
(a) Seller agrees to indemnify and hold Purchaser harmless from any and all
liabilities, payments, obligations, penalties, claims, costs, disbursements or
expenses (including without limitation, fees, disbursements and expenses of
attorneys and other professional advisors) of any kind or nature whatsoever
(collectively "Damages"), resulting from or relating to any remedial obligation
imposed upon Purchaser arising under, any Environmental Laws as the result of
any event, condition, circumstance, activity, practice, incident, action or plan
existing or occurring prior to the Effective Time of Closing and relating in any
way to the Assets (including without limitation the ownership, operation or use
of the Assets and the conduct of the Business prior to the Effective Time of
Closing but excluding any remedial obligation arising under any Environmental
Laws that is attributable to a change by Purchaser in the structure, use or
condition of any of the Assets after the Effective Time of Closing). In no event
whatsoever shall the aggregate liability of Seller under this indemnity
(including all costs, expenses and attorneys' fees paid or incurred by Seller in
connection therewith) exceed the amount of the Purchase Price. Seller shall have
no obligation to pay Damages to Purchaser as a result of Environmental Laws
which were not in effect at or prior to the Effective Time of Closing.
21
(b) Purchaser, jointly and severally, shall indemnify and hold Seller and
Seller's officers, directors, employees, affiliates and partners ("Seller
Indemnitees") harmless from, any and all Damages resulting from, arising out of
or relating to the shut down or closing of the Business after Closing or layoff
of employees of the Business after Closing which could result in any Damages to
Seller or Seller Indemnitees under applicable law as a result thereof.
6.02 Notice, Participation and Duration.
(a) If a claim by a third party is made against a party indemnified
pursuant to this Article VI ("Indemnitee"), and if such Indemnitee intends to
seek indemnity with respect thereto under this Article VI, the Indemnitee shall
promptly, and in any event within 60 days after the assertion of any claim for
indemnification under this Agreement ("Claim"), notify the party or parties from
whom indemnification is sought ("Indemnitor") of such Claim. In the event of any
Claim, Indemnitor, at its option, may assume (with legal counsel reasonably
acceptable to the Indemnitee) the defense of any claim, demand, lawsuit or other
proceeding in connection with the Indemnitee's Claim, and may assert any defense
of Indemnitee or Indemnitor; provided that Indemnitee shall have the right at
its own expense to participate jointly with Indemnitor in the defense of any
claim, demand, lawsuit or other proceeding in connection with the Indemnitee's
Claim. In the event that Indemnitor elects to undertake the defense of any Claim
hereunder, Indemnitee shall cooperate with Indemnitor to the fullest extent
possible in regard to all matters relating to the Claim (including, without
limitation, corrective actions required by applicable law, assertion of defenses
and the determination, mitigation, negotiation and settlement of all amounts,
costs, actions, penalties, damages and the like related thereto) so as to permit
Indemnitor's management of same with regard to the amount of Damages payable by
the Indemnitor hereunder. Neither Purchaser nor any Seller shall be entitled to
settle any Claim without the prior written consent of the other, which consent
shall not unreasonably be withheld.
(b) No Claim for indemnification under this Section 6.02 may be made after
the seventh anniversary of the Effective Time of Closing; provided, however,
that the foregoing shall not affect any claim made in good faith prior to the
date of such expiration.
6.03 Reimbursement. In the event that the Indemnitor shall undertake,
conduct or control the defense or settlement of any Claim and it is later
determined that such Claim was not a Claim for which the Indemnitor is required
to indemnify the Indemnitee under this Article VI, the Indemnitee shall
reimburse the Indemnitor for all its costs and expenses with respect to such
settlement or defense, including reasonable attorneys' fees and disbursements.
6.04 No Third Party Beneficiaries. The foregoing indemnification is given
solely for the purpose of protecting the
22
parties to this Agreement and the Seller Indemnitees and shall not be deemed
extended to, or interpreted in a manner to confer any benefit, right or cause of
action upon, any other Person.
