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Exhibit 10.17
FIRST AMENDED AND RESTATED
INTERCREDITOR AND SUBORDINATION AGREEMENT
This First Amended and Restated Intercreditor and Subordination
Agreement ("Agreement") is executed by Portfield Investments, Inc., a Colorado
corporation ("Portfield"), Wescourt Group, Inc., a Delaware corporation
("Wescourt"), Wescourt Distributing, Inc., a Colorado corporation, Wesfrac,
Inc., a Colorado corporation ("Wesfrac"), Westec Denver, Inc., a Colorado
corporation ("Westec Denver"), Xxxxx-Xxxx Corp. Utah, a Colorado corporation,
Xxxxx-Xxxx Corp., a Colorado corporation, Xxxxx-Xxxx Corp., Montrose, Inc., a
Colorado corporation ("Petro-Xxxx Xxxxxxxx"), Westec Fruita, Inc., a Delaware
corporation ("Westec Fruita"), Montrose Propane, Inc., a Colorado corporation,
Grand Mesa Texaco, Inc., a Colorado corporation, Fruita RP Holding, Inc., a
Delaware corporation ("Fruita RP Holding"), Super Mart Convenience Stores, Inc.
fka Xxxxx-Xxxx Convenience Stores, Inc., a Colorado corporation ("SMCS") and
Xxxxxxx Oil Company, Inc., a Texas corporation, all with an address at 0000
Xxxxxxx 0 xxx 00, Xxxxxx, Xxxxxxxx 00000 (collectively "Borrowers" and
singularly "Borrower"), Xxxxxx Financial, Inc. ("Xxxxxx"), whose address is 000
Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, WLD Trust ("WLD"), an Ohio
testamentary trust, whose address is 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000 and National Canada Finance Corp. ("NCFC"),
whose address is 0000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, for
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, on this 11th day of April, 1997. Hereinafter, the parties to
this Agreement may be referred to collectively as the "Parties" and
individually as a "Party."
RECITALS
A. SMCS purchased from Petro-Xxxx Xxxxxxxx and Westec Fruita the
Petro-Xxxx Xxxxxxxx and Westec Fruita Stores (as defined below) in accordance
with the Petro-Xxxx Xxxxxxxx and Westec Fruita Purchase Agreements (as defined
below). In consideration therefor, SMCS provided Petro-Xxxx Xxxxxxxx and
Westec Fruita with the Petro-Xxxx Xxxxxxxx and Westec Fruita Notes (as defined
below).
B. SMCS purchased from Diamond Shamrock (as defined below) the
Diamond Shamrock Stores in accordance with the Diamond Shamrock Purchase
Agreement (as defined below).
C. Wesfrac desires to purchase from XxXxx Xxxxxxx all of
Xxxxxxx'x issued and outstanding capital stock in accordance with the Xxxxxxx
Purchase Agreement (as defined below).
X. Xxxxxx (as defined below) has provided and wishes to provide
Portfield with various loans and other financial accommodations pursuant to the
Xxxxxx Loan Documents (as defined below).
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E. WLD has guaranteed the Xxxxxx Loan (as defined below) and has
been indemnified for any payments upon such guaranty as set forth in the WLD
Documents (as defined below).
X. Xxxxxxxxx has provided SMCS with various loans and other
financial accommodations pursuant to the Portfield Loan Documents (as defined
below) and wishes to provide Wesfrac with the various loans and other financial
accommodations pursuant to the Second Portfield Loan Documents (as defined
below).
X. Xxxxxx has provided SMCS with various loans and other
financial accommodations pursuant to the Xxxxxx Loan Documents (as defined
below) and wishes to provide Wesfrac, Westec Denver and Xxxxxxx with various
loans and other financial accommodations pursuant to the Second Xxxxxx Loan
Documents.
H. NCFC has provided or wishes to provide Borrowers with various
loans and other financial accommodations or amend such loans and other
financial accommodations pursuant to the NCFC Loan Documents (as defined
below).
I. None of the Borrowers, WLD, Xxxxxx or NCFC are willing to
provide, engage in, or permit the foregoing transactions unless such parties
execute and agree to abide by the terms and conditions set forth in this
Agreement.
AGREEMENTS
1. Definitions. Besides the other terms defined herein, the
following terms shall have the meaning set forth below for the purposes of this
Agreement:
"Adjusted EBITDA" shall mean earnings, before interest, cash
taxes actually paid, depreciation and amortization minus all principal
and interest payments made with respect to any indebtedness
subordinate in right of payment to funded debt.
