Exhibit 10.61
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PARTNERSHIP INTEREST SUBSCRIPTION AND PURCHASE AGREEMENT
dated as of July 23, 1999
By and Among
Petro, Inc., Petro Holdings GP Corp., Petro Holdings LP Corp., Mobil Long
Haul, Inc.,
Xxxxx X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx, Xx., JAJCO II, Inc., Volvo Petro
Holdings, LLC, Petro Warrant Holdings Corporation
and
Petro Stopping Centers, L.P.
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TABLE OF CONTENTS
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Page
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PARTNERSHIP INTEREST SUBSCRIPTION AND PURCHASE AGREEMENT...................... 1
ARTICLE I PURCHASE OF AND SUBSCRIPTION FOR THE PARTNERSHIP INTERESTS......... 3
1.1 Definitions............................................... 3
1.2 Index of Other Defined Terms.............................. 6
1.3 Purchase; Subscription.................................... 6
1.4 Closing ................................................ 7
1.5 Partnership Agreement..................................... 8
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER......................... 8
2.1 Organization and Authority: Validity: No Conflict......... 8
2.2 Good Title................................................ 8
2.3 No Prior Activities....................................... 8
2.4 Filing of Returns......................................... 9
2.5 Liens ................................................ 9
2.6 Tax Returns............................................... 9
2.7 Tax Deficiencies; Audits; Statutes of Limitations......... 10
2.8 Special Tax Status........................................ 10
2.9 No Withholding............................................ 10
2.10 Tax Status of Seller LLC................................. 10
2.11 Accredited Investor...................................... 10
2.12 Investment............................................... 10
2.13 No Public Market......................................... 11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................... 11
3.1 Organization and Authority; Validity...................... 11
3.2 Subsidiaries.............................................. 12
3.3 Capitalization............................................ 12
3.4 Conflicts; Defaults....................................... 13
3.5 Litigation................................................ 14
3.6 Absence of Changes........................................ 14
3.7 No Undisclosed Liabilities................................ 14
3.8 SEC Documents............................................. 14
3.9 Environmental Matters..................................... 14
3.10 Financial Statements..................................... 15
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Page
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBERS.................... 16
4.1 Accredited Investor............................................... 16
4.2 Investment........................................................ 16
4.3 No Public Market.................................................. 16
4.4 Organization; Authority; Validity................................. 17
4.5 Good Title........................................................ 17
ARTICLE V COVENANTS OF THE HOLDING PARTNERS, THE COMPANY, SELLER
AND THE SUBSCRIBERS................................................... 17
5.1 Reasonable Best Efforts........................................... 17
5.2 Further Assurances................................................ 17
5.3 Access to Properties and Records.................................. 18
5.4 Formation of Holdings; Contribution by Holding Partners........... 18
5.5 Discount Note Financing........................................... 18
5.6 Formation of Seller LLC; Merger of Xxxxx XX into Seller LLC....... 18
5.7 Supplemental Indenture............................................ 18
5.8 Bank Financing.................................................... 18
ARTICLE VI TAX MATTERS.......................................................... 18
6.1 Tax Elections..................................................... 18
6.2 Preparation of Returns and Payment of Taxes....................... 19
6.3 Nonforeign Affidavit.............................................. 19
6.4 Cooperation and Records Retention................................. 19
6.5 Access to Records................................................. 19
6.6 Closing Tax Return and Allocations................................ 19
6.7 Value of Assets of Holdings and the Company....................... 20
6.8 Taxes Owed by Seller.............................................. 20
6.9 Transfer Taxes.................................................... 20
ARTICLE VII CONDITIONS PRECEDENT TO CLOSING..................................... 20
7.1 Conditions Precedent to the Obligations of the Subscribers........ 20
7.2 Conditions Precedent to the Obligations of Seller................. 23
7.3 Conditions Precedent to the Obligations of the Holding Partners... 23
7.4 Conditions Precedent to the Obligations of the Company............ 25
7.5 Conditions Precedent to the Obligations of All Parties............ 25
ARTICLE VIII SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION....................................................... 27
8.1 Survival of Representations and Warranties........................ 27
8.2 Indemnification by Seller......................................... 27
8.3 Indemnification by Subscribers.................................... 29
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Page
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8.4 Indemnification by the Company............................ 30
8.5 Indemnification by Holdings............................... 30
8.6 Limitation................................................ 30
8.7 Indemnity Procedure....................................... 30
8.8 Agreement with Respect to Schedule 8.8 Items.............. 31
ARTICLE IX TERMINATION................................................... 32
9.1 Grounds for Termination.................................... 32
9.2 Effect of Termination...................................... 33
ARTICLE X MISCELLANEOUS.................................................. 33
10.1 Costs and Expenses........................................ 33
10.2 Notices................................................... 33
10.3 Counterparts; Facsimile................................... 35
10.4 Entire Agreement.......................................... 35
10.5 Captions.................................................. 36
10.6 Governing Law............................................. 36
10.7 No Third Party Rights..................................... 36
10.8 Amendment and Waiver...................................... 36
10.9 Construction and Representation by Counsel................ 36
10.10 Further Assurances....................................... 36
10.11 Binding Effect; No Assignment............................ 36
10.12 Specific Performance..................................... 36
10.13 Limitation of Liability.................................. 37
10.14 Arbitration.............................................. 37
10.15 Confidentiality.......................................... 38
10.16 Public Disclosure........................................ 38
iii
TABLE OF DEFINED TERMS
Defined Term Section Page
AAA........................................................ Section 10.15................................... 37
Agreement.................................................. Preamble........................................ 1
Allocation Schedule........................................ Section 6.7..................................... 20
Business Day............................................... Section 1.4(a).................................. .7
Xxxxxxxx Jr................................................ Preamble........................................ 1
Xxxxxxxx Partners.......................................... Preamble........................................ 1
Xxxxxxxx Sr................................................ Preamble........................................ 1
Closing.................................................... Section 1.4(a).................................. 7
Closing Date............................................... Section 1.4(a).................................. 7
Closing K-1................................................ Section 6.6..................................... 20
Company.................................................... Preamble........................................ 1
Damages.................................................... Section 8.2(a).................................. 27
Date of Notice of Claim.................................... Section 8.7..................................... 31
Disclosing Party........................................... Section 10.15................................... 38
Disputing Parties.......................................... Section 10.15................................... 37
Disputing Party............................................ Section 10.15................................... 37
Environmental Permits...................................... Section 3.9(a).................................. 14
Expenses................................................... Section 2.3..................................... 8
Holding Partners........................................... Recitals........................................ 1
Holdings................................................... Recitals........................................ 1
Indemnitee................................................. Section 8.7(a).................................. 30
Indemnitor................................................. Section 8.7(a).................................. 30
Information................................................ Section 10.15................................... 38
JAJCO...................................................... Preamble........................................ 1
Xxxxxxxxx.................................................. Recitals........................................ 2
Xxxxxxxxx Interest......................................... Recitals........................................ 2
Liens...................................................... Section 2.2..................................... 8
Limited Partnership Interest............................... Recitals........................................ 1
Members.................................................... Section 2.12.................................... 10
Mobil...................................................... Preamble........................................ 1
Mobil Class A Preferred Limited Partner Interest........... Recitals........................................ 1
Mobil Class B Preferred Limited Partner Interest........... Recitals........................................ 1
Mobil Interests............................................ Recitals........................................ 1
Mobil Limited Partner Interest............................. Recitals........................................ 1
Notice of Claim............................................ Section 8.7(a).................................. 30
Partner Insurance Policy................................... Section 7.5..................................... 26
Partnership Agreement...................................... Section 1.4(b).................................. 7
Petro...................................................... Preamble........................................ 1
Xxxxx XX................................................... Preamble........................................ 1
Pre-Change Period.......................................... Section 6.6..................................... 20
Receiving Party............................................ Section 10.15................................... 38
Registration Rights Agreement.............................. Section 7.2(a).................................. 23
SEC Documents.............................................. Section 3.8..................................... 14
Seller..................................................... Preamble........................................ 1
Seller Interests........................................... Recitals........................................ 2
Seller LLC................................................. Recitals........................................ 2
Seller LLC Interest........................................ Recitals........................................ 2
Seller Note................................................ Section 1.3(a).................................. 6
Stockholder................................................ Section 2.12.................................... 10
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Subscribers................................................ Preamble......................................... 1
Tax Indemnitees............................................ Section 8.2(b)................................... 28
Volvo...................................................... Preamble......................................... 1
Volvo Limited Partner Interest............................. Recitals......................................... 1
Warrant Holdings........................................... Preamble......................................... 1
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EXHIBITS
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Exhibit A-1 Items to be Addressed in Opinion of Counsel to Seller
Exhibit A-2 Items to be Addressed in Opinion of Tax Counsel to Seller
Exhibit B-1 Items to be Addressed in Opinion of Counsel to Holdings
delivered to Mobil, Volvo and Seller
Exhibit B-2 Items to be Addressed in Opinion of Counsel to Holdings
delivered to Seller
Exhibit B-3 Items to be Addressed in Opinion of Counsel to the Company
delivered to Volvo
Exhibit C-1 Items to be Addressed in Opinion of Counsel to Mobil
Exhibit C-2 Items to be Addressed in Opinion of Counsel to Volvo
Exhibit D Supplemental Indenture
Exhibit E-1 Fourth Amended and Restated Partnership Agreement
Exhibit E-2 Holdings Partnership Agreement
Exhibit F Volvo Joint Operating and Supply Agreement
Exhibit G-1 Partnership Interest Assignment and Assumption Agreement
Exhibit G-2 Seller Limited Partner Interest Assignment and Assumption
Agreement
Exhibit G-3 Seller LLC Interest Assignment and Assumption Agreement
Exhibit H Bank Financing and Commitment Letter
Exhibit I-1 Holdings' Certificate to Volvo
Exhibit I-2 Holdings' Certificate to Seller
Exhibit J Mobil Fueling Agreement
Exhibit K Mobil Lube Agreement
Exhibit L Xxxxxxxxx Purchase Agreement
Exhibit M Terms of Environmental Insurance Policy
Exhibit N Registration Rights Agreement
SCHEDULES
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Schedule 2.2 Title
Schedule 2.4 Filing of Returns
Schedule 3.3 Capitalization
Schedule 3.4 Conflicts; Defaults
Schedule 3.5 Litigation
Schedule 3.9 Environmental Matters
Schedule 7.5 Consents
Schedule 8.8 Certain Environmental Items
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PARTNERSHIP INTEREST SUBSCRIPTION
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AND PURCHASE AGREEMENT
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This PARTNERSHIP INTEREST SUBSCRIPTION AND PURCHASE AGREEMENT (the
"Agreement") is made and entered into this 23rd day of July, 1999, by and among
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Petro, Inc., a Texas corporation ("Petro"), Petro Holdings LP Corp., a Delaware
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corporation ("Seller"), Petro Holdings GP Corp., a Delaware corporation ("Petro
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GP"), Petro Stopping Centers, L.P., a Delaware limited partnership (the
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"Company"), Mobil Long Haul, Inc., a Delaware corporation ("Mobil"), Xxxxx X.
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Xxxxxxxx, Sr. ("Xxxxxxxx Sr."), Xxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx Jr."), JAJCO
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II, Inc., a Delaware corporation ("JAJCO," and together with Petro, Xxxxxxxx Sr.
and Xxxxxxxx Jr., the "Xxxxxxxx Partners"), Volvo Petro Holdings, LLC, a
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Delaware limited liability company ("Volvo", and together with Mobil, the
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"Subscribers"), and Petro Warrant Holdings Corporation, a Delaware corporation
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("Warrant Holdings").
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RECITALS
A. WHEREAS, in connection with the consummation of the transactions
contemplated herein, Mobil, Volvo, Warrant Holdings and the Xxxxxxxx Partners
(such Partners, the "Holding Partners") shall form Petro Stopping Centers
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Holdings, L.P., a Delaware limited partnership ("Holdings");
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B. WHEREAS, each of the Xxxxxxxx Partners and Mobil shall contribute all
or a portion of their respective common limited partnership and preferred
limited partnership interests, as applicable, in the Company to Holdings in
exchange for a common limited partnership interest or Class A preferred limited
partnership interest in Holdings, as the case may be;
C. WHEREAS, as a result of the contribution transaction described in
paragraph B above, Mobil shall own a common limited partnership interest in
Holdings (the "Mobil Limited Partner Interest") and a Class A preferred limited
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partnership interest in Holdings (the "Mobil Class A Preferred Limited Partner
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Interest");
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D. WHEREAS, Mobil desires to invest an additional five million dollars
($5,000,000) in cash in exchange for a Class B preferred limited partnership
interest in Holdings (the "Mobil Class B Preferred Limited Partner Interest",
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and, together with the Mobil Limited Partner Interest and the Mobil Class A
Preferred Limited Partner Interest, the "Mobil Interests");
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E. WHEREAS, Volvo desires to invest thirty million dollars ($30,000,000)
in cash in exchange for a common limited partnership interest in Holdings (the
"Volvo Limited Partner Interest");
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F. WHEREAS, Warrant Holdings desires to invest nine million seven hundred
thousand dollars ($9,700,000) in cash in exchange for a common limited
partnership interest in Holdings (the "Warrant Holdings Interest");
1
G. WHEREAS, Seller owns a common limited partnership interest in the
Company (the "Seller Limited Partnership Interest");
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H. WHEREAS, in connection with the consummation of the transactions
contemplated herein, Xxxxx XX, a wholly-owned subsidiary of Seller, which owns a
general partner percentage interest in the Company, shall merge with and into
Petro Holdings GP, L.L.C., a Delaware limited liability company and a wholly-
owned subsidiary of Seller ("Seller LLC"), with Seller LLC as the surviving
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entity;
I. WHEREAS, Seller will own 100% of the outstanding membership interests
of Seller LLC (the "Seller LLC Interest," and together with the Seller Limited
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Partnership Interest, the "Seller Interests");
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J. WHEREAS, Holdings desires to purchase the Seller Interests from Seller
in exchange for fifty-five million dollars ($55,000,000) in cash and a senior
discount note with an Accreted Value on the date of issuance of fourteen
million, eight hundred twenty-nine thousand, eight hundred fifty-three dollars
($14,829,853), constituting an aggregate purchase price equal to sixty-nine
million, eight hundred twenty-nine thousand, eight hundred fifty-three dollars
($69,829,853);
K. WHEREAS, Xxxxxxxxx Investments, a Pennsylvania general partnership
("Xxxxxxxxx") owns a common limited partnership interest in the Company (the
"Xxxxxxxxx Interest");
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L. WHEREAS, Holdings shall purchase the Xxxxxxxxx Interest from Xxxxxxxxx
pursuant to the terms of the Xxxxxxxxx Purchase Agreement;
M. WHEREAS, the parties hereto are entering into this Agreement to provide
for such subscription of partnership interests by Mobil, Volvo and Warrant
Holdings, and the purchase of the Seller Interests, and to establish certain
rights and obligations in connection therewith; and
N. WHEREAS, the Third Amended and Restated Partnership Agreement of the
Company shall be amended and restated at the Closing to reflect the transactions
contemplated herein, and to reflect such other modifications as agreed upon by
the parties thereto.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, representations and warranties herein contained, and
intending to be legally bound hereby, the parties hereby agree as follows:
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ARTICLE I
PURCHASE OF AND SUBSCRIPTION FOR
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THE PARTNERSHIP INTERESTS
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1.1 Definitions The following terms, as used herein, have the following
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definitions:
"Accreted Value" has the meaning ascribed to such term in the indenture
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relating to the Discount Note Financing.
