EXHIBIT 10.2
AMENDMENT NO. 1 TO THE ASSET PURCHASE AGREEMENT
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AMENDMENT NO. 1, dated as of April 13, 1993, to the Asset Purchase
Agreement, dated as of November 23, 1992 (the "Asset Purchase Agreement"), by
and between Union Oil Company of California, a California corporation
("Seller"), and National Auto/Truckstops, Inc., a Delaware corporation (together
with its successors and assigns, "Buyer").
Pursuant to Section 9.2(a) of the Asset Purchase Agreement, Buyer
and Seller desire to amend the Asset Purchase Agreement in order to amend and
clarify certain of the terms and provisions contained therein. Capitalized terms
used herein but not otherwise defined have the respective meanings specified in
the Asset Purchase Agreement.
Accordingly, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1.1. The definitions of
"Ancillary Agreements" and "Effective Time" in Section 1.1 of the Asset Purchase
Agreement are hereby amended by deleting such definitions in their entirety and
substituting in lieu thereof the following definitions, respectively:
"Ancillary Agreements" means, collectively, (i) a Xxxx of
Sale, Assignment and Assumption Agreement, (ii) a Non-Competition
Agreement, (iii) an Office Sublease, (iv) a Credit Card Agreement, (v) a
Trademark License Agreement, (vi) a Software License Agreement and (vii) a
Services Agreement, each in a form to be agreed to by Buyer and Seller.
"Effective Time" means 11:59 p.m. Central Time on the Closing
Date.
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2. AMENDMENT OF SECTION 2.1(VII). Section 2.1 (vii) of the Asset
Purchase Agreement is hereby amended by deleting such Section 2.1(vii) in its
entirety and substituting in lieu thereof the following:
(vii) to the extent that the following are held or used in the
conduct of the business of the A/TS Network (but excluding the marks
"Pure" and "Firebird" and any of the following which are (x) to be
licensed to Buyer pursuant to the Trademark License Agreement to be
executed by Buyer and Seller or (y) are not set forth in Section 3.19 of
the Disclosure Schedule), all of Seller's right, title and interest in
each patent and patent application, copyright, copyright application,
publication (including, without limitation, Road King magazine),
trademark, trademark registration, trade name, xxxx (including, without
limitation, (i) Road King, (ii) ATS Managers Quarterly, (iii) American
Traditions, (iv) Auto/Truckstop Restaurant, (v) Bring 'Em Back Happy, (vi)
King of the Road, (vii) Signature Network Protection, (viii) TAM, (ix) TLC
and (x) Truckers Bucks), service xxxx, product xxxx, logo and other
commercial symbol (in any such case, whether or not registered or to be
registered in the United States of America or elsewhere) applied for,
issued to or otherwise owned by Seller and held or used in the business of
the A/TS Network or with regard to any of the Acquisition Assets;
3. AMENDMENT OF SECTION 3.10. Section 3.10 of the Asset Purchase
Agreement is hereby amended by deleting such Section 3.10 in its entirety and
substituting in lieu thereof the following:
3.10 SUFFICIENCY OF AND TITLE TO THE TRANSFERRED ASSETS. Upon
consummation of the transactions contemplated by this Agreement, Seller
will have assigned, transferred and conveyed to Buyer, free and clear of
all Liens and Encumbrances (other than Permitted Encumbrances), all of the
Acquisition Assets, exclusive of the Excluded Assets and assets
transferred prior to Closing in the ordinary course of business or
otherwise transferred as permitted hereunder. The business of the A/TS
Network is a going concern and the transfer of the Acquisition Assets to
Buyer pursuant to this Agreement (together with sufficient working capital
supplied by Buyer, adequate
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arrangements for the supply of motor fuel and other petroleum products not
provided pursuant to a products agreement between Seller and Buyer, and
the rights of Buyer under the Office Sublease, the Credit Card Agreement,
the Trademark License Agreement, the Software License Agreement and the
Services Agreement) will enable Buyer to operate such business as Seller
operated it immediately prior to the Closing with all operations of such
business unimpaired in any material respect immediately after the Closing,
subject to the exclusion of the Excluded Locations.
4. AMENDMENT OF SECTION 3.15. Section 3.15 of the Asset Purchase
Agreement is hereby amended by adding the following to the end of such Section
3.15:
Seller makes no representation in this Section 3.15 as to its compliance
or non-compliance with the Americans with Disabilities Act (the "ADA").