"Collateral" shall mean the NCFC Collateral, Xxxxxx
Collateral, Second Xxxxxx Collateral, WLD Collateral, Portfield
Collateral and Second Portfield Collateral.
"Convenience Stores" shall mean the Diamond Shamrock Stores
and the Petro-Xxxx Xxxxxxxx and Westec Fruita Stores described on
EXHIBIT A attached hereto and incorporated herein by this reference.
"Debt" shall mean the Petro-Xxxx Xxxxxxxx and Westec Fruita
Debt, Xxxxxx Debt, WLD Debt, Portfield Debt, Second Portfield Debt,
Xxxxxx Debt, Second Xxxxxx Debt and NCFC Debt.
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"Diamond Shamrock" shall mean Diamond Shamrock Refining and
Marketing Company.
"Diamond Shamrock Purchase Agreement" shall mean the Asset
Purchase and Branding Agreement between Diamond Shamrock and Wescourt
dated October 29, 1996 as amended by the First Amendment to Asset
Purchase and Branding Agreement dated December 17, 1996, Second
Amendment to Asset Purchase and Branding Agreement dated as of January
27, 1997 and the Third Amendment to Asset Purchase and Branding
Agreement dated as of March 5, 1997, the letter agreement between
Diamond Shamrock, Wescourt and SMCS dated February 20, 1997, and the
Assumption and Amendment Agreement between Diamond Shamrock, Wescourt
and SMCS dated March 4, 1997.
"Diamond Shamrock Stores" shall mean the convenience stores
and related assets sold by Diamond Shamrock to SMCS and located at the
addresses described in EXHIBIT A attached hereto.
"Documents" shall mean the NCFC Loan Documents, Xxxxxx Loan
Documents, Second Xxxxxx Loan Documents, Portfield Loan Documents,
Second Portfield Loan Documents, Xxxxx-Xxxx and Westec Fruita Loan
Documents, Xxxxxx Loan Documents and WLD Documents.
"Encumbrance" shall mean all present and future liens,
security interests, encumbrances or claims of any kind.
"Fixed Charges" shall mean (i) interest expense (excluding
interest paid on the Portfield Debt and Second Portfield Debt), (ii)
current maturities of long-term debt (excluding the Portfield Debt and
Second Portfield Debt), and (iii) cash taxes actually paid.
"Fractionator" shall mean the equipment described in EXHIBIT B
attached hereto and incorporated herein by this reference, all
modifications, replacements and substitutions thereto, and all cash
proceeds of the foregoing and any other proceeds of the foregoing that
do not constitute a portion of NCFC's Collateral.
"Xxxxxx" shall mean Xxxxxx Financial, Inc.
"Xxxxxx Collateral" shall mean the Wesfrac Stock, the
Fractionator, and all of SMCS' personal and real property described on
EXHIBIT C attached hereto and incorporated herein by this reference.
"Xxxxxx Debt" shall mean all obligations, liabilities and
indebtedness from time to time owing by SMCS to Xxxxxx in connection
with the Xxxxxx Loan.
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"Xxxxxx Loan" shall mean the term loan in the original
principal amount of up to $8,000,000.00 from Xxxxxx to SMCS.
"Xxxxxx Loan Documents" shall mean any and all agreements,
instruments and documents, together with any amendments,
modifications, restatements and replacements thereof, now or hereafter
evidencing or securing the Xxxxxx Loan or any part thereof, including,
without limitation, the Term Loan and Security Agreement, Guaranty
from Portfield, Wescourt and Wesfrac, Security Agreements from
Wescourt and Wesfrac, financing statements from SMCS, Wescourt and
Wesfrac, and Deeds of Trust and Leasehold Deeds of Trust from SMCS
dated on or about March 12, 1997.
"Xxxxxx" shall mean Xxxxxx Guaranty Trust Company of New York.
"Xxxxxx Debt" shall mean all obligations, liabilities and
indebtedness from time to time owing by Portfield to Xxxxxx in
connection with the Xxxxxx Loan.
"Xxxxxx Loan" shall mean the demand loan in the original
principal amount of up to $4,500,000.00 from Xxxxxx to Portfield.