"Bank Financing" means the new credit agreement, dated as of the Closing
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Date, by and among the Company and the other parties set forth on the signature
pages thereto, pursuant to the commitment letter attached hereto as Exhibit H.
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"Code" means the Internal Revenue Code of 1986, as amended.
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"Confidentiality Agreements" means that certain (a) Confidentiality
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Agreement dated as of December 23, 1998, by and between the Company and Volvo
and (b) Environmental Confidentiality Agreement dated as of March 8, 1999 by and
between the Company and Volvo.
"Discount Note Financing" means the offering by Holdings of Senior Discount
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Notes with an Accreted Value on the date of issuance of fifty-four million,
eight hundred twenty-nine thousand, eight hundred fifty-three dollars
($54,829,853) pursuant to Rule 144A under the Securities Act.
"Environmental Laws" means all applicable federal, state and local laws,
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rules, regulations, codes, ordinances, orders, decrees, directives, permits,
licenses and judgments relating to pollution, contamination or protection of the
environment, ensuring public health and safety from environmental hazards,
management and storage of Hazardous Materials, and all other laws relating to
the use, treatment, storage, disposal, handling or transportation of Hazardous
Materials, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA, as amended), the Clean Air
Act, the Clean Water Act, the Solid Wastes Disposal Act (as amended by the
Resources Conservation and Recovery Act), the Toxic Substances Control Act, the
Emergency Planning and Community Right to Know Act, the Safe Drinking Water Act
and any and all regulations issued under each of such statutes.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Fourth Amended and Restated Partnership Agreement" means that certain
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Fourth Amended and Restated Partnership Agreement of the Company dated as of the
Closing Date, by and among the parties set forth on the signature pages thereto.
3
"GAAP" means generally accepted accounting principles in effect in the
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United States of America at the time of determination, and which are
consistently applied.
"Group" shall mean, individually and collectively, (a) Seller LLC, as
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successor to Xxxxx XX, (b) Xxxxx XX, (c) Seller, and (d) any individual, trust,
corporation, partnership, limited liability company or any other entity as to
which Seller General Partner is liable for Taxes incurred by such individual or
entity either as a transferee, or pursuant to Treasury Regulations Section
1.1502-6, or pursuant to any other provision of federal, territorial, state,
local or foreign law or regulations.
"Hazardous Materials" mean any dangerous, toxic or hazardous pollutant,
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contaminant, chemical, waste, material or substance, including but not limited
to gasoline, diesel fuels, waste oils or other petroleum products, as defined in
or governed by the Environmental Laws.
"Holdings Partnership Agreement" means that certain Partnership Agreement
------------------------------
of Holdings dated as of the Closing Date, by and among the parties set forth on
the signature pages thereto.
"Indenture" means the Company's indenture dated as of February 1, 1997
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relating to the Company's 10 1/2 Senior Notes due 2007.
"Xxxxxxxxx Purchase Agreement" means that certain Xxxxxxxxx Partnership
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Interest Purchase Agreement dated as of the Closing Date, by and between
Xxxxxxxxx and Holdings.
"Knowledge" means the actual knowledge of the executive officers of the
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Company, after reasonable inquiry. With respect to environmental
representations and warranties set forth in Section 3.9, "Knowledge" includes
the actual knowledge of Xxxxx Xxxx and Xxxxxx Xxxxxxx.
"Material Adverse Effect" means a (a) material adverse effect on the
-----------------------
ability of the Company to consummate the transactions contemplated hereby or (b)
a material adverse effect on the results of operations or financial condition of
the Company and its subsidiaries, taken as a whole.
"Mobil Fueling Agreement" means that certain PMPA Mobil Fuel Franchise
-----------------------
Agreement dated as of the Closing Date, by and between Mobil Oil and the
Company.
"Mobil Lube Agreement" means that certain Master Supply Agreement for
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Resale of Oils and Greases dated as of the Closing Date, by and between Mobil
Oil and the Company.
"Mobil Oil" means Mobil Oil Corporation, a New York corporation.
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"Partners" has the meaning given to it in the Partnership Agreement.
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"Proceeding" means any action, suit, claim, demand, hearing, arbitration,
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proceeding (public or private) or governmental investigation that has been
brought by or against any governmental body or any other person.
4
"Real Property" means all real property owned or leased by the Company in
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connection with the operation of its business.
"Recapitalization" means (a) the formation of Holdings, and the admission
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of all of the Holding Partners to Holdings; (b) the equity investments in
Holdings by Volvo and Mobil pursuant to this Agreement; and (c) the purchase by
Holdings of the Seller Interests and the Xxxxxxxxx Interest, all in accordance
with the terms and conditions of this Agreement.
"Release" means the spilling, leaking, disposing, discharging, emitting,
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depositing, ejecting, leaching, escaping or any other release or threatened
release, however defined, whether intentional or unintentional, of any Hazardous
Material.
"Returns" shall mean all reports, estimates, declarations of estimated tax,
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information statements and returns relating to, or required to be filed in
connection with, any Taxes, including information returns or reports with
respect to backup withholding and other payments to third parties.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended.
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"Seller General Partner" means Xxxxx XX and, subsequent to the merger of
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Xxxxx XX into Seller LLC, Seller LLC, as the successor to Xxxxx XX.
"Senior Discount Notes" means the Discount Notes to be issued in the
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Discount Note Financing.
"Supplemental Indenture" means the supplemental indenture dated as of July
----------------------
23, 1999, amending the Indenture.
"Taxes" shall mean all taxes, however denominated, including any interest,
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penalties or other additions to tax that may become payable in respect thereof,
imposed by any federal, territorial, state, local or foreign government or any
agency or political subdivision of any such government, which taxes shall
include, without limiting the generality of the foregoing, all income or profits
taxes (including, but not limited to, federal income taxes and state income
taxes), real property gains taxes, payroll and employee withholding taxes,
unemployment insurance taxes, social security taxes, sales and use taxes, ad
valorem taxes, excise taxes, franchise taxes, gross receipts taxes, business
license taxes, occupation taxes, real and personal property taxes, stamp taxes,
environmental taxes, transfer taxes, workers' compensation, Pension Benefit
Guaranty Corporation premiums and other governmental charges, and other
obligations of the same or of a similar nature to any of the foregoing, which
the Group is required to pay, withhold or collect.
"Volvo Operating Agreement" means that certain Joint Operating and Supply
-------------------------
Agreement dated as of the Closing Date, by and between Volvo Parent and the
Company.
5
"Volvo Parent" means Volvo Trucks North America, Inc., a Delaware
------------
corporation.
1.2 Index of Other Defined Terms. In addition to the terms defined above,
----------------------------
the terms set forth on the Table of Defined Terms on page (iii) hereto shall
have the respective meanings given thereto in the sections indicated therein.
1.3 Purchase; Subscription. At the Closing, upon the terms and subject to
----------------------
the conditions of this Agreement
(a) Purchase of Seller Interests. At the Closing, upon the terms and
----------------------------
subject to the conditions set forth herein, the Holding Partners shall cause
Holdings to purchase the Seller Interests by payment to Seller, (i) by wire
transfer of immediately available funds, fifty-five million dollars
($55,000,000) in cash, and (ii) the issuance of a promissory note (the "Seller
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Note"), in registered form for purposes of Sections 871(h)(2)(B)(i) and
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881(c)(2)(B)(i) of the Code, with an Accreted Value on the date of issuance of
fourteen million, eight hundred twenty-nine thousand, eight hundred fifty-three
dollars ($14,829,853) with terms identical to those of, and under the same
indenture and CUSIP number and with the same registration and other features as,
the Senior Discount Notes to be issued in the Discount Note Financing (except
that the Seller Note shall not have warrants attached thereto) for the Seller
Limited Partnership Interest and the Seller LLC Interest (provided that the
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payment of the $55,000,000 in cash and the issuance of the Seller Note shall be
allocated pro rata between the Seller Limited Partnership Interest and the
Seller LLC Interest), constituting an aggregate amount equal to sixty-nine
million, eight hundred twenty-nine thousand, eight hundred fifty-three dollars
($69,829,853), and Seller shall surrender the Seller Interests to Holdings and
execute the Seller Limited Partner Interest Assignment and Assumption Agreement
and the Seller LLC Interest Assignment and Assumption Agreement attached hereto
as Exhibits H-2 and H-3, respectively, and shall thereafter cease to be a
------------ ---
partner in the Company and a member of the Seller LLC, it being understood that
if the private placement of Senior Discount Notes is oversubscribed and there
is, in the opinion of Holdings, sufficient unsatisfied demand to permit the sale
of the Seller Note, such Seller Note shall be offered, if desired by Seller,
and, if subscribed for in whole or in part, Seller shall receive cash at the
Closing in lieu of all or such portion of the Seller Note equal to the net
proceeds of such Seller Note.
(b) Contribution of Partnership Interests by Xxxxxxxx Partners and
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Mobil to Holdings. At the Closing, upon the terms and subject to the conditions
-----------------
set forth herein, each of the Xxxxxxxx Partners and Mobil shall contribute all
or a portion of their respective common limited partnership and preferred
limited partnership interests, as applicable, in the Company to Holdings in
exchange for a common limited partnership interest or Class A preferred limited
partnership interest in Holdings, as the case may be;
(c) Investment by Mobil. At the Closing, upon the terms and subject
-------------------
to the conditions set forth herein, the Holding Partners shall cause Holdings to
issue and deliver to Mobil the Mobil Class B Preferred Limited Partner Interest,
and Mobil shall pay to Holdings, by wire transfer of immediately available
funds, five million dollars ($5,000,000) in cash;
6
(d) Investment by Volvo. At the Closing, upon the terms and subject
-------------------
to the conditions set forth herein, the Holding Partners shall cause Holdings to
issue and deliver to Volvo the Volvo Limited Partner Interest and Volvo shall
pay to Holdings, by wire transfer of immediately available funds, thirty million
dollars ($30,000,000) in cash; and
(e) Purchase of Xxxxxxxxx Interest. At the Closing, upon the terms
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and subject to the conditions set forth herein, the Holding Partners shall cause
Holdings to purchase the Xxxxxxxxx Interest in accordance with the Xxxxxxxxx
Purchase Agreement and Xxxxxxxxx shall thereafter cease to be a partner in the
Company.
(f) Investment by Warrant Holdings. At the Closing, upon the terms
------------------------------
and subject to the conditions set forth herein, the Holding Partners shall cause
Holdings to issue and deliver to Warrant Holdings the Warrant Holdings Interest
and Warrant Holdings shall pay to Holdings, by wire transfer of immediately
available funds, nine million seven hundred thousand dollars ($9,700,000) in
cash.
1.4 Closing.
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(a) Location; Date. Subject to the conditions set forth in Article
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VII, unless this Agreement shall have been terminated pursuant to the provisions
of Section 9.1 hereof, the closing (the "Closing") of the transactions
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contemplated by this Agreement shall take place at the offices of Xxxxxx, Xxxx &
Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 on July 22, 1999,
or, in the event that the conditions set forth in Article VII will not have been
satisfied or waived by such date, on the third Business Day following the date
that each of the conditions set forth in Article VII will have been satisfied or
waived, or at such other place and time as the parties may mutually agree.
"Business Day" shall mean a day other than a Saturday or a Sunday or other day
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on which commercial banks in New York City are authorized or required by law to
close. The date and time of such Closing are herein referred to as the "Closing
-------
Date."
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(b) Amendment to Partnership Agreement. At the Closing, after the
----------------------------------
purchase of the Seller Interests, upon the terms and subject to the conditions
set forth herein, the Third Amended and Restated Limited Partnership Agreement
of Petro Stopping Centers, L.P., dated as of January 30, 1997 (the "Partnership
-----------
Agreement") shall be amended to reflect the consummation of the transactions
---------
contemplated by this Agreement and to reflect such other modifications and
consents as agreed upon by the parties thereto.
(c) Holdings Partnership Agreement. At the Closing, upon the terms
------------------------------
and subjects to the conditions set forth herein, the Holding Partners shall
enter into the Holdings Partnership Agreement.
