EXHIBIT 10.7
AMENDMENT NO. 1
TO THE ASSET PURCHASE AGREEMENT
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AMENDMENT NO. 1, dated as of December 10, 1993, to the Asset
Purchase Agreement, dated as of July 22, 1993 (the "Asset Purchase Agreement"),
by and among BP Exploration & Oil Inc., an Ohio corporation ("BP"), Truckstops
Corporation of America ("TA," and together with BP, collectively, the "Sellers")
and TA Operating Corporation, a Delaware corporation (together with its
successors and assigns, the "Buyer").
Pursuant to Sections 10.2(a) and 10.13 of the Asset Purchase
Agreement, Buyer and Sellers desire to amend the Asset Purchase Agreement as set
forth herein. Capitalized terms used herein but not otherwise defined have the
respective meanings assigned to such terms in the Asset Purchase Agreement.
Accordingly, the parties hereby agree as follows:
1. AMENDMENT OF THE NAME OF TA. The Asset Purchase Agreement is
hereby amended by substituting "Truckstops Corporation of America" for each
reference to "Truckstops Corporation of America Inc."
2. AMENDMENT OF SECTION 1.1. The definitions set forth in Section
1.1 of the Asset Purchase Agreement are hereby amended:
(a) by deleting, in its entirety, the definitions of
"Trademark License Agreement".
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(b) by adding the following definitions to the foregoing
Section 1.1:
"Supplemental Agreement" means the Supple mental Agreement in
the form of Exhibit I.
"Jobber Agreement" means the Jobber Agreement in the form of
Exhibit R.
"Fuel Consignment Agreement" means the Fuel Supply Consignment
Agreement in the form of Exhibit S.
(c) by deleting the definition of "Ancillary Agreements" in
its entirety and substituting in lieu thereof the following definition:
"Ancillary Agreements" means, collectively, (i) the
Non-Competition Agreement, (ii) the Credit Card Agreement, (iii) the
Services Agreement, (iv) the Office Lease, (v) the Assignment and
Assumption Agreement, (vi) the TAFSI Assumption Agreement, (vii) the
Software License Agreement, (viii) the Jobber Agreement, (ix) the
Supplemental Agreement, (x) the Fuel Supply Agreement and (xi) the Fuel
Consignment Agreement.
3. AMENDMENT OF SECTION 2.1(i). Section 2.1(i) of the Asset Purchase
Agreement is hereby amended by inserting the words "and 4.9(d)(i)" immediately
after the reference to Section 4.9(c) contained in Section 2.1(i).
4. AMENDMENT OF SECTION 2.1(iii). Section 2.1(iii) of the Asset
Purchase Agreement is hereby amended by deleting such Section 2.1(iii) in its
entirety and substituting in lieu thereof the following:
(iii) all items of inventory primarily relating to the
Business notwithstanding how classified in Sellers' financial records,
including all hydro carbon inventories for use or sale (including
gasoline, diesel fuel, motor oil, automobile transmission fluid,
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anti-freeze and motor oil and fuel additives) and all non-hydrocarbon
inventories of food, beverages, tires, batteries and accessories and other
merchandise owned by Sellers, including, without limitation, all raw
materials, work-in-process, finished goods and samples, whether at the
Real Properties, including the Distri bution Center, or in transit to any
Real Property (collectively "Inventory"), other than fuel located at the
Consigned Truckstops ("Consigned Fuel") as identified in the Fuel
Consignment Agreement, which will be purchased after the Closing Date in
accordance with the terms of the Fuel Consignment Agreement and all
supplies and stores intended for consumption by the Business rather than
for resale, including, without limitation, paper towels, toilet paper and
cleaning supplies, whether at the Real Properties, including the
Distribution Center, or in transit to any Real Property (collectively
"Supplies");
5. AMENDMENT OF SECTION 2.5. Section 2.5(i) of the Asset Purchase
Agreement is hereby amended by deleting such Section 2.5(i) in its entirety and
substituting in lieu thereof the following:
(i) at the Closing, Buyer shall pay (i) to BP, by wire
transfer of immediately available funds, the sum of $81,000,000, and (ii)
to The British Petroleum Company p.l.c., the sum of $9,000,000
representing the consideration paid by Buyer under the terms of the
Non-Competition Agreement.