"Xxxxxx Loan Documents" shall mean any and all agreements,
instruments and documents, together with any amendments,
modifications, restatements and replacements thereof, now or hereafter
evidencing or securing the Xxxxxx Loan or any part thereof, including,
without limitation, the Xxxxxx Demand Note, the Guaranty from WLD,
Portfield Indemnification Agreement, Wescourt Indemnification
Agreement, Xxxxxx Estoppel Letter dated on or about March 12, 1997.
"NCFC Collateral" shall mean all of Borrowers' present and
future personal and real property securing the NCFC Debt. The term
"NCFC Collateral" shall not include (a) the Portfield Note and related
security agreements, deeds of trust and other documents providing
Portfield with an Encumbrance on the portion of the Xxxxxx Collateral
described in SECTION 4(B) of this Agreement, (b) the Petro-Xxxx
Xxxxxxxx and Westec Fruita Notes, (c) the Wesfrac Stock, (d) the
Xxxxxx Collateral or the Second Xxxxxx Collateral (to the extent that
the Xxxxxx Collateral or the Second Xxxxxx Collateral does not consist
of any of the specific Collateral or types of Collateral described in
NCFC's Loan Documents), (e) the Second Portfield Note and related
security agreement and other documents providing Portfield with and
Encumbrance on Xxxxxxx'x assets constituting a portion of the Second
Xxxxxx Collateral.
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"NCFC Debt" shall mean all obligations, liabilities and
indebtedness from time to time owing by Borrowers to NCFC or any other
affiliate of NCFC.
"NCFC Loan Documents" shall mean any and all agreements,
instruments and documents, together with any amendments,
modifications, restatements and replacements thereof, now or hereafter
evidencing, guaranteeing or securing the NCFC Debt or any part
thereof.
"Overlap Xxxxxx Collateral" shall mean that portion of the
Xxxxxx Collateral that also constitutes a portion of the Second Xxxxxx
Collateral, including, but not limited to, the Fractionator and the
Wesfrac Stock.
"Petro-Xxxx Xxxxxxxx and Westec Fruita Debt" shall mean all
obligations, liabilities and indebtedness from time to time owing by
SMCS to Petro-Xxxx Xxxxxxxx and Westec Fruita in connection with the
Petro-Xxxx Xxxxxxxx and Westec Fruita Loan.
"Petro-Xxxx Xxxxxxxx and Westec Fruita Loan" shall mean the
loans in the original principal amounts of up to $716,438.78 and
$485,925.82 to SMCS from Petro-Xxxx Xxxxxxxx and Westec Fruita,
respectively.
"Petro-Xxxx Xxxxxxxx and Westec Fruita Loan Documents" shall
mean any and all agreements, instruments and documents, together with
any amendments, modifications, restatements and replacements thereof,
now or hereafter evidencing the Petro-Xxxx Xxxxxxxx and Westec Fruita
Loan or any part thereof, including, without limitation, the
Petro-Xxxx Xxxxxxxx and Westec Fruita Purchase Agreements, the
Petro-Xxxx Xxxxxxxx and Westec Fruita Notes dated on or about February
25, 1997.
"Petro-Xxxx Xxxxxxxx and Westec Fruita Notes" shall mean the
subordinated unsecured promissory notes issued by SMCS in favor of
Petro-Xxxx Xxxxxxxx and Westec Fruita in the original principal
amounts of $716,438.78 and $485,925.82, respectively, for the purchase
of the Petro-Xxxx Xxxxxxxx and Westec Fruita Stores.
"Petro-Xxxx Xxxxxxxx and Westec Fruita Purchase Agreements"
shall mean the Asset Sale and Purchase Agreements between SMCS and
Petro-Xxxx Xxxxxxxx and Westec Fruita, respectively, dated January 31,
1997.
"Petro-Xxxx Xxxxxxxx and Westec Fruita Stores" shall mean the
convenience stores and related assets sold by Petro-Xxxx Xxxxxxxx and
Westec Fruita to SMCS and located at the addresses described in
EXHIBIT A attached hereto.
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"Portfield Debt" shall mean all obligations, liabilities and
indebtedness from time to time owing by SMCS to Portfield in
connection with the Portfield Loan.
"Portfield Loan" shall mean the term loan in the original
principal amount of up to $2,500,000.00 from Portfield to SMCS.