ARTICLE VII.
MISCELLANEOUS
7.01 Further Actions. From time to time, as and when requested by Purchaser
or Seller, Seller or Purchaser shall execute and deliver, or cause to be
executed and delivered, such documents and instruments and shall take, or cause
to be taken, such further or other actions as may be reasonably necessary to
transfer, assign and deliver to Purchaser or its permitted assigns the Assets
(or to evidence the foregoing) and to consummate and to effect the other
transactions expressly required to be performed hereunder.
7.02 Broker. Sellers and Purchaser represent and warrant to the other that
they have no obligation or liability to any broker or finder by reason of the
transactions which are the subject of this Agreement, except Purchaser
acknowledges that it has agreed to pay a fee of $70,000 to Xxxxx Realty Group,
Beaverton, Oregon by reason of such transactions. Each of (a) Seller and (b)
Purchaser agree to indemnify the other against, and to hold the other, jointly
and severally, harmless from, at all times after the date hereof, any and all
liabilities and expenses (including without limitation legal fees) resulting
from, related to or arising out of any claim by any Person for brokerage
commissions or finder's fees, or rights to compensation, on account of services
rendered or purportedly rendered on behalf of Seller or Purchaser, as the case
may be, in connection with this Agreement or the transactions contemplated
hereby. Xxxxx Realty Group, by its signature to this Agreement, acknowledges
that it is not the agent or representative of the Seller and that the Seller is
in no way responsible or liable to Xxxxx Realty Group for any fee or other
compensation. Xxxxx Realty Group further agrees that it shall have no right or
claim to any portion of the $100,000 xxxxxxx money deposit portion of the
Purchase Price.
7.03 Expenses. Except as otherwise specifically provided herein, Seller and
Purchaser shall each bear their own legal fees, accounting fees and other costs
and expenses with respect to the negotiation, execution and the delivery of this
Agreement and the consummation of the transactions hereunder. Seller shall pay
all sales, transfer and documentary Taxes incident to the sale of the Business.
7.04 Entire Agreement. This Agreement, the Exhibits hereto, the Seller's
appendices hereto and any supplement thereto contain, and are intended by the
parties as a final expression of, the entire agreement between Seller and
Purchaser with respect to the transactions contemplated by this Agreement and,
except as provided in Section 3.01(b), supersede all prior oral or written
agreements, arrangements or understandings with respect thereto, including
23
without limitation the Letter of Intent (except to the extent provided in
Section 3.01(b)).
7.05 Descriptive Headings; Gender. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement. Words used herein,
regardless of the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other gender,
masculine, feminine, or neuter, as the context requires.
7.06 Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and shall be delivered either personally
or by telegram, telex, telecopy or similar facsimile means, by registered or
certified mail (postage prepaid and return receipt requested), or by express
courier or delivery service, addressed as follows:
If to Seller:
Petro Stopping Centers, L.P.
0000 Xxxxxx Xxxxx
P.O. Box 26808 (79926)
Xx Xxxx, Xxxxx 00000
Attention: Legal Department
Telecopy No. 000-000-0000
With a copy to:
Seller's Counsel
Xxxx Xxxxxx, Esq.
Kemp, Smith, Xxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxx Xxxxx
X.X. Xxx 0000 (79999-2800)
Xx Xxxx, Xxxxx 00000
Telecopy No. (000) 000-0000
If to Purchaser:
Xx. Xxxx Y. Park and Xxxxx Xxx Park
0000 Xxxxxxxx Xxxxx X.X.
Xxxxxx, Xxxxxx 00000
With copies to:
Purchaser's Counsel
Xxxxx X. Xxxxxx, Esq.