6. AMENDMENT OF SECTION 4.6. Section 4.6 of the Asset Purchase
Agreement is hereby amended by deleting "June 30, 1993" and replacing it with
"September 30, 1993".
7. AMENDMENT OF SECTION 4.7. Section 4.7 of the Asset Purchase
Agreement is hereby amended by deleting "June 30, 1993" and replacing it with
"September 30, 1993".
8. AMENDMENT OF SECTION 4.13(A). Section 4.13(a) of the Asset
Purchase Agreement is hereby amended by deleting the last sentence of Section
4.13(a) in its
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entirety and substituting in lieu thereof: "(The Agreements set forth in
Section 4.13(a) of the Disclosure Schedule are referred to as the "Scheduled
Contracts")."
9. AMENDMENT OF SECTION 4.18(E). Section 4.18(e) is hereby amended
by deleting clauses (i) and (ii) thereof and replacing them with the following:
(i) a list of full-time and part-time active employees on July 31, 1993;
and (ii) by means of the monthly report specified in Section 6.1(b)(v), to
the best of Sellers' knowledge, a list of full-time and part-time
employees whose employment has terminated since July 31, 1993 at each such
location and the date of each such termination.
10. AMENDMENT OF SECTION 4.21(A). Section 4.21(a) of the Asset
Purchase Agreement is hereby amended by deleting the first sentence thereof and
replacing it with the following:
Section 4.21(a) of the Disclosure Schedule sets forth a copy of the
current generic Uniform Franchise Offering Circular for the Business.
11. AMENDMENT OF SECTION 6.12(C). Section 6.12(c) of the Asset
Purchase Agreement is hereby amended by deleting the first sentence of such
Section 6.12(c) in its entirety and substituting in lieu thereof the following:
Buyer shall establish, effective as of January 1, 1994, one or more group
medical and dental insurance plan or plans for the Affected Employees (and
their dependents) which plan or plans shall have such terms and conditions
as Buyer, in its sole discretion, shall determine.
12. AMENDMENT OF SECTION 6.13(B). Section 6.13(b) of the Asset
Purchase Agreement is hereby amended by
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deleting such Section 6.13(b) in its entirety and substituting in lieu thereof
the following:
(b) PRICE. Buyer shall pay to BP at the time and in the manner
hereinafter set forth, by wire transfer of immediately available funds, a
total amount for the Inventory at or in transit to the Real Properties
purchased directly by Buyer in accordance with the values set forth in
Section 6.13(b) of the Disclosure Schedule. If, for any reason, Buyer
neglects to pay Sellers for any Inventory in transit, Buyer shall be
responsible to either pay Sellers for such Inventory if Sellers have
already paid a third party for such Inventory or Buyer shall pay such
third party if Sellers have not already paid such third party.
13. ADDITION OF SECTION 6.20. The Asset Purchase Agreement is hereby
amended by adding thereto a new Section 6.20 which shall read as follows:
SECTION 6.20. XXXX. Sellers agree that Xxxxx X. Xxxx ("Xxxx")
shall be eligible to continue participation in the applicable Sellers'
employee group medical plan under COBRA pursuant to the applicable plan's
enrollment provisions by paying the applicable contributions (as may be
adjusted from time to time) during the 18-month period following the
Closing Date and the full retiree and Seller contributions (as may be
adjusted from time to time) between the end of the 18-month period (or any
longer period required by law) at such time as he would have fulfilled the
eligibility requirements under that plan had his employment with Sellers
continued. Thereafter, he may participate in the applicable Sellers'
retiree group medical plan in accordance with its terms. If he is eligible
for employee or retiree group medical coverage from a subsequent employer,
he must participate in his subsequent employer's coverage in order to
participate in Sellers' retiree group medical coverage (Sellers' coverage
would be secondary to the subsequent employer's primary coverage,
irrespective of anything to the contrary in the subsequent employer's
plan). Notwithstanding the above, Sellers reserve the right to modify or
terminate any retiree group medical plan at any time. Sellers further
agree that Xxxx may elect to continue his dental benefits for up to 18
months following the Closing Date by paying the applicable contributions
(as may be adjusted from time to time). Sellers agree that Xxxx will
continue to receive from
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Sellers' life insurance coverage equal to one times his annual base pay at
no cost to him for 18 months following the Closing Date. Sellers and Buyer
agree that Buyer shall not assume any liability relating to any such
coverage for Xxxx, except as expressly provided in this Agreement.