"Portfield Loan Documents" shall mean any and all agreements,
instruments and documents, together with any amendments,
modifications, restatements and replacements thereof, now or hereafter
evidencing or securing the Portfield Loan or any part thereof,
including, without limitation, the Portfield Note, security agreement
and financing statements from SMCS, guaranty from Wescourt, Deeds of
Trust and Leasehold Deeds of Trust from SMCS, and the related
documents dated on or about March 12, 1997.
"Portfield Note" shall mean the promissory note issued by SMCS
in favor of Portfield in the original principal amount of
$2,500,000.00 and dated on or about March 12, 1997.
"Proceeding" shall mean any voluntary or involuntary
insolvency, bankruptcy, receivership, custodianship, liquidation,
dissolution, reorganization, assignment for the benefit of creditors,
appointment of a custodian, receiver, trustee or other officer with
similar powers or any other proceeding for the liquidation,
dissolution or other winding up of a person.
"Second Xxxxxx Collateral" shall mean the real and personal
property of Borrowers described on EXHIBIT D attached hereto and
incorporated herein by this reference.
"Second Xxxxxx Debt" shall mean all obligations, liabilities
and indebtedness from time to time owing by Borrowers (besides SMCS)
to Xxxxxx in connection with the Second Xxxxxx Loan.
"Second Xxxxxx Loan" shall mean the term loans in the original
aggregate principal amount of up to $7,000,000.00 from Xxxxxx to
Wesfrac, Westec Denver, and Xxxxxxx.
"Second Xxxxxx Loan Documents" shall mean any and all
agreements, instruments and documents, together with any amendments,
modifications, restatements and replacements thereof, now or hereafter
evidencing or securing the Second Xxxxxx Loan or any part thereof,
including, without limitation, the Term Loan and Guaranty Agreement,
Security Agreement Re: Equipment, Assignment of Stock Purchase
Agreements from Wesfrac, Pledge Agreement from Wesfrac and Wescourt,
Deed of Trust from Fruita RP Holding, financing
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statements from Borrowers (besides SMCS), dated on or about the date
hereof.
"Second Portfield Debt" shall mean all obligations,
liabilities and indebtedness from time to time owing by Wesfrac to
Portfield in connection with the Second Portfield Loan.
"Second Portfield Loan" shall mean the term loan in the
original principal amount of up to $2,000,000.00 from Portfield to
Wesfrac.
"Second Portfield Loan Documents" shall mean any and all
agreements, instruments and documents, together with any amendments,
modifications, restatements and replacements thereof, now or hereafter
evidencing or securing the Second Portfield Loan or any part thereof,
including, without limitation, the Second Portfield Note, security
agreement and financing statements from Xxxxxxx, and the related
documents dated on or about the date hereof.
"Second Portfield Note" shall mean the promissory note issued
by Wesfrac in favor of Portfield in the original principal amount of
$2,000,000.00 and dated on or about the date hereof.
"Secured Parties" shall mean Portfield, WLD, Xxxxxx and NCFC.
"Secured Party" shall mean any one of the Secured Parties.
"Wesfrac Stock" shall mean all of Wesfrac's issued and
outstanding stock at any time.
"WLD Collateral" shall mean (a) the Portfield Note and related
security agreements, deeds of trust and other documents providing
Portfield with an Encumbrance on the portion of the Xxxxxx Collateral
described in SECTION 4(B) of this Agreement, (b) the Second Portfield
Note and related security agreements providing Portfield with and
Encumbrance on Xxxxxxx'x assets constituting a portion of the Second
Xxxxxx Collateral, and (c) Borrower's (besides SMCS' and Xxxxxxx'x)
present and future equipment, fixtures, cash proceeds thereof and any
other proceeds thereof that do not constitute a portion of the NCFC
Collateral.
"WLD Debt" shall mean all indemnification obligations,
liabilities and indebtedness from time to time owing by Portfield and
Wescourt to WLD with respect to the Xxxxxx Loan.
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"WLD Documents" shall mean any and all agreements, instruments
and documents, together with any amendments, modifications,
restatements and replacements thereof, now or hereafter evidencing,
guarantying or securing the WLD Debt or any part thereof, including,
without limitation, the Portfield and Wescourt Indemnification
Agreements, and First Amended and Restated Assignment and Security
Agreement from Borrowers to WLD dated on or about the date hereof.