(d) Further Assurances. On and after the Closing Date, the parties
------------------
hereto shall enter into, execute and deliver such other and further agreements,
documents and instruments, as any of them may reasonably request, for the
purpose of effectuating the transactions contemplated by this Agreement, in each
case upon the terms and conditions of Article VII below.
7
1.5 Partnership Agreement. The parties hereto agree and acknowledge that
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the transactions contemplated by this Agreement shall be exempt from and shall
not trigger, be governed by or give effect to, any of the provisions contained
in Article IX of the Partnership Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller hereby represents and warrants to Holdings and Volvo as follows:
2.1 Organization and Authority; Validity. Seller is a corporation, duly
------------------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware, Xxxxx XX is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and, upon its formation,
Seller LLC will be a limited liability company, duly organized, validly existing
and in good standing under the laws of the State of Delaware. Seller has the
requisite power and authority to enter into this Agreement and to carry out its
obligations hereunder. Neither the execution or delivery of this Agreement nor
the consummation of the transactions provided for hereby requires any further
corporate action on the part of Seller. This Agreement has been duly executed by
Seller and, assuming due execution by the other parties set forth on the
signature pages hereto, is a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in an action at law or a suit in equity).
2.2 Good Title. Seller owns beneficially and of record the Seller Limited
----------
Partnership Interest and will own, upon the merger of Xxxxx XX into Seller LLC,
the LLC Interest, Xxxxx XX owns beneficially and of record a .98% general
partner interest in the Company, and Seller LLC will own, upon the merger of
Xxxxx XX into Seller LLC, such .98% general partner interest in the Company, in
each case, free and clear of all claims, charges, liens, security interests,
pledges, restrictions or encumbrances of any nature whatsoever (collectively,
"Liens"), other than as set forth on Schedule 2.2. The transfer and delivery
----- ------------
of the Seller Interests to Holdings as contemplated by this
Agreement will, upon consummation of the Closing, transfer good and marketable
title thereto to Holdings, free and clear of all Liens.
2.3 No Prior Activities. Other than arising out of and relating solely
-------------------
to Petro GP's and Seller LLC's status as a general partner of the Company, Xxxxx
XX has not, and, upon its formation and merger with Xxxxx XX, and up until the
Closing, Seller LLC shall not have, incurred any obligation or liability
(whether accrued, absolute or contingent, and whether due or to become due)
other than (a) under this Agreement, (b) for Taxes and (c) for administrative
expenses incurred in the ordinary course of business (those expenses referenced
in (c), collectively, "Expenses"), which Expenses shall not be in excess of
--------
$200,000 per year and all of which Expenses and obligations referenced in (a)
above shall have been paid in full on or before
8
the Closing Date. Xxxxx XX is, and always has been and, upon its formation,
Seller LLC will be and always will have been, a single-purpose entity to own and
hold a general partner percentage interest in the Company for the benefit of
Seller and, except for such general partner percentage interests, has not owned,
leased, had the right to use or used any property, whether real, personal or
mixed, and has not engaged in any business or activity of any type or kind
whatsoever or entered into any agreement or arrangement with any person, in each
instance other than under this Agreement and other than arising out of and
relating solely to its status as a general partner of the Company or for
Expenses, which Expenses shall not be in excess of $200,000 per year and all of
which Expenses and obligations referenced in (a) above shall have been paid in
full on or before the Closing Date. Xxxxx XX has no employees and does not owe
any compensation, fees, or any other employee benefits to any director or
officer of Xxxxx XX or to any other person other than arising solely out of or
relating solely to its status as a general partner of the Company. Upon its
formation and merger with Xxxxx XX and up until the Closing, Seller LLC will
have no employees and will not owe any compensation fees, or any other employee
benefits to any director or officer of Seller LLC or to any other person other
than arising solely out of or relating solely to its status as a general partner
of the Company.
2.4 Filing of Returns. Except as provided in Schedule 2.4, all Returns
----------------- ------------
required to be filed by or on behalf of members of the Group have been duly
filed in a manner consistent with the Schedule K-1s (or equivalent forms) issued
by the Company to the Group, and such Returns are true, complete and correct in
all material respects. Except as provided in Schedule 2.4, all Taxes payable on
------------
the Returns or on subsequent assessments with respect thereto have been paid in
full, and no other Taxes or penalties are payable by the Group with respect to
items or periods covered by such Returns (whether or not shown on or reportable
on such Returns) or with respect to any period prior to the date of this
Agreement, other than Taxes which are not yet due. Each member of the Group has
withheld and paid over all Taxes required to have been withheld and paid over,
and complied with all information reporting and backup withholding requirements,
including maintenance of required records with respect thereto, in connection
with amounts paid or owing to any employee, creditor, independent contractor, or
other third party. Except as set forth on Schedule 2.4, an extension of time
------------
within which to file any such Return which has not been filed has not been
requested or granted.
2.5 Liens. Other than Liens for Taxes of the Company arising out of, and
-----
relating solely to, the Seller General Partner's status as a general partner of
the Company, there are no Liens on any of the assets of Seller General Partner
with respect to Taxes, other than Liens for Taxes not yet due and payable or for
Taxes that a member of the Group is contesting in good faith through appropriate
proceedings and for which appropriate reserves have been established.
2.6 Tax Returns. Seller or Xxxxx XX has furnished to the Company true
-----------
and complete copies of (a) relevant portions of income tax audit reports,
statements of deficiencies, closing or other agreements received by the Group or
on behalf of the Group relating to Taxes, and (b) all relevant portions of
Returns for the Group for all periods ending on and after the Group's 1997
taxable year. Xxxxx XX has never been a member of an affiliated group filing
consolidated returns other than a group of which Xxxxx XX and Seller were the
only members. Neither Xxxxx XX nor any member of the Group does business in or
derives income from any state, local,
9
territorial or foreign taxing jurisdiction other than those for which all
Returns have been furnished to the Company.
2.7 Tax Deficiencies; Audits; Statutes of Limitations. The Returns of
-------------------------------------------------
the Group have never been audited by a government or taxing authority, nor, to
the knowledge of Seller, is any such audit in process, pending or threatened
(either in writing or, to the knowledge of Seller, verbally, formally or
informally). No deficiencies exist or have been asserted (either in writing or,
to the knowledge of Seller, verbally, formally or informally) or, to the
knowledge of Seller, are expected to be asserted with respect to Taxes of the
Group, and no member of the Group has received notice (either in writing or, to
the knowledge of Seller, verbally, formally or informally) or, to the knowledge
of Seller, expects to receive notice that it has not filed a Return or paid
Taxes required to be filed or paid by it. The Group is neither a party to any
action or proceeding for assessment or collection of Taxes, nor, to the
knowledge of Seller, has such event been asserted or threatened (either in
writing or, to the knowledge of Seller, verbally, formally or informally)
against the Group or any of its assets. No waiver or extension of any statute
of limitations is in effect with respect to Taxes or Returns of the Group. Each
of Seller General Partner and all other members of the Group has disclosed on
its federal income tax returns all positions taken therein that could give rise
to a substantial understatement penalty within the meaning of Code Section 6662.
2.8 Special Tax Status. Seller is not a "foreign person" (as that term
------------------
is defined in Section 1445 of the Code).
2.9 No Withholding. The transaction contemplated herein is not subject
--------------
to the tax withholding provisions of Code Section 3406, or of subchapter A of
Chapter 3 of the Code or of any other provision of law.
2.10 Tax Status of Seller LLC. From its formation, Seller LLC will be,
------------------------
and will continue to be, disregarded as an entity separate from its owner for
federal tax purposes pursuant to Treasury Regulation Section 301.7701-3.
2.11 Accredited Investor. Seller is an "institutional accredited
-------------------
investor" as such term is defined in Regulation D under the Securities Act.
2.12 Investment. Seller is acquiring the Seller Note for investment for
----------
its own account, not as a nominee or agent, and not with the view to, or for
resale in connection with, any distribution thereof in violation of the
Securities Act, it being understood that the Seller Note may be transferred by
Seller to Seller's sole Stockholder ("Stockholder") and by Stockholder pro rata
-----------
to the eight (8) members of Stockholder (the "Members") upon Stockholder and the
Members affirming in writing to Holdings the representations and understandings
set forth in this Section 2.12 and in Section 2.13. All of Seller, Stockholder
and the Members are accredited investors within the meaning of Rule 501 under
the Securities Act. Seller understands that the Seller Note to be acquired in
exchange for the sale of the Seller Interests has not been, and will not be,
registered under the Securities Act by reason of a specific exemption from the
registration provisions of the Securities Act, the availability of which depends
upon, among other things, the
10
bona fide nature of the investment intent and the accuracy of Seller's
representations as expressed herein.
2.13 No Public Market. Seller understands that no public market now
----------------
exists for the Seller Note and acknowledges that the Seller Note must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. Seller is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resales of securities purchased in a private placement, subject to the
satisfaction of certain conditions, and that there can be no assurance that Rule
144 or any other exemption from the registration requirements of the Securities
Act will ever be available for resales of the Seller Note. Seller understands
that any subsequent transfer of the Seller Note is subject to certain
restrictions and conditions set forth in the indenture relating to the Seller
Note and Seller agrees to be bound by, and not to resell, pledge or otherwise
transfer the Seller Note except in compliance with, such restrictions and
conditions. Seller agrees that if it should sell or otherwise transfer the
Seller Note prior to the date which is two years after the original issuance of
the Seller Note, Seller will do so only (a) to Holdings or any of its
subsidiaries, (b) inside the United States in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act), (c) inside the United States to an "accredited
investor" (as defined in Rule 501 under the Securities Act) that, in conjunction
with such transfer, furnishes (or has furnished on its behalf by a U.S. broker-
dealer) to the Trustee (as defined in the indenture relating to the Seller
Note), a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Seller Note (the form of which
letter can be obtained from the Trustee), (d) outside the United States in
accordance with Regulation S under the Securities Act, (e) pursuant to the
exemption from registration provided by Rule 144 or another available exemption
under the Securities Act (if available) or (f) pursuant to an effective
registration statement under the Securities Act, and Seller further agrees to
provide to any person purchasing the Seller Note from Seller a notice advising
such purchaser that resales of the Seller Note are restricted as stated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Volvo, and with respect to
Sections 3.1(b) and 3.4(b), to Mobil, as follows:
3.1 Organization and Authority; Validity.
------------------------------------
(a) The Company is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company and its subsidiaries are each duly qualified to transact business and
are each in good standing in each of the jurisdictions in which the ownership or
leasing of the properties used in its business or the conduct of its business
requires such qualification, other than in such jurisdictions where the failure
to be so qualified and in good standing would not have a Material Adverse
Effect. The Company has all
11
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted. The Company has the
requisite power and authority to enter into this Agreement, and, immediately
after the consummation of the Recapitalization, shall have the power and
authority to enter into the Volvo Operating Agreement and the Supplemental
Indenture, and to carry out its obligations hereunder and thereunder. Neither
the execution or delivery of this Agreement, and, immediately after the
consummation of the Recapitalization, neither the execution or delivery of the
Volvo Operating Agreement and the Supplemental Indenture nor the consummation of
the transactions provided for hereby or thereby, requires or will require any
further partnership action on the part of the Company. This Agreement has been,
and, immediately after the consummation of the Recapitalization, the Volvo
Operating Agreement and the Supplemental Indenture will have been, duly executed
by the Company and, assuming due execution by the other parties set forth on the
signature pages hereto and thereto, is and will be a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in an
action at law or a suit in equity). The Company has delivered to Volvo complete
and correct copies of the Certificate of Limited Partnership and the Partnership
Agreement of the Company, in each case as amended and in effect on the date
hereof.
(b) Immediately after the consummation of the Recapitalization, the
Company will have the requisite power and authority to enter into the Mobil
Fueling Agreement and the Mobil Lube Agreement, and to carry out its obligations
thereunder. Neither the execution or delivery of the Mobil Fueling Agreement
nor the Mobil Lube Agreement immediately after the consummation of the
Recapitalization, nor the consummation of the transactions provided for thereby,
will require any further partnership action on the part of the Company.
Immediately after the consummation of the Recapitalization, the Mobil Fueling
Agreement and the Mobil Lube Agreement will have been duly executed by the
Company and, assuming due execution by the other parties set forth on the
signature pages thereto, will be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in an action at law or a
suit in equity).
3.2 Subsidiaries. Except as set forth on Exhibit 21 of the Company's
------------
Annual Report on Form 10-K for the year ended December 31, 1998, the Company has
no subsidiaries. All of the issued and outstanding shares of capital stock or
other equity interests in each subsidiary of the Company are validly issued,
fully paid and nonassessable and owned beneficially by the Company, free and
clear of any liens or other encumbrances, and there are no options, warrants or
other rights to acquire, or agreements or commitments pursuant to which any such
subsidiary is obligated to issue, sell, purchase or redeem shares of capital
stock or other equity interests in such subsidiary.
3.3 Capitalization. As of the date of this Agreement, (a) the general
--------------
partners and their respective general partner percentage interests held in the
Company are as set forth on Schedule
--------
12
3.3, (b) the limited partners and their respective common limited partnership
---
and preferred partnership interests held in the Company are as set forth on
Schedule 3.3 and (c) there are no other partners of the Company other than as
set forth on Schedule 3.3. Except as contemplated by this Agreement or as set
forth on Schedule 3.3, there are no options, warrants or other rights to
acquire, or agreements or commitments pursuant to which the Company is obligated
to issue, sell, purchase or redeem percentage interests in the Company. All of
the percentage interests in the Company have been duly authorized and validly
issued, and are fully paid and nonassessable.