14. ADJUSTMENT OF THE ADJUSTED CLOSING INVENTORY AMOUNT. A reserve
of $225,000 for Xxxxxxx-Xxxxx margin issues will be set forth on the statement
of Hydrocarbon Inventory prepared pursuant to Section 6.13(c)(ii)(1) of the
Disclosure Schedule, and will be deducted in calculating the Adjusted Closing
Inventory Amount pursuant to Section 6.13(c)(iv) of the Agreement.
15. AMENDMENT OF SECTION 7.2(F). Section 7.2(f) of the Asset
Purchase Agreement is hereby amended by deleting such section in its entirety
and replacing it with the following:
(f) MATERIAL REQUIRED PERMIT APPROVALS. All Material Required
Permit Approvals shall have been obtained without the imposition of any
conditions that are or would become applicable to the Business, the
Purchased Assets, Buyer or any Franchisee, which Buyer in good faith
reasonably determines would be materially burdensome upon the Business,
the Purchased Assets, Buyer or any Franchisee or Buyer's conduct of
business after the Closing. All such Material Required Permit Approvals
shall be in effect, and no Proceeding shall have been instituted or
threatened by any Governmental Authority with respect thereto as to which,
in Buyer's good faith opinion, there is a material risk of a determination
that would terminate the effectiveness of, or otherwise materially and
adversely modify the terms of, any such Material Required Permit
Approvals.
16. AMENDMENT OF SECTION 7.2(G). Section 7.2(g) of the Asset
Purchase Agreement is hereby amended by deleting such section in its entirety
and replacing it with the following:
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(g) MATERIAL REQUIRED CONTRACTUAL CONSENTS. Except for any Required
Contractual Consents the failure to obtain which would not have a Material
Adverse Effect or a Material Adverse Truckstop Effect, all Required
Contractual Consents shall have been obtained in written instruments
reasonably satisfactory to Buyer.
16.5 AMENDMENT OF SECTIONS 7.3(F) AND (G). Section 7.3(f) and
(g) are hereby revised to read as follows:
(f) REQUIRED CONSENTS. All Material Required Consents and all
Material Required Permit Approvals, shall have been obtained without any
conditions which would, in Seller's good faith opinion, expose Seller to a
material risk of liability.
17. AMENDMENT OF SECTION 8.4. Section 8.4 of the Asset Purchase
Agreement is hereby amended by (a) deleting "and" immediately prior to "(iii)"
in the first sentence thereof and replacing it with ",", (b) adding the
following immediately prior to the period ending said first sentence:
and (iv) to the extent Damages are incurred by a Lender Party (as
hereinafter defined), any inaccuracy of the representation and
warranty set forth in the second sentence of Section 4.9(a) of the
Agreement arising out of or relating to any of the matters listed in
clauses 2-4 of Section 4.9(a) of the Disclosure Schedule, which
representation and warranty shall, with respect to any such
inaccuracy, survive until the expiration of sixty (60) days
following the applicable statute of limitations
and (c) adding the following sentence immediately after said first sentence:
As used herein, the term "Lender Party" shall mean any of (a) the
Collateral Agent, any Lender, the Fronting Bank, the Swingline
Lender and any Senior Note Purchaser (as each such term is defined
in that certain Credit Agreement (the "Credit Agreement") dated as
of December 9, 1993 by and among Buyer, Chemical Bank and certain
other
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parties, but only to the extent any such party has succeeded to the
interest of Buyer (or any part thereof) under this Agreement; (b)
the successors and assigns of the parties covered by the foregoing
clause (a); (c) any successor to or assign of Buyer's interest (or
any part thereof) under this Agreement that succeeded to or was
assigned such Buyer's interest by purchasing any of the Real
Properties described in clauses 2-4 of Section 4.9(a) of the
Disclosure Schedule at a foreclosure sale, or by being given a
deed-in-lieu-of-foreclosure to any such Real Property, in connection
with any of the loans covered by the Credit Agreement and the Senior
Note Purchase Agreement (as defined in the Credit Agreement) and (d)
the successors and assigns of the parties identified in the
foregoing clause (c).