2. Priority and Subordination of Payments to Parties.
(a) Payments to NCFC and Xxxxxx. Notwithstanding
anything to the contrary herein, the NCFC Debt, the Xxxxxx Debt and
the Second Xxxxxx Debt shall be pari passu in all rights of payment
whether in a liquidation of assets, plan of reorganization or
otherwise, except to the extent that such payments constitute the
proceeds of the NCFC Collateral, Xxxxxx Collateral or Second Xxxxxx
Collateral, whereupon the payments of such proceeds shall be governed
by the priority of NCFC's and Xxxxxx'x Encumbrances in the Collateral.
(b) Subordination of Portfield Debt. No payment shall be
made upon the Portfield Debt or the related guaranty by Wescourt and
Portfield shall not setoff any Borrower's obligations to Portfield
pertaining to the Portfield Debt except for payments under the
conditions described in the following sentence. So long as no event
of default has occurred and is continuing under the NCFC Loan
Documents, Xxxxxx Loan Documents or Second Xxxxxx Loan Documents or
would occur as a result thereof and, in addition for subsections (iii)
and (iv) below, so long as the additional $1,500,000 in revolving
loans from NCFC to Wesfrac allowed under SUBSECTION (III) in the
definition of Loan Availability in the NCFC Loan Agreement and all
interest, fees and expenses applicable thereto have been fully and
irrevocably paid to NCFC, the following payments may be made upon the
Portfield Debt:
(i) Regularly scheduled payments of interest as
set forth in the Portfield Note on the date hereof;
(ii) One (1) $500,000.00 payment of principal
provided that such payment is made within sixty (60) days
following Wesfrac's purchase of Xxxxxxx'x stock or such longer
period as may be acceptable to WLD;
(iii) Commencing with the quarter ending February 28,
1998, payments of principal to the extent that the ratio of
Portfield's consolidated Adjusted EBITDA to Fixed Charges
(determined on a quarterly basis) would not be less than 1.25
to 1.00 for the trailing twelve (12) month period; and
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(iv) The Portfield Debt may be paid in full or in
part from the proceeds of any initial public offering of any
Borrower's stock that results in such Borrower receiving at
least $10,000,000.00 of net proceeds therefrom.
During the continuance of the Xxxxxx Debt, any payments on the
Portfield Debt shall be remitted to Xxxxxx. During the continuance of
the WLD Debt (but not the Xxxxxx Debt), any payments on the Portfield
Debt shall be remitted to WLD.
(c) Subordination of Second Portfield Debt. No payment
shall be made upon the Second Portfield Debt or the related guaranty
by Wescourt and Portfield shall not setoff any Borrower's obligations
to Portfield pertaining to the Second Portfield Debt except for
payments under the conditions described in the following sentence. So
long as no event of default has occurred and is continuing under the
NCFC Loan Documents, Xxxxxx Loan Documents or Second Xxxxxx Loan
Documents or would occur as a result thereof and, in addition for
subsections (ii) and (iii) below, so long as the additional $1,500,000
in revolving loans from NCFC to Wesfrac allowed under SUBSECTION (III)
in the definition of Loan Availability in the NCFC Loan Agreement and
all interest, fees and expenses applicable thereto have been fully and
irrevocably paid to NCFC, the following payments may be made upon the
Second Portfield Debt:
(i) Regularly scheduled payments of interest as
set forth in the Second Portfield Note on the date hereof;
(ii) Commencing with the quarter ending February 28,
1998, payments of principal to the extent that the ratio of
Portfield's consolidated Adjusted EBITDA to Fixed Charges
(determined on a quarterly basis) would not be less than 1.25
to 1.00 for the trailing twelve (12) month period; and
(iii) The Second Portfield Debt may be paid in full
or in part from the proceeds of any initial public offering of
any Borrower's stock that results in such Borrower receiving
at least $10,000,000.00 of net proceeds therefrom.
During the continuance of the Xxxxxx Debt, any payments on the Second
Portfield Debt shall be remitted to Xxxxxx. During the continuance of
the WLD Debt (but not the Xxxxxx Debt), any payments on the Second
Portfield Debt shall be remitted to WLD.
(d) Subordination of WLD Debt. Except as specifically
described in subsection (f) below, no payment shall be made
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upon the WLD Debt and WLD shall not setoff any Borrower's obligations
to WLD pertaining to the WLD Debt until the NCFC Debt, Xxxxxx Debt and
Second Xxxxxx Debt have been completely and irrevocably satisfied and
NCFC and Xxxxxx have been released from any obligation to provide any
Borrower with any additional loans, advances or other financial
accommodations of any kind.