3.4 Conflicts; Defaults.
-------------------
(a) The execution or delivery by the Company of this Agreement, and,
immediately after the consummation of the Recapitalization, the execution or
delivery by the Company of the Volvo Operating Agreement and the Supplemental
Indenture and the consummation of the transactions contemplated hereby or
thereby, will not (i) conflict with, result in a breach of the provisions of, or
constitute a default, an event of default or an event creating rights of
acceleration, termination or cancellation or a loss of rights, or result in the
creation or imposition of any encumbrance upon any of the assets of the Company
or any of its subsidiaries, under the Company's Certificate of Limited
Partnership, the Partnership Agreement, the organizational documents of any
subsidiary of the Company, any other material agreement to which the Company or
any of its subsidiaries is a party or, to the Knowledge of the Company, any
material statute, other law or regulatory provision affecting any of them, or
(ii) require the approval, consent or authorization of, or the making of any
declaration, filing or registration with, any third party or any foreign,
federal, state or local court, governmental authority or regulatory body, by or
on behalf of the Company or any of its subsidiaries, except for (a) the filing
of appropriate documents with the SEC under the Securities Act or the Exchange
Act and with the DOJ and the FTC, if any, (b) those matters set forth in
Schedule 3.4 hereto and (c) such conflicts, breaches, defaults, events,
------------
creations, impositions, approvals, consents, declarations, filings or
authorizations, which would not reasonably be expected to have a Material
Adverse Effect.
(b) The execution or delivery by the Company of the Mobil Fueling
Agreement and the Mobil Lube Agreement immediately after the consummation of the
Recapitalization, and the consummation of the transactions contemplated thereby,
will not (i) conflict with, result in a breach of the provisions of, or
constitute a default, an event of default or an event creating rights of
acceleration, termination or cancellation or a loss of rights, or result in the
creation or imposition of any encumbrance upon any of the assets of the Company
or any of its subsidiaries, under the Company's Certificate of Limited
Partnership, the Partnership Agreement, the organizational documents of any
subsidiary of the Company or, to the Knowledge of the Company, any other
material agreement to which the Company or any of its subsidiaries is a party or
any material statute, other law or regulatory provision affecting any of them,
or (ii) require the approval, consent or authorization of, or the making of any
declaration, filing or registration with, any third party or any foreign,
federal, state or local court, governmental authority or regulatory body, by or
on behalf of the Company or any of its subsidiaries, except for (a) the filing
of appropriate documents with the SEC under the Securities Act or the Exchange
Act and with the DOJ and the FTC, if any, (b) those matters set forth in
13
Schedule 3.4 hereto and (c) such conflicts, breaches, defaults, events,
------------
creations, impositions, approvals, consents, declarations, filings or
authorizations, which would not reasonably be expected to have a Material
Adverse Effect.
3.5 Litigation. Except as disclosed in Schedule 3.5 or in the SEC
----------
Documents, there are no actions, suits or proceedings or court orders or decrees
pending or, to the Knowledge of the Company, threatened, to which the Company is
a party or any of its properties is subject or by which it is bound before or by
any court or governmental agency, which if determined adversely to the interests
of the Company, would reasonably be expected to have a Material Adverse Effect.
3.6 Absence of Changes. Since March 31, 1999, there has not been any
------------------
material adverse change, or, to the Knowledge of the Company, any event or
development which, individually or together with such other events, could
reasonably be expected to result in a material adverse change, in the results of
operations or financial condition of the Company and its subsidiaries (taken as
a whole), except for (a) the execution and delivery of this Agreement and the
transactions to take place pursuant to this Agreement and (b) changes in the
economy in general or in the Company's industry in general and not specifically
relating to the Company.
3.7 No Undisclosed Liabilities. Except (a) as disclosed in the Company's
--------------------------
Annual Report on Form 10-K for the year ended December 31, 1998 and the
Company's Quarterly Report on Form 10-Q for the three-month period ended March
31, 1999 or in the notes thereto, (b) for the execution and delivery of this
Agreement and the transactions to take place pursuant to this Agreement and (c)
as set forth on Schedule 3.5, there are no liabilities against, relating to or
affecting the Company or any of its assets, whether known, unknown, fixed or
contingent, other than liabilities incurred in the ordinary course of business,
consistent with past practice, and such other liabilities which, in the
aggregate, would not have a Material Adverse Effect.
3.8 SEC Documents. The Company has previously delivered or made
-------------
available to Volvo complete and correct copies of all reports and statements
filed by the Company with the SEC under the Exchange Act since January 1, 1999
(the "SEC Documents"). As of their respective dates, none of the SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
3.9 Environmental Matters. Except as set forth on Schedule 3.9:
--------------------- ------------
(a) The Company has obtained all licenses which are required in
respect of its business, operations, assets and properties under applicable
Environmental Laws (the "Environmental Permits"), except (i) those which the
failure to obtain would not have a Material Adverse Effect and (ii) for those
Environmental Permits which, if obtained, the payment of any required filing or
application fee or fines in connection therewith would not have a Material
Adverse Effect. To the Knowledge of the Company, the Company is in compliance
in all material respects with the terms and conditions of all such licenses and
with any applicable Environmental Law, except for such noncompliance which would
not have a Material Adverse Effect.
14
(b) To the Knowledge of the Company, the operations of the Company and
the use and operations of the Real Property have been and are in compliance in
all material respects with all applicable Environmental Laws.
(c) To the Knowledge of the Company, except as permitted by the
Environmental Permits and in the ordinary course of business conducted in
compliance with applicable Environmental Laws (i) no Hazardous Materials are
located on the Real Property, or have been generated, treated, contained,
handled, located, used, manufactured, processed, buried, incinerated, deposited,
stored, or released on, under or about any part of the Real Property; and (ii)
the Real Property, and any improvements thereon, contain no asbestos, urea
formaldehyde, radon at levels above natural background, polychlorinated
biphenyls (PCBs) or pesticides.
(d) The Company has not received, nor, to the Knowledge of the
Company, is there proposed, threatened or anticipated with respect to the Real
Property, any notice, demand, request for information, complaint, summons,
investigation, order, agreement or litigation alleging in any manner that the
Company or its subsidiaries are responsible for any Release of Hazardous
Materials, or any costs arising under or in violation of any Environmental Laws.
To the Knowledge of the Company, there is no condition on the Real Property
which is in violation of any Environmental Laws or applicable governmental
requirements relating to Hazardous Materials.
(e) To the Knowledge of the Company, the Real Property is not and has
not been listed on the United States Environmental Protection Agency National
Priorities List of Superfund Sites, or any other list, schedule, law, inventory
or record of hazardous or solid waste sites maintained by any federal, state or
local agency, and the Company or its subsidiaries are not and have not been
designated as "potentially responsible parties" with respect to any such sites.
3.10 Financial Statements. The consolidated financial statements of the
--------------------
Company (including any related notes and schedules) included (or incorporated by
reference) (a) in its Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 and (b) in its Quarterly Report on Form 10-Q for the three-
month period ended March 31, 1999 fairly present, in conformity with GAAP
(except as may be indicated in the notes thereto), the consolidated financial
position of the Company as of the dates thereof and the consolidated results of
its operations and changes in its financial position for the periods then ended
(subject to normal year-end adjustments and the absence of footnotes in the case
of any unaudited interim financial statements).
15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SUBSCRIBERS
-------------------------------------------------
As specifically set forth below, Volvo, Mobil or each of Volvo and Mobil,
as applicable, hereby represents and warrants, as to itself only, to (a), upon
its formation, Holdings, and (b) with respect to Section 4.4, the other
Subscriber, as follows:
4.1 Accredited Investor. Such Subscriber is an "accredited investor" as
-------------------
such term is defined in Regulation D under the Securities Act.
4.2 Investment.
----------
(a) Mobil is acquiring the Mobil Interests for investment for its own
account, not as a nominee or agent, and not with the view to, or for resale in
connection with, any distribution thereof in violation of the Securities Act.
Mobil understands that the Mobil Interests to be acquired in exchange for its
investment in Holdings have not been, and will not be, registered under the
Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
Mobil's representations as expressed herein. Mobil understands and acknowledges
that the Mobil Interests are subject to restrictions on transfer pursuant to the
terms of the Holdings Partnership Agreement.
(b) Volvo is acquiring the Volvo Limited Partner Interest for
investment for its own account, not as a nominee or agent, and not with the view
to, or for resale in connection with, any distribution thereof in violation of
the Securities Act. Volvo understands that the Volvo Limited Partner Interest
to be acquired in exchange for its investment in Holdings has not been, and will
not be, registered under the Securities Act by reason of a specific exemption
from the registration provisions of the Securities Act, the availability of
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of Volvo's representations as expressed herein. Volvo
understands and acknowledges that the Volvo Limited Partner Interest is subject
to restrictions on transfer pursuant to the terms of the Holdings Partnership
Agreement.
4.3 No Public Market.
----------------
(a) Mobil understands that no public market now exists for the Mobil
Interests and acknowledges that the Mobil Interests must be held indefinitely
unless subsequently registered under the Securities Act or unless an exemption
from such registration is available. Mobil is aware of the provisions of Rule
144 promulgated under the Securities Act which permit limited resales of
securities purchased in a private placement, subject to the satisfaction of
certain conditions, and that there can be no assurance that Rule 144 or any
other exemption from the registration requirements of the Securities Act will
ever be available for resales of the Mobil Interests.
16
(b) Volvo understands that no public market now exists for the Volvo
Limited Partner Interest and acknowledges that the Volvo Limited Partner
Interest must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available.
Volvo is aware of the provisions of Rule 144 promulgated under the Securities
Act which permit limited resales of securities purchased in a private placement,
subject to the satisfaction of certain conditions, and that there can be no
assurance that Rule 144 or any other exemption from the registration
requirements of the Securities Act will ever be available for resales of the
Volvo Limited Partner Interest.
4.4 Organization; Authority; Validity. Such Subscriber is a corporation
---------------------------------
or limited liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware. Such Subscriber has the power
and authority to enter into this Agreement and to carry out its obligations
hereunder. Neither the execution or delivery of this Agreement nor the
consummation of the transactions provided for hereby requires any further action
on the part of such Subscriber. This Agreement has been duly executed by such
Subscriber and, assuming due execution by the other parties set forth on the
signature pages hereto, is a legal, valid and binding obligation of such
Subscriber, enforceable against such Subscriber in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in an action
at law or a suit in equity).
4.5 Good Title. Mobil owns beneficially and of record the Mobil Limited
----------
Partner Interest, free and clear of all Liens. The transfer and delivery of the
Mobil Limited Partner Interest to Holdings as contemplated by this Agreement
will, upon consummation of the Closing, transfer good and marketable title
thereto to Holdings, free and clear of all Liens.
ARTICLE V
COVENANTS OF THE HOLDING PARTNERS, THE COMPANY, SELLER AND THE SUBSCRIBERS
--------------------------------------------------------------------------
The parties hereto agree that:
5.1 Reasonable Best Efforts. Each of the parties hereto shall, and the
-----------------------
Holding Partners shall cause Holdings to, use their reasonable best efforts to
satisfy the conditions to Closing set forth in Article VII, as applicable, of
this Agreement and to consummate the transactions contemplated by this Agreement
as promptly as is reasonably practical, and at the Closing shall execute and
deliver the documents referred to in Article VII.
-----------
5.2 Further Assurances. Consistent with the terms and conditions hereof,
------------------
each of the parties hereto shall, and the Holding Partners shall cause Holdings
to, as applicable, execute and deliver such instruments, certificates and other
documents and take such other action as any other party to this Agreement may
reasonably require in order to carry out this Agreement and the transactions
contemplated hereby.
17
5.3 Access to Properties and Records. Between the date of this Agreement
--------------------------------
and the Closing Date, the Company shall afford to Volvo and its accountants,
counsel and other authorized representatives, reasonable access during normal
business hours to any and all premises, properties, contracts, commitments,
books, records and other information of the Company's business upon reasonable
written notice to the Company and shall cause the officers and employees of the
Company to furnish to Volvo and its authorized representatives any and all
financial, technical and operating data and other information pertaining to the
Company's business as Volvo shall from time to time reasonably request.
5.4 Formation of Holdings; Contribution by Holding Partners. In
-------------------------------------------------------
conjunction with the Closing, the Holding Partners shall form Holdings and (a)
Mobil and the Xxxxxxxx Partners shall contribute all or a portion of their
respective common limited partnership and preferred limited partnership
interests in the Company, as applicable, to Holdings in exchange for a common
limited partnership or Class A limited preferred partnership interest in
Holdings, as the case may be, (b) Mobil shall invest five million dollars
($5,000,000) in cash in exchange for the Mobil Class B Preferred Limited Partner
Interest; (c) Volvo shall invest thirty million dollars ($30,000,000) in cash in
exchange for the Volvo Limited Partner Interest; and (d) Warrant Holdings shall
invest nine million seven hundred thousand dollars ($9,700,000) in cash in
exchange for the Warrant Holdings Interest.
5.5 Discount Note Financing. In conjunction with the Closing and upon the
-----------------------
formation of Holdings, the Holding Partners shall cause Holdings to consummate
the Discount Note Financing.
5.6 Formation of Seller LLC; Merger of Xxxxx XX into Seller LLC. In
-----------------------------------------------------------
conjunction with the Closing, Seller will form Seller LLC, and shall cause Xxxxx
XX to merge with and into Seller LLC, with Seller LLC as the surviving entity.
5.7 Supplemental Indenture. The Company shall cause the Indenture to be
----------------------
amended in a manner consistent with Exhibit D hereto.
---------
5.8 Bank Financing. The Company shall obtain the Bank Financing
--------------
consistent with the terms and conditions as set forth in the commitment letter
on Exhibit H attached hereto.
---------
ARTICLE VI
TAX MATTERS
-----------
6.1 Tax Elections. Except as contemplated by this Agreement, no new
-------------
elections with respect to Taxes, or any changes in current elections with
respect to Taxes, affecting Seller General Partner or any of its assets shall be
made after the date of this Agreement without the prior written consent of
Holdings. Seller will cause Seller LLC, from formation, to be an entity
disregarded as separate from its owner for federal Tax purposes pursuant to
Treasury Regulation Section 301.7701-3, and Seller shall not make any election
to treat Seller LLC as other than as an
18
entity disregarded as separate from its owner for federal Tax purposes pursuant
to Treasury Regulation Section 301.7701-3.