18. AMENDMENT OF SECTION 8.5. Section 8.5 of the Asset Purchase
Agreement is hereby amended by (i) deleting "and" immediately prior to "(iii)"
in the second sentence thereof and replacing it with "," and (ii) adding the
following immediately prior to the period ending said second sentence:
and (iv) to the extent Damages are incurred by a Lender Party, any
inaccuracy of the representation and warranty set forth in the
second sentence of Section 4.9(a) of this Agreement arising out of
or relating to any of the matters listed in clauses (2)-(4) of
Section 4.9(a) of the Disclosure Schedule.
19. EXHIBITS AND SCHEDULES. Pursuant to Section 10.13 of the Asset
Purchase Agreement, attached hereto are the form of Exhibits and Schedules as
agreed to by the Buyer and the Sellers. Notwithstanding the last sentence of
Section 10.13 of the Asset Purchase Agreement or Section 9.1(vii) of the Asset
Purchase Agreement, neither Buyer nor Sellers shall have any right to terminate
the Asset Purchase Agreement pursuant to Section 9.1(vii).
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20. PURCHASE PRICE ALLOCATION. Buyer and Sellers agree that the
purchase price shall be allocated in accordance with Exhibit A.
21. GUARANTIES. The parties acknowledge that certain third parties
have provided guaranties, letters of credit or deposits (collectively,
"Guaranties") to secure payment of amounts owed by certain customers (the
"Primary Obligors") of the Business. The parties intend that both Sellers and
Buyer be entitled to the benefits of the Guaranties in the event of nonpayment
by or insolvency of a Primary Obligor; Sellers with respect to the retained
accounts receivable and other Excluded Assets ("Pre-Closing Obligations"), and
Buyer with respect to accounts receivable and other rights to payment created
after the Closing Date ("Post-Closing Obligations"). In the event of nonpayment
or insolvency of a Primary Obligor, Sellers and Buyer will cooperate in
collecting on the Guaranties. If the value of the Pre-Closing Obligations owed
by such Primary Obligor exceeds the value of the Post-Closing Obligations,
Sellers will control the collection process under the relevant Guaranty;
otherwise, Buyer will control the collection process. In either case, the party
controlling collection will act in a commercially reasonable manner and will
keep the other informed of the process of collection. In the event the net
proceeds, after costs of collection, are less than the sum of the Pre-Closing
Obligations and the Post-Closing Obligations then owing from the Primary
Obligor, the
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net proceeds will be shared pro rata in relation to the ratio of the amounts
owing.
22. REBATE. For the period from the Closing Date through January 5,
1994, BP will pay Buyer a fee (the "Transition Fee") for diesel fuel: sold (i)
to Buyer under the Fuel Supply Agreement; and (ii) on consignment to third
parties by Buyer as agent for Seller under the Fuel Consign ment Agreement.
Subject to the cap set forth below, the Transition Fee will equal the difference
between the terminal based price of product and the weighted average of the
(OPIS (Low) Quotation less one half cent ($0.005) per gallon) appropriate to
each terminal. The Transition Fee shall be paid on or before January 25, 1994,
and shall equal:
Gallons sold times (BP Terminal price - (OPIS (Low) -
$0.005))
The Transition Fee shall in no event exceed Two Hundred Eighteen
Thousand Dollars ($218,000).
23. COUNTERPARTS. This Amendment No. 1 may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective
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authorized officers as of the day and year first above written.
BP EXPLORATION & OIL INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
TRUCKSTOPS CORPORATION OF AMERICA
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Attorney-in-Fact
TA OPERATING CORPORATION
By: /s/ Rowan X.X. Xxxxxx
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Name: Rowan X.X. Xxxxxx
Title: Vice President & Assistant Secretary