5. AMENDMENT OF ARTICLE III. Article III of the Asset Purchase
Agreement is hereby amended by adding the following new Section 3.24 to the end
of such Article III:
3.24 OWNERSHIP OF ACQUISITION ASSETS. From November 23, 1992
to and including the Closing Date, the Acquisition Assets (together with
the assets being conveyed to Buyer pursuant to each of the Blythe
California Purchase Agreement, Buttonwillow California Purchase Agreement,
Ontario California Purchase Agreement, Redding California Purchase
Agreement, Sacramento California Purchase Agreement and Santa Nella
California Purchase Agreement, each dated as of November 23, 1992, between
Seller and Buyer, collectively, the "California Assets") are owned solely
by Seller and not by any subsidiary of Seller, and the Acquisition Assets
together with the California Assets constitute less than two-thirds in
gross value of all the assets (excluding money) used in trades and
businesses carried on by Seller, all within the meaning of Section 279 of
the Internal Revenue Code of l986, as amended, and the Treasury
regulations issued thereunder, all as in effect as of the Closing Date.
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6. AMENDMENT OF ARTICLE V. Article V of the Asset Purchase Agreement
is hereby amended by adding the following new Section 5.18 to the end of such
Article V:
5.18 POST-CLOSING COVENANT. Seller agrees promptly after the
Closing Date to perform the tasks set forth on Section 5.18 of the
Disclosure Schedule.
7. AMENDMENT OF SECTION 7.1. Section 7.1 of the Asset Purchase
Agreement is hereby amended by deleting Section 7.1(i) in its entirety and
substituting in lieu thereof the following:
(i) any claim pursuant to PMPA or any similar or related
federal or state statute or regulation (including any such claim arising
out of or resulting from the execution and delivery of this Agreement or
the sale of any of the Acquisition Assets to Buyer) but excluding (x) any
such claim to the extent to which it arises out of or results from events
which occur after the Closing Date or (y) any such claim against Buyer
which arises out of or results from actions which are alleged will be
taken by Buyer after the Closing Date (provided, that any claim described
in this clause (y) shall not be excluded from the scope of Seller's
indemnity in this paragraph (i) if the claim against Buyer is withdrawn or
dismissed or it is determined that neither Buyer nor Seller has any
Liability in respect of such claim);
(j) Seller's non-compliance as of the Effective Time with the
ADA;
(k) any claim arising out of, relating to or in connection
with SLIDELL 76 AUTO/TRUCK PLAZA, INC. v. UNION OIL COMPANY OF CALIFORNIA,
No. 92-14752 (22nd Judicial District Parish of St. Tammany) (the "Slidell
Litigation"), but excluding any such claim to the extent to which it
arises out of or results from events which occur after the Closing Date.
Without limiting the generality of the foregoing, in the event that Buyer
is ordered to sell the auto/truckstop facility at issue in the Slidell
Litigation (the "Slidell A/TS") to the plaintiff in the Slidell Litigation
for an amount (a "Court Ordered Amount") then Buyer may elect to have the
Appraisal Value (as defined below) of the Slidell A/TS determined.
"Appraisal Value" means the fair market value of the Slidell A/TS (giving
due considera-
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tion to all relevant factors including, without limitation, the
replacement cost of the Slidell A/TS and the related Acquisition Assets),
as determined by a qualified appraiser who is a member of the Appraisal
Institute, selected by the mutual agreement of the parties hereto (or, if
the parties cannot agree, selected by the American Arbitration
Association). If the amount of the Appraisal Value is greater than the
Court Ordered Amount, then Seller shall pay to Buyer an amount equal to
the excess of (x) the Appraisal Value over (y) the Court Ordered Amount.