6.2 Preparation of Returns and Payment of Taxes. Seller and Seller
-------------------------------------------
General Partner shall prepare and timely file all Returns and amendments thereto
required to be filed by them and the Group for any taxable period that both
begins before and ends on or before the Closing Date. Holdings shall have a
reasonable opportunity to review all Returns and amendments thereto. Each of
Seller, Seller General Partner and each member of the Group shall pay and
discharge all Taxes, assessments and governmental charges upon or against it or
any of its properties or assets for such taxable period, before the same shall
become delinquent and before penalties accrue thereon.
6.3 Nonforeign Affidavit. Seller shall furnish Holdings with the
--------------------
affidavit referred to in Section 1445(b)(2) of the Code, stating, under penalty
of perjury, the Seller's United States taxpayer identification number and that
the Seller is not a foreign person.
6.4 Cooperation and Records Retention. Seller and Holdings shall each
---------------------------------
provide the other, and Holdings shall cause Seller General Partner after the
Closing Date to provide Seller, with such assistance as may reasonably be
requested by any of them in connection with the preparation of any Return, audit
or other examination by any taxing authority or judicial or administrative
proceedings relating to liability for Taxes of or relating to Seller General
Partner. Seller shall provide Holdings, on or prior to the Closing Date, with a
copy of all of the Returns of, or relating to, the Seller General Partner, and
all records or other information (including, without limitation, all supporting
work schedules) which may be relevant to the Returns or Taxes of Xxxxx XX or
Seller LLC and which are held by any member of the Group. Seller hereby
represents and warrants that all such Returns, records and other information
provided to Holdings will be all of the Returns, records and information of, or
relating to, the Seller General Partner held by any member of the Group and such
Returns, records and information will be accurate, full and complete.
6.5 Access to Records. Between the date of this Agreement and the
-----------------
Closing Date, Seller and Seller General Partner shall give Holdings and its
authorized representatives full access to all properties, books, records and
Returns of or relating to Seller General Partner, whether in possession of
Seller General Partner, Seller or third-party professional advisors or
representatives in order that Holdings may have full opportunity to make such
investigations as it shall desire to make of the affairs of Seller General
Partner. Seller and Seller General Partner shall ensure that all third-party
advisors and representatives of Seller and Seller General Partner, including
without limitation accountants and attorneys, fully cooperate and be reasonably
available to Holdings in connection with such investigation.
6.6 Closing Tax Return and Allocations. Seller General Partner's and
----------------------------------
Seller's distributive share of the Company's income, gain, loss, deduction and
distribution for the taxable year of the Company that includes the Closing Date
shall be determined on the basis of an interim closing of the books of the
Company as of the close of business on the Closing Date and shall not be based
upon a proration of such items for the entire taxable year. Tax distributions
19
shall be made within 75 days of the Closing Date to all partners of the Company
with respect to taxable income allocated to such partners from the last Tax
distribution period of the Company through the Closing Date, based upon the
Company's good faith estimate of the amount of such payment, consistent with
past practices. The Company shall prepare for, and deliver to Seller, within
the time required by law, a federal Schedule K-1 (the "Closing K-1") and any
-----------
substantially similar state Return with respect to the Company for the period
which begins after the 1998 taxable year and includes the Closing Date (the
"Pre-Change Period"). In addition to those costs and expenses set forth in
-----------------
Section 10.1, Seller shall be solely responsible for all Return preparation or
Tax consulting fees (a) incurred by it after the Closing Date which relate to
the Seller Interests or (b) incurred by or billed to Holdings for the
preparation of any Return of Seller (not including the K-1 or similar forms or
schedules prepared by Holdings) or Tax consulting fees of Seller that occur
after the Closing Date.
6.7 Value of Assets of Holdings and the Company. Holdings shall
-------------------------------------------
prepare, or cause a third party to prepare, a schedule, which Seller shall have
the right to review and comment on (the "Allocation Schedule"), allocating the
-------------------
total payments made to Seller under this Agreement (including, for purposes of
this Section, any other consideration paid by the Company and any assumed
liabilities), among the assets of the Company in accordance with applicable law.
Holdings and Seller hereby agree to allocate the total amounts paid to Seller
under this Agreement (including assumed liabilities) for all Tax purposes in
accordance with the Allocation Schedule attached hereto. Holdings and Seller
shall file all Returns (including amended returns and claims for refund) in a
manner consistent with such allocation, and shall use their reasonable best
efforts to sustain such allocation in any subsequent tax audit or tax dispute.
6.8 Taxes Owed by Seller. Seller shall pay any Taxes incurred by Seller
--------------------
General Partner or Seller as a result of the transactions between Holdings and
Seller contemplated by this Agreement, and neither the Company, Holdings nor
Seller General Partner shall have any liability or obligation with respect
thereto. Any liability for such Taxes that may be imposed on the Company,
Holdings or Seller General Partner shall be indemnified by Seller pursuant to
and in accordance with Section 8.2(b).
6.9 Transfer Taxes. Notwithstanding anything to the contrary contained
--------------
in this Agreement, the Holdings Partners shall cause Holdings to pay all sales,
use, transfer and documentary Taxes and recording and filing fees incurred as a
result of the transactions between Holdings and Seller contemplated by this
Agreement.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
7.1 Conditions Precedent to the Obligations of the Subscribers.
----------------------------------------------------------
(a) Conditions to the Obligations of Volvo. The obligations of Volvo
--------------------------------------
under this Agreement shall be subject to the satisfaction of each of the
following conditions on or prior
20
to the Closing Date (except such of the following conditions as shall have been
expressly waived in writing by Volvo):
(i) Volvo shall have received the written opinion of (A) Akin,
Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel to Seller, addressed to Volvo and
dated as of the Closing Date, substantially in the form of Exhibit A-1, (B)
-----------
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to Holdings, addressed to Volvo,
substantially in the form of Exhibit B-1, (C) Xxxxx Xxxxxxxxxx Breed, Senior
-----------
Counsel to Mobil, addressed to Volvo and dated as of the Closing Date,
substantially in the form of Exhibit C-1; and (D) Kemp, Smith, Xxxxxx & Xxxxxxx,
-----------
P.C., counsel to the Company, addressed to Volvo, substantially in the form of
Exhibit B-3;
-----------
(ii) Holdings shall have delivered to Mobil, the Mobil Limited
Partner Interest, the Mobil Class A Preferred Limited Partner Interest and the
Mobil Class B Preferred Limited Partner Interest, and Mobil shall have paid to
Holdings $5,000,000 in cash by wire transfer of immediately available funds;
(iii) [intentionally omitted];
(iv) Holdings shall have delivered to Volvo the Volvo Limited
Partner Interest;
(v) The Volvo Operating Agreement shall have been executed and
delivered by each of the other parties thereto in substantially the form
attached hereto as Exhibit F;
---------
(vi) The representations and warranties of the Company
contained in Article III of this Agreement shall be true and correct as of the
date made and as of the Closing Date in all material respects as if made on and
as of the Closing Date. The Company shall have performed and complied in all
material respects with all of the covenants, conditions and agreements required
by this Agreement to be performed or complied with by it prior to or at the
Closing, and Volvo shall have received from the Company a certificate dated the
Closing Date confirming the foregoing;
(vii) The representations and warranties of Seller contained in
Article II of this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as if made on and as of the
Closing Date. Seller shall have performed and complied in all material respects
with all of the covenants, conditions and agreements required by this Agreement
to be performed or complied with by it prior to or at the Closing, and Volvo
shall have received from Seller a certificate dated the Closing Date confirming
the foregoing;
(viii) The representations and warranties of Mobil contained in
Section 4.4 of this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as if made on and as of the
Closing Date. Mobil shall have performed and complied in all material respects
with all of the covenants, conditions and agreements required by this Agreement
to be performed or complied with by it prior to or at the Closing, and Volvo
shall have received from Mobil a certificate dated the Closing Date confirming
the foregoing;
21
(ix) Holdings shall have delivered to Volvo a certificate in
the form of Exhibit I-1;
-----------
(x) Holdings shall have purchased the Seller Interests and the
Xxxxxxxxx Interest pursuant to the Xxxxxxxxx Purchase Agreement;
(b) Conditions to the Obligations of Mobil. The obligations of Mobil
--------------------------------------
under this Agreement shall be subject to the satisfaction of each of the
following conditions on or prior to the Closing Date (except such of the
following conditions as shall have been expressly waived in writing by Mobil):
(i) Mobil shall have received the written opinion of (A) Xxxxxx
& Xxxxx LLP, counsel to Volvo, addressed to Mobil and dated as of the Closing
Date, substantially in the form of Exhibit C-2 and (B) Xxxxxx, Xxxx & Xxxxxxxx
-----------
LLP, counsel to Holdings, addressed to Mobil, substantially in the form of
Exhibit B-1;
-----------
(ii) Holdings shall have delivered to Volvo the Volvo Limited
Partner Interest and Volvo shall have paid to Holdings $30,000,000 in cash by
wire transfer of immediately available funds;
(iii) Holdings shall have delivered to Mobil the Mobil Limited
Partner Interest, the Mobil Class A Preferred Limited Partner Interest and the
Mobil Class B Preferred Limited Partner Interest;
(iv) The Mobil Fueling Agreement shall have been executed and
delivered by each of the other parties thereto in substantially the form
attached hereto as Exhibit J;
---------
(v) The Mobil Lube Agreement shall have been executed and
delivered by each of the other parties thereto in substantially the form
attached hereto as Exhibit K;
---------
(vi) The representations and warranties of the Company contained
in Sections 3.1(b) and 3.4(b) of this Agreement shall be true and correct in all
material respects as of the date made and as of the Closing Date as if made on
and as of the Closing Date. The Company shall have performed and complied in all
material respects with all of the covenants, conditions and agreements required
by this Agreement to be performed or complied with by it prior to or at the
Closing, and Mobil shall have received from the Company a certificate dated the
Closing Date confirming the foregoing;
(vii) The representations and warranties of Volvo contained in
Section 4.4 of this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as if made on and as of the
Closing Date. Volvo shall have performed and complied in all material respects
with all of the covenants, conditions and agreements required by this Agreement
to be performed or complied with by it prior to or at the Closing, and Mobil
22
shall have received from Volvo a certificate dated the Closing Date confirming
the foregoing; and
(viii) Holdings shall have purchased the Seller Interests and the
Xxxxxxxxx Interest pursuant to the Xxxxxxxxx Purchase Agreement.
7.2 Conditions Precedent to the Obligations of Seller. The
-------------------------------------------------
obligations of Seller under this Agreement shall be subject to the satisfaction
of each of the following conditions on or prior to the Closing Date (except such
of the following conditions as shall have been expressly waived in writing by
Seller):
(a) Obligations to Seller. Holdings shall have (i) purchased the
---------------------
Seller Interests, (ii) paid to Seller $55,000,000 in cash by wire transfer of
immediately available funds, (iii) issued the Seller Note to Seller (and/or cash
proceeds pursuant to Section 1.3(a)), (iv) executed the Registration Rights
Agreement by and among Holdings, Petro Holdings Financial Corporation, a
Delaware corporation, Seller and the other parties set forth on the signature
pages thereto, in substantially the form attached hereto as Exhibit N (the
---------
"Registration Rights Agreement"), and (v) delivered to Seller a certificate in
the form of Exhibit I-2;
-----------
(b) Changes in Tax Laws. From and after April 2, 1999, there shall
-------------------
have been no change in applicable federal income Tax laws, rules, regulations,
interpretations or rulings (i) that causes a material increase in the Taxes owed
by a stockholder of Seller after the Closing Date solely from such stockholder's
ownership of shares in Seller at any time during the Seller's taxable year that
includes the Closing Date or (ii) that materially affects the Seller's ability
to use its tax attributes for the Seller's taxable year that includes the
Closing Date. For purposes of this Section 7.2(b), any changes in Tax rates or
the alternative minimum tax rates shall not be considered a change.
(c) Opinions. Seller shall have received the written opinion of (i)
--------
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel to Holdings, addressed to Seller and dated
as of the Closing Date, substantially in the forms of Exhibit B-1 and B-2, and
----------- ---
(ii) Xxxxx Xxxxxxxxxx Breed, Senior Counsel to Mobil, addressed to Seller and
dated as of the Closing Date, substantially in the form of Exhibit C-1.
-----------
(d) Partnership Agreements. (i) The Fourth Amended and Restated
----------------------
Partnership Agreement in substantially the form attached hereto as Exhibit E-1
-----------
shall have been executed and delivered by the parties set forth on the signature
pages thereto, and (ii) the Holdings Partnership Agreement in substantially the
form attached hereto as Exhibit E-2 shall have been executed and delivered by
-----------
the parties set forth on the signature pages thereto;
7.3 Conditions Precedent to the Obligations of the Holding Partners.
---------------------------------------------------------------
The obligations of the Holding Partners to cause Holdings to perform its
obligations under this Agreement shall be subject to the satisfaction of the
following conditions on or prior to the Closing Date (except such conditions as
shall have been expressly waived in writing by the Holding Partners):
23
(a) Opinions. Holdings shall have received the written opinion of (i)
--------
Xxxxx Xxxxxxxxxx Breed, Senior Counsel to Mobil, addressed to Holdings and dated
as of the Closing Date, substantially in the form of Exhibit C-1; (ii) Xxxxxx &
-----------
Xxxxx LLP, counsel to Volvo, addressed to Holdings and dated as of the Closing
Date, substantially in the form of Exhibit C-2; (iii) Akin, Gump, Strauss, Xxxxx
-----------
& Xxxx, L.L.P., counsel to Seller, addressed to Holdings and dated as of the
Closing Date, substantially in the form of Exhibit A-1; and (iv) Akin, Gump,
------------
Xxxxxxx, Xxxxx & Xxxx, L.L.P., tax counsel to Seller, addressed to Holdings and
dated as of the Closing Date, substantially in the form of Exhibit A-2;
-----------
(b) Mobil.