(e) Subordination of Petro-Xxxx Xxxxxxxx and Westec
Fruita Notes. No payment shall be made upon the Petro-Xxxx Xxxxxxxx
and Westec Fruita Notes and the holder of the Petro-Xxxx Xxxxxxxx and
Westec Fruita Notes shall not setoff any Borrower's obligations to
such holder pertaining to the Petro-Xxxx Xxxxxxxx and Westec Fruita
Notes until the NCFC Debt, Xxxxxx Debt and Second Xxxxxx Debt have
been completely and irrevocably satisfied and NCFC and Xxxxxx have
been released from any obligation to provide any Borrower with any
additional loans, advances or other financial accommodations of any
kind.
(f) Corresponding Payments on WLD Debt, Portfield Debt
and Second Portfield Debt. Any payment on the Xxxxxx Debt (besides
payments originating from WLD) also shall constitute a payment in the
same amount on the WLD Debt. In addition, any such payment on the
Xxxxxx Debt or the WLD Debt also shall constitute: (i) a payment in
the same amount on the Portfield Debt if the payment originates from
SMCS; (ii) a payment in the same amount on the Second Portfield Debt
if the payment originates from Wesfrac or Xxxxxxx; or (iii) a pro-rata
reduction of the Portfield Debt and the Second Portfield Debt, with
the reduction allocated between them according to their respective
outstanding principal balances immediately before the payment, if the
payment originates from Portfield or any of its direct or indirect
subsidiaries other than SMCS, Wesfrac or Xxxxxxx.
3. Priority and Absence of Encumbrances Against the NCFC
Collateral. The following shall be the relative priority of the Encumbrances
and the absence of Encumbrances of each Secured Party in the NCFC Collateral,
regardless of the date, manner, time or order of attachment, perfection or
recording of the Encumbrances granted to any Secured Party, any provision of
law or judicial decision, any term or condition contained in any Secured
Party's Documents, or whether any Secured Party holds possession of all or any
part of the NCFC Collateral:
(a) NCFC shall have a first priority Encumbrance in the
NCFC Collateral to secure the NCFC Debt; and
(b) Except as specifically described in this Agreement,
no other Party shall have an Encumbrance in the NCFC Collateral and
Borrowers shall not grant an Encumbrance in the
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NCFC Collateral to any other person or entity that violates any of the
Documents.
4. Priority and Absence of Encumbrances Against the Xxxxxx
Collateral. The following shall be the relative priority of the Encumbrances of
each Secured Party in the Xxxxxx Collateral, regardless of the date, manner,
time or order of attachment, perfection or recording of the Encumbrances
granted to any Secured Party, any provision of law or judicial decision, any
term or condition contained in any Secured Party's Documents, or whether any
Secured Party holds possession of all or any part of the Xxxxxx Collateral:
(a) Xxxxxx shall have a first priority Encumbrance in
the Xxxxxx Collateral (other than the Overlap Xxxxxx Collateral) to
secure the Xxxxxx Loan;
(b) Xxxxxx shall have a second priority Encumbrance in
the Overlap Xxxxxx Collateral to secure the Xxxxxx Loan;
(c) Portfield shall have a second priority Encumbrance in
the Xxxxxx Collateral (other than the Overlap Xxxxxx Collateral) to
secure the Portfield Loan (and Portfield shall assign such Encumbrance
to WLD subject to the terms of the WLD Documents and this Agreement);
(d) WLD shall have a third priority Encumbrance against
the Fractionator and also shall have the various assigned rights
described in the preceding subsection to secure the WLD Debt; and
(e) Except as specifically described in this Agreement,
no other Party shall have an Encumbrance in the Xxxxxx Collateral and
Borrowers shall not grant an Encumbrance in the Xxxxxx Collateral to
any other person or entity that violates any of the Documents.