If the Appraisal Value is less than the Court Ordered Amount, then Buyer
shall pay to Seller the excess of (x) the Court Ordered Amount over (y)
the Appraisal Value;
(l) any claim arising out of, relating to or in connection
with PORTLAND 76 AUTO/TRUCK PLAZA, INC. v. UNION OIL COMPANY OF
CALIFORNIA, DBA UNOCAL, Case No. 92-1635 JE, United States District Court,
District of Oregon, but excluding any such claim to the extent to which it
arises out of or results from events which occur after the Closing Date;
(m) Seller's failure to deliver at the Closing any of the Real
Estate Permits (as defined below) (it being understood and agreed that for
purposes of this Section 7.1(m) the Damages for which Seller shall
indemnify Buyer shall include, without limitation, any and all costs and
expenses incurred by Buyer in obtaining any of the Real Estate Permits
which Seller failed to deliver at the Closing (the "Non-Delivered Real
Estate Permits") and any and all costs and expenses incurred by Buyer in
taking any remedial action in respect of the Acquisition Assets which is
reasonably necessary in order to obtain any of the Non-Delivered Real
Estate Permits. (As used in this Section 7.1(m), "Real Estate Permits"
means, with respect to each parcel of Real Property, the following:
(i) with respect to each improvement located on the Real Property,
either (A) the permanent certificate or certificates of
occupancy or completion, as the same may have been amended
from time to time, that were required to be issued by the
appropriate Governmental Authorities ("Certificates") at the
time of construction of such improvement, (B) a letter from
the appropriate Governmental Authorities stating that no
Certificates were required for the construction of such
improvement or (C) a letter from the appro- priate
Governmental Authorities stating that the fact that
Certificates were not issued
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for such improvement or that Certificates may have been issued
for such improvement but cannot be located is not a violation
of law that will result in either fines or penalties being
assessed against the Buyer, the Real Property or any
subsequent owner thereof, or in the Buyer or any subsequent
owner of the Real Property being required to take remedial
action in order for the Real Property to be legally used,
occupied or operated;
(ii) all licenses, permits and authorizations of Governmental
Authorities (other than Certificates, all applications, plans
and filings that were necessary for the issuance of any
Certificate and all licenses, permits and authorizations which
were no longer required once a Certificate was issued) that
(A) were required for the construction of each improvement
located upon the Real Property (or, in the alternative,
written confirmation to the effect set forth in subclause
(i)(C) above with respect to such licenses, permits and
authorizations) and (B) are necessary for the current
operation of the Real Property;
(iii) all applications, if any (and all documents filed in
connection therewith) currently pending before any
Governmental Authority for the issuance of any of the
documents described in (i) and (ii) above; and
(iv) either (A) written confirmation from the applicable zoning
commission or other appro- priate Governmental Authority
stating that the Mortgaged Property as built complies with
existing land use and zoning ordinances, regulations and
restrictions applicable to such property, (B) an opinion from
local counsel to the same effect as covered by clause (A)
above or (C) a zoning endorsement in connection with the
Buyer's (and the Buyer's secured lenders) title insurance
policies covering such Real Property.)
Buyer agrees that (a) before taking any remedial action described in this
Section 7.1(m), it will provide Seller with written notice that it intends
to take such remedial action and (b) subject to the further provisions of
this Section 7.1(m), it will refrain from taking such remedial action if,
beginning within 15 days after receiving such notice Seller, at its sole
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cost and expense and subject to the above indemnity with respect to all
Damages incurred in connection therewith, either (i) diligently pursues in
judicial proceedings a claim that such remedial action is not necessary or
diligently attempts (for a period not to exceed 30 days) to convince the
applicable Governmental Authorities that such remedial action is not
necessary, provided that at all times and from time to time during such
proceedings or attempt (y) neither Buyer, the Real Estate nor the
operation, use or occupancy thereof, in Buyer's reasonable good-faith
judgment, is or is likely to be adversely affected as a result of such
remedial action not being taken and (z) all fines assessed against the
Real Estate or Buyer as a result of such remedial action not being taken
or the applicable Non-Delivered Real Estate Permits not being obtained are
promptly paid by Seller or (ii) undertakes such remedial action itself,
provided that (w) all contractors and others hired by Seller to perform
such remedial action are approved in advance by Buyer, such approval not
to be unreasonably withheld; (x) all plans and specifications for such
remedial action are approved in advance by Buyer, such approval not to be
unreasonably withheld; (y) Seller consults with Buyer during the entire
remediation process and allows Buyer and Buyer's representatives to
inspect the remediation work at all times and (z) Seller at all times
continuously and diligently performs such remedial action (A) in a good