-----
(i) Mobil shall have paid to Holdings $5,000,000 in cash by wire
transfer of immediately available funds;
(ii) The representations and warranties of Mobil contained in
Article IV of this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as if made on and as of the
Closing Date. Mobil shall have performed and complied in all material respects
with all of the covenants, conditions and agreements required by this Agreement
to be performed or complied with by it prior to or at the Closing, and Holdings
shall have received from Mobil a certificate dated the Closing Date confirming
the foregoing;
(c) Volvo.
-----
(i) Volvo shall have paid to Holdings $30,000,000 in cash by
wire transfer of immediately available funds;
(ii) The representations and warranties of Volvo contained in
Article IV of this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as if made on and as of the
Closing Date. Volvo shall have performed and complied in all material respects
with all of the covenants, conditions and agreements required by this Agreement
to be performed or complied with by it prior to or at the Closing, and Holdings
shall have received from Volvo a certificate dated the Closing Date confirming
the foregoing;
(d) Seller.
------
(i) Seller shall have delivered to Holdings the Seller Interests
and shall have executed and delivered the Seller Limited Partner Interest
Assignment and Assumption Agreement and the Seller LLC Interest Assignment and
Assumption Agreement attached hereto as Exhibits G-2 and G-3, respectively; and
------------ ---
(ii) The representations and warranties of Seller contained in
Article II of this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as if made on and as of the
Closing Date. Seller shall have performed and complied in all material respects
with all of the covenants, conditions and agreements required
24
by this Agreement to be performed or complied with by it prior to or at the
Closing, and Holdings shall have received from Seller a certificate dated the
Closing Date confirming the foregoing.
7.4 Conditions Precedent to the Obligations of the Company. The
------------------------------------------------------
obligations of the Company under this Agreement shall be subject to the
satisfaction of the following condition on or prior to the Closing Date (except
such of the following conditions as shall have been expressly waived in writing
by the Company):
(a) Bank Financing. The Company shall have obtained the Bank
--------------
Financing consistent with the terms and conditions as set forth in the
commitment letter on Exhibit H attached hereto.
---------
(b) Opinions. The Company shall have received the written opinion of
--------
(i) Xxxxx Xxxxxxxxxx Breed, Senior Counsel to Mobil, addressed to the Company
and dated as of the Closing Date, substantially in the form of Exhibit C-1; and
-----------
(ii) Xxxxxx & Xxxxx LLP, counsel to Volvo, addressed to Holdings and dated as of
the Closing Date, substantially in the form of Exhibit C-2.
-----------
7.5 Conditions Precedent to the Obligations of All Parties. The
------------------------------------------------------
respective obligations of each party under this Agreement shall be subject to
the satisfaction of each of the following conditions on or prior to the Closing
Date (except such conditions as shall have been expressly waived in writing by
such party):
(a) Assignment and Assumption of Limited Partnership Interests. Each
----------------------------------------------------------
of the Xxxxxxxx Partners, Mobil and Holdings shall have executed and delivered a
Partnership Interest Assignment and Assumption Agreement attached hereto as
Exhibit G-1;
-----------
(b) Merger of Xxxxx XX into Seller LLC. Xxxxx XX shall have merged
----------------------------------
with and into Seller LLC, with Seller LLC as the surviving entity;
(c) Supplemental Indenture. The Supplemental Indenture shall have
----------------------
been executed and delivered by the parties thereto in substantially the form
attached hereto as Exhibit D;
----------
(d) Partnership Agreements. (i) The Fourth Amended and Restated
----------------------
Partnership Agreement in substantially the form attached hereto as Exhibit E-1
-----------
shall have been executed and delivered by the parties set forth on the signature
pages thereto, and (ii) the Holdings Partnership Agreement in substantially the
form attached hereto as Exhibit E-2 shall have been executed and delivered by
-----------
the parties set forth on the signature pages thereto;
(e) Litigation. No Proceeding shall be pending, and none of the
----------
parties to this Agreement shall have received written notice of any threatened
Proceeding, that seeks to restrain, enjoin or prohibit or declare illegal, or
that seeks damages regarding any part of the Agreement or the transactions
contemplated hereby, including, without limitation, the Seller Interests, the
Mobil Interests or the Volvo Limited Partner Interest;
25
(f) Consents. The parties shall have obtained all consents or
--------
approvals listed on Schedule 7.5 hereto necessary to consummate the transactions
------------
contemplated by this Agreement;
(g) Discount Note Financing. Holdings shall have consummated the
-----------------------
Discount Note Financing;
(h) Formation of Holdings; Contribution by Holding Partners. Holding
-------------------------------------------------------
Partners shall have formed Holdings and (i) the Xxxxxxxx Partners and Mobil
shall have contributed all or a portion of their respective common limited
partnership and preferred limited partnership interests in the Company, as
applicable, to Holdings in exchange for a common limited partnership or Class A
preferred limited partnership interest in Holdings, as the case may be, (ii)
Mobil shall have invested five million dollars ($5,000,000) in cash in exchange
for the Mobil Class B Preferred Limited Partner Interest and (iii) Volvo shall
have invested thirty million dollars ($30,000,000) in cash in exchange for the
Volvo Limited Partner Interest;
(i) Xxxxxxxxx Purchase Agreement. The Xxxxxxxxx Purchase Agreement in
----------------------------
substantially the form attached hereto as Exhibit L shall have been executed and
---------
delivered by Holdings and Xxxxxxxxx;
(j) Payment of Insurance Premium. The Partners (other than Seller and
----------------------------
Seller General Partner, whose proportion of the premium shall be paid by the
Company) shall have paid in full the premium for the environmental insurance
policy described in Exhibit M (the "Partner Insurance Policy");
--------- ------------------------
(k) Good Standings Certificates.
---------------------------
(i) Volvo shall have delivered certificates issued by the
Secretary of State of the State of Delaware evidencing the good standing of
Volvo and Volvo Parent in the State of Delaware;
(ii) Mobil shall have delivered certificates issued by the
Secretary of State of the State of Delaware and New York, respectively,
evidencing the good standing of Mobil and Mobil Oil in the State of Delaware and
New York, respectively;
(iii) Seller shall have delivered certificates issued by the
Secretary of State of the State of Delaware evidencing the good standing of
Seller and Seller LLC in the State of Delaware;
(iv) The Company shall have delivered a certificate issued by
the Secretary of State of the State of Delaware evidencing the good standing of
the Company; and
(v) The Holding Partners shall cause Holdings to deliver a
certificate issued by the Secretary of State of the State of Delaware evidencing
the good standing of Holdings.
26
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
-------------------------------
8.1 Survival of Representations and Warranties. Any claim made with
------------------------------------------
respect to the representations and warranties of the Company set forth in
Article III may be made until sixty (60) days after the completion of the audit
of the Company for the year ended December 31, 1999, except for the claims made
with respect to the representations and warranties set forth in Section 3.1,
which may be made at any time after the Closing. Any claim made with respect to
representations and warranties of the Subscribers set forth in Article IV, the
representations and warranties of Holdings in Exhibits I-1 and I-2 and the
------------ ---
representations and warranties of Seller set forth in Article II may be made at
any time after the Closing (other than claims made with respect to Sections 2.4
through 2.10, which may be made until the expiration of the applicable Tax
statute of limitations). All representations and warranties that survive the
Closing pursuant to this Section 8.1 shall survive as written, and are not
modified in any way by the fact that the conditions to closing in Article VII
set forth qualifications and modifications to such representations and
warranties that operate solely as conditions. The consummation of the
transactions contemplated herein at the Closing and the satisfaction of the
conditions to closing set forth in Article VII shall not be deemed a waiver of
any party's rights under this Article VIII with respect to any breach of any
such representation and warranty.
8.2 Indemnification by Seller.
-------------------------
(a) From and after the Closing Date, Seller agrees to indemnify,
defend and hold Holdings and Volvo harmless from and against any and all losses,
costs, liabilities, damages and expenses (including reasonable legal and other
expenses incident thereto, collectively, "Damages") resulting from Seller's
-------
nonperformance of any covenant, including, without limitation, those contained
in Article VI, or breach of any of its representations or warranties contained
in Article II of this Agreement; provided, however, that this Section 8.2(a)
-------- -------
does not relate to the breach of any representations and warranties or the
nonperformance of any covenants by Seller which relate to Taxes, which are the
subject of Section 8.2(b).
(b) Tax Indemnification by Seller. From and after the Closing Date,
-----------------------------
Seller shall indemnify, defend, and hold Holdings, Seller General Partner, and
the Company ("Tax Indemnitees") harmless from and against any and all Taxes that
Seller General Partner or Seller could be liable for (including, without
limitation, any obligation to contribute to the payment of any Taxes determined
on a consolidated, combined or unitary basis with respect to the Group),
excluding (i) any Taxes of the Company for which Seller General Partner is
liable solely as a result of its capacity as a general partner of the Company,
(ii) any Taxes for which Seller and Seller General Partner are jointly liable
for solely as a result of Seller General Partner's capacity as a general partner
of the Company, and (iii) any Taxes arising out of the treatment of a Tax item
by the Seller General Partner or Seller based upon information provided by the
Company, that are imposed on the Tax Indemnitees or the Tax Indemnitees' income,
business, property or
27
operations, for which the Tax Indemnitees may otherwise be liable, or that
result in liens or encumbrances on any assets of the Tax Indemnitees:
(w) for any Tax period of Seller General Partner or Seller that
ends on or before the Closing Date;
(x) with respect to any Tax period of Seller General Partner or
Seller beginning before the Closing Date but ending after the Closing Date, the
portion of such Taxes that relates to the portion of the Tax period ending on
and including the Closing Date;
(y) resulting by reason of the several liability of Seller
General Partner pursuant to Treasury Regulations Section 1.1502-6 or by reason
of Seller General Partner having been a member of any consolidated, combined or
unitary group on or prior to the Closing Date; or
(z) resulting from Seller's nonperformance of any covenant or
breach of any of its representations or warranties in each instance relating to
Taxes set forth in this Agreement.
For the avoidance of doubt, Seller's liability under this Section 8.2(b) shall
extend to any losses or expenses of the Tax Indemnitees incurred in responding
to an examination, audit, administrative or court proceeding, or other procedure
in which a Tax authority seeks to propose an adjustment, that if pursued
successfully, would give rise to a liability for Taxes for which a Tax
Indemnitee would have a claim for indemnification under this Section 8.2(b),
even if no Tax is ultimately payable as a result of such examination, audit,
administrative or court proceeding, or other procedure. For purposes of this
Section 8.2(b), in the case of any Taxes that are imposed on a periodic basis
and are payable for a Tax period that includes (but does not end on) the Closing
Date, the portion of such Tax which relates to the portion of such Tax period
ending on the Closing Date shall (a) in the case of any Taxes, other than Taxes
based upon or related to income or receipts, be deemed to be the amount of such
Tax for the entire Tax period multiplied by a fraction the numerator of which is
the number of days in the Tax period ending on the Closing Date and the
denominator of which is the number of days in the entire Tax period, and (b) in
the case of any Tax based upon or related to income or receipts (including
franchise taxes to the extent based upon income, receipts or earned surplus) be
deemed equal to the amount which would be payable if the relevant Tax period
ended on the Closing Date for the Seller General Partner and the Group.
(c) Tax Benefits. If the amount with respect to which any claim is
------------
made under Section 8.2 gives rise to a currently realizable Tax Benefit to
Holdings or its partners (or any affiliated group member with which such partner
files a consolidated, combined or unitary Return), the indemnity payment
required to be made by Seller in respect of such claim shall be reduced by the
amount of the Tax Benefit available to Holdings or its partners (or any
affiliated group member with which such partner files a consolidated, combined
or unitary Return). To the extent such indemnity claim does not give rise to a
currently realizable Tax Benefit, if the amount with respect to which any
indemnity claim is made by Seller gives rise to a subsequently realized Tax
Benefit to Holdings or its partners (or any affiliated group member with which
such
28
partner files a consolidated, combined or unitary Return), the party deriving
such Tax Benefit shall pay to Seller, when, as and if such Tax Benefit is
realized, the amount of such Tax Benefit to the extent that the Tax Benefit
would have resulted in a reduction of the amount paid by Seller under Section
8.2 if the Tax Benefit had been obtained in the year of such payment. For
purposes of this Section 8.2(c), a "Tax Benefit" means an amount by which the
Tax liability of the party (or any affiliated group with which such party files
a consolidated, combined or unitary Return) is reduced (including, without
limitation, by deduction, reduction of income by virtue of increased tax basis
or otherwise, entitlement to refund, credit or otherwise) plus any related
interest received from the relevant taxing authority. Where a party has other
losses, deduction, credits or items available to it, the Tax Benefit from any
losses, deductions, credits or items relating to the indemnity claim shall be
deemed to be realized only after the utilization of such other losses,
deductions, credits or items. For purposes of this Section 8.2(c), a Tax Benefit
will be considered to be realized or currently realizable for purposes of this
Section 8.2(c) at the time that it is reflected on a Return of the party
deriving such Tax Benefit. In the event that there should be a determination
disallowing the Tax Benefit, the Seller shall be liable to refund to the
indemnified party the amount of any related reduction previously allowed or
payments previously made to Seller under this Section 8.2(c). The amount of the
refunded reduction or payment shall be deemed a payment under paragraphs (a) or
(b) of this Section 8.2, as appropriate, and thus shall be paid subject to any
applicable reductions under this Section 8.2(c). In no event shall any
indemnified party under Section 8.2 be required to pay any amount to Seller
under this Section 8.2(c) if the aggregate amounts of all payments to Seller
under this Section 8.2(c) would exceed the amount of all payments made by the
Seller under Sections 8.2(a) and 8.2(b).