5. Priority and Absence of Encumbrances Against the Second Xxxxxx
Collateral. The following shall be the relative priority of the Encumbrances of
each Secured Party in the Second Xxxxxx Collateral, regardless of the date,
manner, time or order of attachment, perfection or recording of the
Encumbrances granted to any Secured Party, any provision of law or judicial
decision, any term or condition contained in any Secured Party's Documents, or
whether any Secured Party holds possession of all or any part of the Second
Xxxxxx Collateral:
(a) Xxxxxx shall have a first priority Encumbrance in the
Second Xxxxxx Collateral (including the Overlap Xxxxxx Collateral) to
secure the Second Xxxxxx Loan;
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(b) To the extent the following assets constitute a
portion of the Second Xxxxxx Collateral, Portfield shall have a second
priority Encumbrance in Xxxxxxx'x present and future equipment,
fixtures, the cash proceeds thereof and the other proceeds thereof
that do not constitute a portion of the NCFC Collateral to secure the
Second Portfield Loan (and Portfield shall assign such Encumbrance to
WLD subject to the terms of the WLD Documents and this Agreement);
(c) To the extent the following assets constitute a
portion of the Second Xxxxxx Collateral, WLD shall have a second
priority Encumbrance against Borrower's (other than SMCS' and
Xxxxxxx'x) present and future equipment, fixtures, the cash proceeds
thereof and the other proceeds thereof that do not constitute a
portion of the NCFC Collateral and shall have the assigned rights
described in the preceding subsection to secure the WLD Debt; and
(d) Except as specifically described in this Agreement,
no other Party shall have an Encumbrance in the Second Xxxxxx
Collateral and Borrowers shall not grant an Encumbrance in the Second
Xxxxxx Collateral to any other person or entity that violates any of
the Documents.
6. Priority and Absence of Encumbrances Against WLD Collateral.
The following shall be the relative priority of the Encumbrances and the
absence of Encumbrances of each Secured Party in the WLD Collateral (other than
the Xxxxxx Collateral and Second Xxxxxx Collateral), regardless of the date,
manner, time or order of attachment, perfection or recording of the
Encumbrances granted to any Secured Party, any provision of law or judicial
decision, any term or condition contained in any Secured Party's Documents, or
whether any Secured Party holds possession of all or any part of the WLD
Collateral (other than the Xxxxxx Collateral and the Second Xxxxxx Collateral):
(a) WLD shall have a first priority Encumbrance in the
WLD Collateral (other than the Xxxxxx Collateral and Second Xxxxxx
Collateral); and
(b) Except as specifically described in this Agreement,
no other Party shall have an Encumbrance in the WLD Collateral (other
than the Xxxxxx Collateral and Second Xxxxxx Collateral) and Borrowers
shall not grant an Encumbrance in the WLD Collateral (other than the
Xxxxxx Collateral and Second Xxxxxx Collateral) to any other person or
entity that violates any of the Documents.
7. Absence of Encumbrances Against Petro-Xxxx Xxxxxxxx and Westec
Fruita Notes. No Party shall have an Encumbrance in the Petro-Xxxx Xxxxxxxx
and Westec Fruita Notes and Borrowers shall not
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grant an Encumbrance in the Petro-Xxxx Xxxxxxxx and Westec Fruita Notes to any
other person or entity.
8. Acceleration of Debt and Enforcement of Post-Default Rights
Against Collateral.
(a) NCFC Collateral. Subject to the specific terms and
conditions set forth in this Agreement and following an event of
default described in NCFC's Loan Documents that is not cured in a
timely manner, NCFC may, at its option, take any action to accelerate
the payment of the NCFC Debt, collect the NCFC Debt, and enforce any
of its post-default rights with respect to the NCFC Collateral without
the consent of any other Party; provided, however, that NCFC shall
provide Xxxxxx with simultaneous written notice of any election to
exercise such post-default actions.
(b) The Xxxxxx Collateral and Second Xxxxxx Collateral.
Subject to the specific terms and conditions set forth in this
Agreement and following an event of default described in Xxxxxx'x Loan
Documents or the Second Xxxxxx Loan Documents that is not cured in a
timely manner, Xxxxxx may, at its option, take any action to
accelerate the payment of the Xxxxxx Debt or the Second Xxxxxx Debt,
collect the Xxxxxx Debt or the Second Xxxxxx Debt, and enforce any of
its post-default rights with respect to the Xxxxxx Collateral or the
Second Xxxxxx Collateral without the consent of any other Party;
provided, however, that Xxxxxx shall provide NCFC with simultaneous
written notice of any election to exercise such post-default actions.
9. Acknowledgment, No Contest and Cooperation. Each Secured
Party hereby acknowledges and consents to the Encumbrances granted to any other
Secured Party that are described in this Agreement. None of the Secured
Parties shall contest the validity, perfection, priority or enforceability of
any Encumbrance granted to any other Secured Party as set forth herein nor
interfere with the exercise of another Secured Party's rights and remedies
against such other Secured Party's senior Collateral. Each Secured Party
hereby agrees to cooperate in the defense of any action contesting the
validity, perfection, priority or enforceability of such Encumbrances
consistent with the other provisions of this Agreement.