and workmanlike manner, (B) in a manner such that, in the reasonable
good-faith judgment of Buyer, when such action has been completed, all of
the requirements of the applicable Governmental Authorities for the
issuance of the applicable Non-Delivered Real Estate Permits will have
been complied with and (C) in a manner so as to cause minimum interference
with the Real Estate and the use, operation and occupancy thereof. Seller
agrees that before taking any of the actions permitted to be taken by
Seller pursuant to this Section 7.1 (m), it shall give Buyer 5 days
written notice that it intends to take such action, such notice to include
a description in reasonable detail of the specific actions Seller intends
to take. Without limiting any of the foregoing provisions of this Section
7.1(m), the parties agree that if, in accordance with the foregoing,
Seller undertakes (or gives Buyer notice that it intends to undertake) the
actions permitted to be taken by Seller pursuant to this Section 7.1(m),
(a) Seller shall immediately stop (or not commence) such actions upon
receipt of written notice from Buyer that any of the conditions to the
taking of such action are not being complied with, at which point Buyer
may take the remedial action described in this Section 7.1(m) and
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(b) Buyer may take the remedial action described in this Section 7.1(m) if
and as soon as such actions by Seller are completed but do not result in
the applicable Non-Delivered Real Estate Permits being obtained; and
(n) any matter identified on Section 7.1(n) of the Disclosure
Schedule, to the extent that such matter (i) materially interferes with
the use, occupancy or operation of the parcel of Real Property relating to
such matter as such parcel is currently used, occupied and operated, (ii)
materially reduces the fair market value of such parcel below the fair
market value such parcel would have had but for such matter or (iii)
results in any material increase in the cost of operating, occupying or
owning (or leasing) such parcel.
8. AMENDMENT OF SECTION 7.4. Section 7.4 of the Asset Purchase
Agreement is hereby amended by deleting Section 7.4 in its entirety and
substituting in lieu thereof the following:
7.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the parties in Articles III and IV
and in any instrument or document furnished in connection herewith and the
indemnification obligations of Seller under Section 7.1(n) shall survive
the Closing and any investigation at any time made by or on behalf of the
parties hereto and shall expire on the fourth anniversary of the Closing
Date, except (i) as to any matter as to which a claim is submitted in
writing to the Indemnifying Party prior to such fourth anniversary and
identified as a claim for indemnification pursuant to this Agreement, (ii)
the inaccuracy of any representation or warranty arising out of the fraud,
gross negligence or willful misconduct of Seller or Buyer, which
representation and warranty shall survive until sixty (60) days following
the expiration of the applicable statute of limitations, including
extensions thereof and (iii) any inaccuracy in the representations or
warranties set forth in Sections 3.8 and 4.5 of this Agreement, which
representations and warranties shall survive until the expiration of sixty
(60) days following the applicable statute of limitations, including
extensions thereof. The covenants of Seller and Buyer hereunder, including
the indemnification obligations of Seller under Section 7.1(b), (d), (e),
(f), (g), (h), (i), (j), (k), (l) and (m) and the
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indemnification obligations of Buyer under Section 7.2(b) and (d), shall
survive until the expiration of any applicable statute of limitations. No
claim or action for indemnity pursuant to Sections 7.1 or 7.2 hereof for
breach of any representation or warranty shall be asserted or maintained
by any party hereto after the expiration of such representation or
warranty pursuant to the first sentence of this Section 7.4 except for
claims made in writing prior to such expiration and actions (whether
instituted before or after such expiration) based on any claim made in
writing prior to such expiration.
9. SCHEDULES. Attached hereto is an amended and restated Disclosure
Schedule that supersedes in its entirety the draft form of Disclosure Schedule
previously delivered by Seller.
10. AMENDMENT OF SECTION 9.5. Section 9.5 of the Asset Purchase
Agreement is hereby amended by deleting Section 9.5 in its entirety and
substituting in lieu thereof the following:
9.5 SUCCESSORS AND ASSIGNS. Either party hereto may assign
this Agreement or any of its rights or benefits hereunder to any Person,
including, without limitation, an assignment by Buyer of some or all of
its rights hereunder to any of Buyer's lenders; provided, however, nothing
in this Agreement or in any other agreement delivered pursuant hereto
shall permit Buyer to assign any of its rights or benefits or delegate any
of its duties or obligations under the Trademark License Agreement
(subject to the rights granted in Section 2.01(iii) of the Trademark
License Agreement).
11. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed by their respective authorized officers as of the day
and year first above written.
UNION OIL COMPANY OF CALIFORNIA
By: /s/ X.X. Xxxxxxxxx
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Name: X.X. Xxxxxxxxx
Title: Vice President
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President and Treasurer
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