(d) Refunds. Holdings shall promptly pay to Seller any refund
-------
(including any interest paid with respect thereto) received by Holdings or the
Company (i) relating to Tax periods of the Seller General Partner ending on or
before the Closing, or (ii) attributable to any Tax paid by Seller under Section
8.2 hereof; provided, however, any refunds or credits of Taxes which are or
which result from a payment of any Taxes by Holdings or the Company, either
directly or indirectly, shall belong to Holdings or the Company. Any refunds or
credits of Taxes of Holdings or the Company relating to Tax periods beginning
after the Closing shall be for the account of Holdings or the Company.
8.3 Indemnification by Subscribers.
------------------------------
(a) Indemnification by Mobil.
------------------------
(i) Mobil agrees to indemnify, defend and hold Holdings
harmless, from and after the Closing Date, from and against any Damages
resulting from Mobil's nonperformance of any covenant or breach of any of its
representations or warranties contained in Article IV of this Agreement; and
(ii) Mobil agrees to indemnify, defend and hold the Company and
Volvo harmless, from and after the Closing Date, from and against any Damages
resulting from
29
Mobil's nonperformance of any covenant or breach of any of its representations
or warranties contained in Section 4.4 of this Agreement.
(b) Indemnification by Volvo.
------------------------
(i) Volvo agrees to indemnify, defend and hold Holdings
harmless, from and after the Closing Date, from and against any Damages
resulting from Volvo's nonperformance of any covenant or breach of any of its
representations or warranties contained in Article IV of this Agreement; and
(ii) Volvo agrees to indemnify, defend and hold the Company and
Mobil harmless, from and after the Closing Date, from and against any Damages
resulting from Volvo's nonperformance of any covenant or breach of any of its
representations or warranties contained in Section 4.4 of this Agreement.
8.4 Indemnification by the Company. The Company agrees to indemnify,
------------------------------
defend and hold (a) Volvo harmless, from and after the Closing Date, from and
against any Damages resulting from the Company's nonperformance of any covenant
or breach of any of its representations or warranties contained in Article III
of this Agreement and (b) Mobil harmless, from and after the Closing Date, from
and against any Damages resulting from the Company's breach of any of its
representations or warranties contained in Sections 3.1(b) and 3.4(b) of this
Agreement.
8.5 Indemnification by Holdings. The Holding Partners shall cause
---------------------------
Holdings to indemnify, defend and hold Seller harmless, from and after the
Closing Date, from and against any Damages resulting from Holdings' or the
Holding Partners' nonperformance of any covenant or the breach of any of
Holdings' representations or warranties set forth on Exhibits I-1 and I-2.
------------ ---
8.6 Limitation. Each of the parties hereto acknowledges and agrees
----------
that after the Closing, each party's sole and exclusive remedy with respect to
any and all claims relating to the subject matter of this Agreement shall be
pursuant to (a) the indemnification provisions set forth in this Article VIII
and (b) Section 10.12.
8.7 Indemnity Procedure.
-------------------
(a) Notice of Claim. Upon obtaining knowledge of any claim or
---------------
demand which has given rise to, or could reasonably give rise to, a claim for
indemnification hereunder, the party seeking indemnification ("Indemnitee")
----------
shall promptly give written notice ("Notice of Claim") of such claim or demand
---------------
to the other party ("Indemnitor"). Indemnitee shall furnish to the Indemnitor
----------
in reasonable detail such information as Indemnitee may have with respect to
such indemnification claim (including copies of any summons, complaint or other
pleading which may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or asserting the same). Subject
to the limitations set forth in this Section 8.7(a), no failure or delay by
Indemnitee in the performance of the foregoing shall reduce or otherwise affect
the obligation of Indemnitor to indemnify and hold Indemnitee harmless, except
to the extent that such failure or delay shall have adversely affected
Indemnitor's ability to
30
defend against, settle or satisfy any liability, damage, loss, claim or demand
for which Indemnitee is entitled to indemnification hereunder.
(b) Defense of Claim. If the claim or demand set forth in the Notice
----------------
of Claim given by Indemnitee is a claim or demand asserted by a third party,
Indemnitor shall have thirty (30) days after the Date of Notice of Claim to
notify Indemnitee in writing of its election to defend such third party claim or
demand on behalf of the Indemnitee. If Indemnitor elects to defend such third
party claim or demand, Indemnitee shall make available to Indemnitor and its
agents and representatives all records and other materials which are reasonably
required in the defense of such third party claim or demand and shall otherwise
cooperate with, and assist Indemnitor in the defense of, such third party claim
or demand, and so long as Indemnitor is defending such third party claim in good
faith, Indemnitee shall not pay, settle or compromise such third party claim or
demand; provided, however, that no claim giving rise to a Notice of Claim shall
-------- -------
be compromised or settled by Indemnitor except (i) with the prior written
consent of the Indemnitee, which consent shall not be unreasonably withheld or
(ii) where only the payment of money is involved in such settlement and
Indemnitee is fully released from such claim in connection with such settlement.
If Indemnitor elects to defend such third party claim or demand, Indemnitee
shall have the right to participate in the defense of such third party claim or
demand, at Indemnitee's own expense. If Indemnitor does not elect to defend
such third party claim or demand or does not defend such third party claim or
demand in good faith, Indemnitee shall have the right, in addition to any other
right or remedy it may have hereunder, at Indemnitor's expense, to defend such
third party claim or demand; provided, however, that (i) Indemnitee shall not
-------- -------
have any obligation to participate in the defense of, or defend, any such third
party claim or demand; (ii) Indemnitee's defense of or its participation in the
defense of any such third party claim or demand shall not in any way diminish or
lessen the obligations of Indemnitor under the agreements of indemnification set
forth in this Section 8.7; and (iii) no claim giving rise to a Notice of Claim
shall be compromised or settled by Indemnitee except with the prior written
consent of the Indemnitor, which consent shall not be unreasonably withheld.
The term "Date of Notice of Claim" shall mean the date the Notice of Claim is
-----------------------
effective pursuant to Section 10.2 of this Agreement.
8.8 Agreement with Respect to Schedule 8.8 Items. With respect to any
--------------------------------------------
Damages determined and imposed within two (2) years after the Closing Date in
connection with any of the matters set forth on Schedule 8.8, the financial
------------
responsibility for such Damages shall be as follows:
(a) In the event that such Damages are less than or equal to $200,000
in the aggregate (after taking into account the recovery and receipt by the
Company of any insurance proceeds (other then the Partner Insurance Policy) or
the reimbursement of the Company by any state or other governmental
environmental reimbursement fund), the Company shall pay any and all such
Damages.
(b) In the event that such Damages are less than or equal to
$1,000,000 (after taking into account the recovery and receipt by the Company of
any insurance proceeds (other then the Partner Insurance Policy) or the
reimbursement of the Company by any state or other
31
governmental environmental reimbursement fund), the Company shall pay any and
all such Damages up to an amount not in excess of $200,000, and the remaining
Damages shall be covered by the Partner Insurance Policy.
(c) In the event that such Damages are greater than $1,000,000 (after
taking into account the recovery and receipt by the Company of any insurance
proceeds (other then the Partner Insurance Policy) or the reimbursement of the
Company by any state or other governmental environmental reimbursement fund),
the Company shall pay the initial $200,000 of Damages, the next $800,000 of
Damages shall be covered by the Partner Insurance Policy, and all remaining
Damages in excess of $1,000,000 shall be paid by the Company.
ARTICLE IX
TERMINATION
-----------
9.1 Grounds for Termination. This Agreement may be terminated at any time
-----------------------
prior to the Closing Date:
(a) By the mutual written agreement of the Company, the Xxxxxxxx
Partners, the Subscribers and Seller;
(b) By Seller (if Seller is not then in breach of any term of this
Agreement), if any of the conditions set forth in Section 7.2 or 7.5 of this
Agreement shall have become incapable of fulfillment, and shall not have been
waived by Seller;
(c) By the Holding Partners (if neither the Holding Partners nor
Holdings is then in breach of any term of this Agreement), if the conditions set
forth in Section 7.3 or 7.5 of this Agreement shall have become incapable of
fulfillment, and shall not have been waived by Holdings;
(d) By the Company (if the Company is not then in breach of any term
of this Agreement), if the conditions set forth in Section 7.4 or 7.5 of this
Agreement shall have become incapable of fulfillment, and shall not have been
waived by the Company;
(e) By Volvo (if Volvo is not then in breach of any term of this
Agreement), if any of the conditions set forth in Section 7.1(a) or 7.5 of this
Agreement shall have become incapable of fulfillment, and shall not have been
waived by Volvo;
(f) By Mobil (if Mobil is not then in breach of any term of this
Agreement), if any of the conditions set forth in Section 7.1(b) or 7.5 of this
Agreement shall have become incapable of fulfillment, and shall not have been
waived by Mobil; or
(g) By any of the Company, the Holding Partners, the Subscribers or
Seller if the Closing shall not have occurred by July 31, 1999 (other than as a
result of a breach of this Agreement by the party seeking termination).
32
9.2 Effect of Termination. If this Agreement is terminated and the
---------------------
transactions contemplated hereby are not consummated as provided in Section 9.1,
this Agreement shall become void and of no further force and effect, except for
(a) Sections 10.1, 10.14 and 10.15, each of which shall survive such termination
and (b) any liability for any breach of a representation, warranty, covenant or
agreement contained in this Agreement causing or permitting such termination.
ARTICLE X
MISCELLANEOUS
-------------
10.1 Costs and Expenses. Except as expressly set forth otherwise in this
------------------
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, each of the parties to this Agreement shall bear its own expenses
incurred in connection with the negotiation, preparation, execution and closing
of this Agreement and the transactions provided for hereby, including, without
limitation, expenses of legal counsel, accountants, and other advisors incurred
at any time in connection with pursuing, negotiating or consummating the
proposed transactions contemplated by this Agreement; provided, however, that
-------- -------
in the event that the transactions contemplated by this Agreement are not
consummated for any reason (other than as a result of any breach of or default
under this Agreement by Seller), the Company shall promptly reimburse Seller for
its reasonable expenses incurred as described above.
10.2 Notices. Any notice, request, consent, approval or other document,
-------
instrument or communication that may be required or permitted to be delivered or
served hereunder shall be effective upon delivery and shall be in writing and
may be personally delivered, mailed by courier or sent by facsimile as follows
(until notice of a change thereof is given as provided herein):
If to the Subscribers:
Mobil Long Haul, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
33
Volvo Petro Holdings, LLC
c/o Volvo Trucks North America, Inc.
7900 National Service Road
X.X. Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Office of the General Counsel
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Seller:
Petro Holdings LP Corp.
c/o Chartwell Investments Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
34
If to Holdings:
Petro Stopping Centers Holdings, L.P.
x/x Xxxxx Xxxxxxxx Xxxxxxx, X.X.
0000 Xxxxxx Xx.
Xx Xxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Company:
Petro Stopping Centers, L.P.
0000 Xxxxxx Xx.
Xx Xxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Kemp, Smith, Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
10.3 Counterparts; Facsimile. This Agreement may be executed in two or more
-----------------------
counterparts and via facsimile, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement.
10.4 Entire Agreement. This Agreement (including the Exhibits and
----------------
Schedules hereto, which are incorporated herein and made a part hereof),
together with the Confidentiality Agreements, sets forth the entire
understanding and agreement between the parties as to the matters covered herein
and supersedes and replaces any prior understanding, agreement or
35
statement of intent, in each case, written or oral, including, without
limitation, the letters of intention and other correspondence heretofore
exchanged between the parties.
10.5 Captions. All headings contained in this Agreement are for
--------
convenience or reference only and shall not control or affect in any way the
meaning, construction or interpretation of any of the provisions hereof.
10.6 Governing Law. This Agreement shall be governed by the laws of
-------------
the State of Delaware (regardless of the laws that might be applicable under
principles of conflicts of law) as to all matters, including, without
limitation, matters of validity, construction, effect and performance.
10.7 No Third Party Rights. Nothing herein express or implied is
---------------------
intended or shall be construed to confer upon or give any person or entity,
other than the parties hereto, any rights or remedies under or by reason of this
Agreement.
10.8 Amendment and Waiver. This Agreement may be amended, modified
--------------------
or superseded, and any of the terms, covenants or conditions hereof may be
waived, at any time by a written instrument executed by the parties hereto or,
in the case of a waiver, by the party waiving compliance. The failure at any
time of any party hereto to require performance by another party of any
responsibility or obligation provided for in this Agreement shall in no way
affect the full right to require such performance at any time thereafter, nor
shall the waiver by any party of a breach of any provision of this Agreement by
another party constitute a waiver of the responsibility or obligation itself.
10.9 Construction and Representation by Counsel. The parties hereto
------------------------------------------
represent that in the negotiation and drafting of this Agreement they have been
represented by and relied upon the advice of counsel of their choice. The
parties affirm that their counsel have had a substantial role in the drafting
and negotiation of this Agreement and, therefore, the rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any Exhibit
attached hereto.
10.10 Further Assurances. Each party shall, at the request of any
------------------
other party, at any time and from time to time following the Closing promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to carry out the provisions of and the
transactions contemplated by this Agreement.
10.11 Binding Effect; No Assignment. This Agreement shall be binding
-----------------------------
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable without the prior written
consent of each of the parties hereto or by operation of law.
10.12 Specific Performance. Each of the parties hereto agrees that
--------------------
each of the other parties hereto shall be entitled, in addition to any other
remedies or damages available to any of
36
them in the event of any breach of this Agreement, to specific performance of
the obligations of the other parties under this Agreement.