X.X. Xxx 000
Xxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx X.X., Xxxxx 000
After March 1, 1998, the street address will change to
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxx, Xxxxxx 00000-0000
Telecopy No. 000-000-0000
24
or at such other address and number as either party shall have previously
designated by written notice given to the other party in the manner hereinabove
set forth. Notices shall be deemed given when received, if sent by telegram,
telex, telecopy or similar facsimile means (confirmation of such receipt by
confirmed facsimile transmission being deemed receipt of communications sent by
telex, telecopy or other facsimile means); and when delivered and receipted for
(or upon the date of attempted delivery where delivery is refused), if hand-
delivered, sent by express courier or delivery service, or sent by certified or
registered mail.
7.07 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon (other than the choice of law
principles thereof).
7.08 Assignability. This Agreement shall not be assignable otherwise than
as permitted by Section 3.08 by any party without the prior written consent of
the other parties, and any purported assignment by any party without the prior
written consent of the other parties shall be void.
7.09 Waivers and Amendments. Any waiver of any term or condition of this
Agreement, or any amendment or supplementation of this Agreement, shall be
effective only if in writing. A waiver of any breach or failure to enforce any
of the terms or conditions of this Agreement shall not in any way affect, limit
or waive a party's rights hereunder at any time to enforce strict compliance
thereafter with every term or condition of this Agreement.
7.10 Third Party Rights. Notwithstanding any other provision of this
Agreement, this Agreement shall not create benefits on behalf of any Person
other than Seller and Purchaser (including without limitation any broker or
finder, notwithstanding the provisions of Section 7.02 hereof), and this
Agreement shall be effective only as between Purchaser and Seller, their
successors and permitted assigns; provided, however, that Seller Indemnitees are
intended third party beneficiaries hereof to the extent provided in Sections
6.01 and 6.04.
7.11 Illegalities. In the event that any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this Agreement
shall not, at the election of the party for whose benefit the provision exists,
be in any way impaired.
7.12 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
Agreement.
7.13 Employees.
25
(a) Subject to the obligations of Purchaser under Section 3.09 of this
Agreement, Purchaser may offer employment to some or all of the Employees prior
to or on the Effective Time of Closing. Purchaser will inform Sellers of the
names of any Employees who are offered employment and of any Employees whom it
employs. Subject to the obligations of Purchaser under Section 3.09 of this
Agreement, Purchaser shall have full and absolute discretion in determining the
terms, conditions and benefits relating to such employment.
(b) Except for the obligations of Purchaser under Section 3.09 of this
Agreement, nothing contained in this Agreement shall obligate Purchaser to
continue the employment of any Employee. Nothing in this Section 7.13 is
intended to create any claim or right on the part of any employee of Sellers and
no such employee shall be entitled to assert any claim or right hereunder.
7.14 Access to Records.
(a) Following the Effective Time of Closing, Purchaser shall give to Seller
free and unrestricted access to (and the right to make copies at the expense of
Seller) the Records and to the extent that such were purchased by Purchaser
hereunder and relate to the business, operations, income, expenses and Assets
existing on, accruing or arising prior to or occurring prior to Effective Time
of Closing, but any access pursuant to this Section 7.14 shall be conducted in
such manner as not to interfere unreasonably with the operations of the Business
following the Effective Time of Closing.
(b) Following the Effective Time of Closing, Seller shall give to Purchaser
free and unrestricted access to (and the right to make copies at the expense of
Purchaser) the books, files, records and Tax returns and supporting schedules
and work papers of Seller to the extent that such relate to the business,
operations, income, expenses and Assets existing on, accruing or arising prior
to or occurring prior to the Effective Time of Closing, but any access pursuant
to this Section 7.14 shall be conducted in such manner as not to interfere
unreasonably with the operations of the business of Sellers following the
Effective Time of Closing.
(c) Any access to Records pursuant to this Section shall be subject to the
confidentiality obligations stated in Sections 3.01(b).
7.15 Cost of Litigation. If any legal action or other proceeding is brought
for the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with this Agreement or the
transactions contemplated hereby, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in connection with such action or proceeding, in addition to any other relief to
which it or they may be entitled, subject to Section 6.01.