10.13 Limitation of Liability. No officer, director, stockholder,
-----------------------
partner or employee of any party to this Agreement shall have any liability to
any party arising out of this Agreement or the transactions contemplated hereby.
10.14 Arbitration.
-----------
(a) Arbitrator. Any dispute or difference between or among the
----------
parties (such parties being referred to individually as a "Disputing Party,"
---------------
and, together, as the "Disputing Parties") arising out of this Agreement or the
-----------------
transactions contemplated hereby, including without limitation any dispute
between an Indemnitee and an Indemnitor under Article VIII, which the parties
are unable to resolve themselves shall be submitted to and resolved by
arbitration as herein provided. Any Disputing Party may request the American
Arbitration Association (the "AAA") to designate one arbitrator, who shall be
---
qualified as an arbitrator under the standards of the AAA, who shall be a
retired or former judge of any appellate or trial court of the State of New
York, any United States appellate court or the United States District Court for
any New York district, who is, in any such case, not affiliated with any party
in interest to such arbitration, and who has substantial professional experience
with regard to corporate legal matters.
(b) Location; Timing. The arbitrator shall consider the dispute at
----------------
issue in New York, New York, at a mutually agreed upon time within sixty (60)
days (or such longer period as may be acceptable to the Disputing Parties or as
directed by the arbitrator) of the designation of the arbitrator. The
arbitration proceeding shall be held in accordance with the rules for commercial
arbitration of the AAA in effect on the date of the initial request by the
Disputing Party, that gave rise to the dispute to be arbitrated (as such rules
are modified by the terms of this Agreement or may be further modified by mutual
agreement of the Disputing Parties) and shall include an opportunity for the
parties to conduct discovery in advance of the proceeding. Notwithstanding the
foregoing, the Disputing Parties shall agree that they will attempt, and they
intend that they and the arbitrator should use its best efforts in that attempt,
to conclude the arbitration proceeding and have a final decision from the
arbitrator within one hundred twenty (120) days from the date of selection of
the arbitrator; provided, however, that the arbitrator shall be entitled to
-------- -------
extend such one hundred twenty (120) day period for a total of two one hundred
twenty (120) day periods. The arbitrator shall deliver a written award with
respect to the dispute to each of the parties, who shall promptly act in
accordance therewith. Each Disputing Party to such arbitration agrees that any
award of the arbitrator shall be final, conclusive and binding and that they
will not contest any action by any other party thereto in accordance with an
award of the arbitrator. It is specifically understood and agreed that any
party may enforce any award rendered pursuant to the arbitration provisions of
this Section 10.14 by bringing suit in any court of competent jurisdiction.
37
(c) Costs. All costs and expenses attributable to the arbitrator
-----
shall be allocated among the parties to the arbitration in such manner as the
arbitrator shall determine to be appropriate under the circumstances.
10.15 Confidentiality. Any party receiving information (the "Receiving
--------------- ---------
Party") from another party hereto ("Disclosing Party") agrees to treat all
----- ----------------
information concerning the Disclosing Party furnished, or to be furnished, by or
on behalf of the Disclosing Party in accordance with the provisions of this
Section 10.15 (collectively, the "Information"), and to take, or abstain from
-----------
taking, other actions set forth herein. The Information will be used solely for
the purpose of evaluating the transactions contemplated hereby, and will be kept
confidential by the Receiving Party and its officers, directors, employees,
representatives, agents, and advisors; provided that (a) any of such Information
may be disclosed to the Receiving Party's officers, directors, employees,
representatives, agents, and advisors who need to know such Information for the
purpose of evaluating the transactions contemplated hereby, (b) any disclosure
of such Information may be made to which the Disclosing Party consents in
writing, and (c) such Information may be disclosed if so required by law. If
the transactions contemplated hereby are not consummated, the Receiving Party
will return to the Disclosing Party all material containing or reflecting the
information and will not retain any copies, extracts or other reproductions
thereof. Volvo acknowledges that it has entered into the Confidentiality
Agreements with the Company and Volvo acknowledges that any and all due
diligence conducted by Volvo shall be in accordance with and governed by the
terms thereof in addition to the terms of this Agreement.
10.16 Public Disclosure. No party hereto shall make public any release
-----------------
of information regarding the matters contemplated herein except (a) that each
party may continue such communications with employees, customers, suppliers,
franchisees, lenders, lessors, stockholders, and other particular groups as may
be legally required or necessary or appropriate and not inconsistent with the
best interests of the other party or the prompt consummation of the transactions
contemplated by this Agreement, (b) as required by law, or (c) pursuant to a
press release on mutually agreeable terms and timing. It is understood and
agreed that it is the intention of the parties to issue a press release mutually
agreeable to the parties regarding this Agreement immediately following the
execution hereof.
38
IN WITNESS WHEREOF, this Partnership Interest Subscription and Purchase
Agreement has been signed on behalf of each of the parties hereto as of the date
first above written.
PETRO STOPPING CENTERS, L.P. MOBIL LONG HAUL, INC.
By: /s/ XXXXX X. XXXXXXXX, XX. By: /s/ XXXXX X. XXXX
--------------------------- -------------------------
Name: Xxxxx X. Xxxxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: Executive Officer Title: President
PETRO HOLDINGS GP CORP. VOLVO PETRO HOLDINGS, LLC
By: Volvo Trucks North America, Inc.,
its Managing Member
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXX XXXXXXXX, XX
--------------------------- -------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx Xxxxxxxx, XX
Title: Vice President Title: Executive Officer
PETRO HOLDINGS LP CORP. XXXXX X. XXXXXXXX, XX.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXXXX, XX.
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx, Xx.
Title: Vice President
PETRO WARRANT HOLDINGS CORPORATION XXXXX X. XXXXXXXX, XX.
By: /s/ XXXXX X. XXXXXXXX, XX. By: /s/ XXXXX X. XXXXXXXX, XX.
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxxxx, Xx. Xxxxx X. Xxxxxxxx, Xx.
Title: President
JAJCO II, INC.
By: /s/ XXXXX X. XXXXXXXX, XX.
---------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
S-1
EXHIBIT A-1
-----------
ITEMS TO BE ADDRESSED IN OPINION OF COUNSEL TO SELLER
1. Seller is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware and Seller LLC is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.
2. Seller has the power and authority to execute, deliver and perform all
of its obligations under the Agreement. The execution and delivery of the
Agreement, and the consummation by Seller of the transactions contemplated
thereby, have been duly authorized by all requisite corporate action on the part
of Seller. Assuming the due execution of the Agreement by each of the other
parties thereto, the Agreement is a valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except (a) to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity), and (b) rights to indemnification and the limitations on
indemnification obligations under the Agreement may be subject to limitations of
public policy under federal and state securities laws.
A-1
EXHIBIT A-2
-----------
ITEMS TO BE ADDRESSED IN TAX OPINION OF COUNSEL TO SELLER
Holdings' acquisition of the Seller LLC Interest shall be treated for
federal Tax purposes as the acquisition of the general partner percentage
interest in the Company held by Seller LLC.
X-0
XXXXXXX X-0
-----------
ITEMS TO BE ADDRESSED IN OPINION OF COUNSEL
TO HOLDINGS DELIVERED TO MOBIL, VOLVO AND SELLER
1. Holdings is a limited partnership, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. Holdings has the power and authority to perform all of its obligations
under the Agreement. The consummation by Holdings of the transactions
contemplated by the Agreement has been duly authorized by all requisite
partnership action on the part of Holdings.
B-1
EXHIBIT B-2
-----------
ITEMS TO BE ADDRESSED IN OPINION OF COUNSEL
TO HOLDINGS DELIVERED TO SELLER
1. Each of the Issuers has been duly organized or incorporated and is
validly existing as a limited partnership or corporation in good standing under
the laws of the State of Delaware, and is duly qualified to do business as a
foreign limited partnership or corporation and is in good standing under the
laws of the State of Texas;
2. Each of the Issuers has full power (partnership or corporate, as the
case may be) to own or lease its properties and conduct its business as it is
now being conducted;
3. The Seller Note has been duly and validly authorized, executed and
delivered and constitutes the legal, valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with its terms and is
entitled to the benefits of the indenture (the "Indenture") pursuant to which
the Seller Note and the Senior Discount Notes are being issued among the Issuers
and State Street Bank and Trust Company, as trustee;
4. The Indenture has been duly and validly authorized, executed and
delivered and constitutes a legal, valid and binding instrument enforceable
against the Issuers in accordance with its terms;
5. The Registration Rights Agreement by and among the Issuers and the
other parties thereto (the "Registration Rights Agreement") has been duly
authorized, executed and delivered by the Issuers and constitutes a legal, valid
and binding instrument enforceable against the Issuers in accordance with its
terms;
6. Neither (i) the issuance and sale of the Seller Note by the Issuers,
(ii) the consummation of the Recapitalization, (iii) the compliance by the
Issuers with the provisions of the Seller Note, the Indenture, the Registration
Rights Agreement or the officer's certificate delivered by Holdings
substantially in the form of Exhibit I-2 to the Subscription Agreement, nor (iv)
-----------
the fulfillment of the terms thereof will (A) conflict with, result in a breach
of the provisions of, or constitute a default under Holding's Certificate of
Limited Partnership, the Holdings Partnership Agreement, or any other indenture
or other agreement or instrument listed as a material contract on Schedule I
----------
hereto and to which Holdings, Financial or the Company is a party, or, to our
knowledge, any material statute, other law or regulatory provision affecting the
Issuers, or (B) require the approval, consent or authorization of, or the making
of any declaration, filing or registration with, any third party or any foreign,
federal, state or local court, governmental authority or regulatory body, by or
on behalf of the Issuers, except for (1) the filing of appropriate documents
with the SEC under the Securities Act or the Exchange Act and with the DOJ and
the FTC, if any, and (2) such conflicts, breaches, defaults, events, creations,
impositions, approvals, consents, declarations, filings or authorizations, which
would not have a material adverse effect on the Issuers.
B-2
7. The consummation of the Recapitalization will not conflict with,
result in a breach of the provisions of, or constitute a default under the
Company's indenture dated as of February 1, 1997 relating to the Company's 10
1/2 Senior Notes due 2007, as amended by the Supplemental Indenture.
C-2
EXHIBIT B-3
-----------
ITEMS TO BE ADDRESSED IN OPINION OF COUNSEL
TO THE COMPANY
B-3
EXHIBIT C-1
-----------
ITEMS TO BE ADDRESSED IN OPINION OF COUNSEL
TO MOBIL
1. Mobil and Mobil Oil is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware and New York,
respectively.
2. Mobil has the power and authority to execute, deliver and perform all
of its obligations under the Agreement. The execution and delivery of the
Agreement, and the consummation by Mobil of the transactions contemplated
thereby, have been duly authorized by all requisite corporate action on the part
of Mobil. Assuming the due execution of the Agreement by each of the other
parties thereto, the Agreement is a valid and binding obligation of Mobil,
enforceable against Mobil in accordance with its terms, except (a) to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity), and (b) rights to indemnification and the limitations on
indemnification obligations under the Agreement may be subject to limitations of
public policy under federal and state securities laws.
3. Mobil Oil has the power and authority to execute, deliver and perform
all of its obligations under each of the Mobil Fueling Agreement and the Mobil
Lube Agreement. The execution and delivery of each of the Mobil Fueling
Agreement and the Mobil Lube Agreement, and the consummation by Mobil Oil of the
transactions contemplated thereby, have been duly authorized by all requisite
corporate action on the part of Mobil Oil. Assuming the due execution of each
of the Mobil Fueling Agreement and the Mobil Lube Agreement by each of the other
parties thereto, each of the Mobil Fueling Agreement and the Mobil Lube
Agreement is a valid and binding obligation of Mobil Oil, enforceable against
Mobil Oil in accordance with its terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity), and (b) rights to indemnification and the limitations on
indemnification obligations under each of the Mobil Fueling Agreement and the
Mobil Lube Agreement may be subject to limitations of public policy under
federal and state securities laws.
C-1
EXHIBIT C-2
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ITEMS TO BE ADDRESSED IN OPINION OF COUNSEL TO VOLVO
1. Volvo is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware. Volvo Parent is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.
2. Volvo has the power and authority to execute, deliver and perform all
of its obligations under the Agreement. The execution and delivery of the
Agreement and the consummation by Volvo of the transactions contemplated thereby
have been duly authorized by all requisite action on the part of Volvo.
Assuming the due execution of the Agreement by each of the other parties
thereto, the Agreement is a valid and binding obligation of Volvo, enforceable
against Volvo in accordance with its terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity), and (b) rights to indemnification and the limitations on
indemnification obligations under the Agreement may be subject to limitations of
public policy under federal and state securities laws.
3. Volvo Parent has the power and authority to execute, deliver and
perform all of its obligations under the Volvo Operating Agreement. The
execution and delivery of the Volvo Operating Agreement and the consummation by
Volvo Parent of the transactions contemplated thereby have been duly authorized
by all requisite corporate action on the part of Volvo Parent. Assuming the due
execution of the Volvo Operating Agreement by each of the other parties thereto,
the Volvo Operating Agreement is a valid and binding obligation of Volvo Parent,
enforceable against Volvo Parent in accordance with its terms, except (a) to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity), and (b) rights to indemnification and the limitations on
indemnification obligations under the Volvo Operating Agreement may be subject
to limitations of public policy under federal and state securities laws.
C-2
EXHIBIT D
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AMENDED BOND INDENTURE
D-1
EXHIBIT E-1
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FOURTH AMENDED AND RESTATED PARTNERSHIP AGREEMENT
E-1
EXHIBIT E-2
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HOLDINGS PARTNERSHIP AGREEMENT
E-2
EXHIBIT F
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VOLVO JOINT OPERATING AND SUPPLY AGREEMENT
F-1
EXHIBIT G-1
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PARTNERSHIP INTEREST ASSIGNMENT AND ASSUMPTION AGREEMENT
G-1