26
7.16 Waiver of Trial by Jury. Purchaser and Seller hereby irrevocably waive
all right to trial by jury in any action, proceeding or counterclaim arising out
of or relating to this Agreement or any of the Operative Documents, the
transactions contemplated by any thereof or the actions of any of the parties or
their representatives in connection with the making, performance or enforcement
thereof or hereof.
7.17 Joint Preparation. This Agreement shall be deemed to have been
prepared jointly by all parties hereto, and no ambiguity herein shall be
construed against any party based upon the identity of the author of this
Agreement or any portion thereof.
7.18 Post-Closing Consultation. Seller will use its best efforts to cause
its employee, Mr. Xxxx Xxxxxx, to be available to Purchaser during the first
three weeks following the Closing to answer such questions of Purchaser and
provide such consultation to Purchaser concerning the operations of the Business
as Xx. Xxxxxx can reasonably provide at such times as shall be convenient for
him and only to such extent as he can provide during his normal work day for
Seller without materially interfering with the performance of his duties and
obligations as an employee of Seller. Seller makes no representation as to any
consultation that shall be provided by Xx. Xxxxxx, and neither Seller nor Xx.
Xxxxxx shall be liable in any manner for any consultation or assistance Xx.
Xxxxxx shall provide to Purchaser, such consultation and assistance being
extended only as an accommodation to Purchaser. Neither Seller nor Xx. Xxxxxx
shall be liable to Purchaser for the failure to provide any minimum level of
consultation, it being the agreement that Xx. Xxxxxx will be available to
provide only such consultation as he can reasonably provide subject to his
performance of his duties and obligations as an employee of Seller. Purchaser
hereby jointly and severally indemnifies Seller, Seller Indemnitees and Xx.
Xxxxxx and agrees to hold each of them harmless from any Damages arising out of
or relating to any consultation or assistance Xx. Xxxxxx provides to Purchaser
under this Section 7.18.
THE ASSETS, INCLUDING THE PROPERTY, DESCRIBED IN THIS INSTRUMENT MAY NOT BE
WITHIN A FIRE PROTECTION DISTRICT PROTECTING STRUCTURES. THE ASSETS, INCLUDING
THE PROPERTY IS SUBJECT TO LAND USE LAWS AND REGULATIONS WHICH, IN FARM OR
FOREST ZONES, MAY NOT AUTHORIZE CONSTRUCTION OR SITING OF A RESIDENCE AND WHICH
LIMIT LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930 IN
ALL ZONES. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON ACQUIRING FEE
TITLE TO THE PROPERTY SHOULD CHECK WITHIN THE APPROPRIATE CITY OR COUNTY
PLANNING DEPARTMENT TO VERIFY APPROVED USES AND EXISTENCE OF FIRE PROTECTION FOR
STRUCTURES.
27
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
SELLER:
PETRO STOPPING CENTERS, L.P.
By: /s/ XXXXX X. ZINE
---------------------------------------
Name: Xxxxx X. Zine
Title: Executive Vice President
PURCHASER:
/s/ XX. XXXX Y. PARK
-------------------------------------------
Xx. Xxxx Y. Park
/s/ XXXXX XXX PARK
-------------------------------------------
Xxxxx Xxx Park
The undersigned, Xxxxx Realty Group, hereby signs below to evidence its
agreement to the provisions of Section 7.02 hereof as applicable to the
undersigned.
XXXXX REALTY GROUP
By: /s/ XXXXXXX XXXXX
-----------------------------------------
Xxxxxxx Xxxxx
ACKNOWLEDGMENT BY TITLE COMPANY
XXXXXXX COUNTY TITLE DIVISION OF OREGON TITLE INSURANCE COMPANY hereby
acknowledges receipt of the $100,000 xxxxxxx money required under Section
1.03(1) of the foregoing Agreement and agrees to hold such xxxxxxx money and
deliver it to Purchaser or Seller in accordance with the terms and provisions of
such Agreement.
XXXXXXX COUNTY TITLE DIVISION OF
OREGON TITLE INSURANCE COMPANY
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Escrow Officer
Date: October 24, 1997
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