No Secured Party shall take any action to foreclose, realize upon or
to enforce any of its rights with respect to any Collateral that is subject to
a senior Encumbrance belonging to another Secured Party; provided, however,
that nothing contained herein shall prevent any junior Secured Party from
accelerating its Debt and receiving and applying any proceeds from the
liquidation of such Collateral upon the complete and irrevocable satisfaction
of the senior Encumbrances upon such Collateral. To the extent that
13
14
any Secured Party obtains possession of any Collateral that is subject to a
senior Encumbrance belonging to another Secured Party, the Secured Party having
possession shall notify the other Secured Party of such fact and, at the
expense and upon the request of the Secured Party that has the senior
Encumbrance in such Collateral, shall deliver such Collateral to such senior
Secured Party. In addition, following the occurrence of any event of default
under the NCFC Loan Documents that is not cured in a timely manner, NCFC shall
be entitled to enter upon any Borrowers' premises and repossess, remove and/or
dispose of such Collateral so long as NCFC provides the person or entity in
possession of such premises with at least five (5) days prior written notice
thereof.
10. No Amendments or Modifications of the Portfield Loan
Documents, Second Portfield Loan Documents, WLD Documents, or Xxxxxx Documents.
Without limiting any of the terms and conditions set forth in the NCFC Loan
Documents, Xxxxxx Loan Documents, or Second Xxxxxx Loan Documents, Borrowers
and WLD shall not take any of the following actions without obtaining the prior
written consent of NCFC and Xxxxxx which may be withheld by NCFC's and Xxxxxx
in their sole discretion: (a) any Borrower obtaining any additional loans or
other financial accommodations from WLD or Xxxxxx; (b) any Borrower providing
any additional guaranties or collateral to WLD or Xxxxxx or for the benefit of
WLD or Xxxxxx (except as specifically described in this Agreement); (c) any
Borrower prepaying the Portfield Debt, Second Portfield Debt, WLD Debt or
Xxxxxx Debt (except as specifically described in this Agreement); or (d) any
Borrower or WLD amending, modifying, replacing, substituting or supplementing
the Portfield Loan Documents, Second Portfield Loan Documents, WLD Documents or
Xxxxxx Documents in any way which (i) increases the amount of any loans or
other obligations described therein, (ii) accelerates or increases any payments
due thereunder, (iii) increases any interest rate described therein, (iv)
shortens the maturity date thereof, or (v) increases, replaces or substitutes
any guaranties or collateral therefor except as specifically described in this
Agreement.
11. Proceedings. In the event of any Proceeding involving any
Borrower: (a) all NCFC Debt, Xxxxxx Debt and Second Xxxxxx Debt first shall be
paid in full in cash before any payment of or with respect to the WLD Debt
shall be made; (b) any payment or distribution, whether in cash, property or
securities which, but for the terms hereof, otherwise would be payable or
deliverable in respect of the WLD Debt, shall be paid or delivered directly to
NCFC and Xxxxxx on a pari passu basis until all NCFC Debt, Xxxxxx Debt and
Second Xxxxxx Debt is paid in full in cash, and WLD irrevocably authorizes,
empowers and directs all receivers, trustees, liquidators, custodians,
conservators and others having authority in the premises to effect all such
payments and distributions, and WLD also irrevocably authorizes, empowers and
directs the holders of the NCFC Debt, Xxxxxx Debt and Second Xxxxxx Debt to
demand, xxx for, collect and receive every such payment or
14
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distribution; (c) WLD agrees to execute and deliver to the holders of the NCFC
Debt, Xxxxxx Debt and Second Xxxxxx Debt or their representatives all such
further instruments confirming the authorization referred to in the foregoing
clause (b), (d) WLD agrees not to initiate or prosecute or encourage any other
person to initiate or prosecute any claim, action or other proceeding
challenging the enforceability of the NCFC Debt, Xxxxxx Debt or Second Xxxxxx
Debt or any Encumbrance securing the NCFC Debt, Xxxxxx Debt or Second Xxxxxx
Debt, and (e) WLD agrees to execute, verify, deliver and file any proofs of
claim in respect of the WLD Debt requested by Xxxxxx and NCFC in connection
with any such Proceeding and hereby irrevocably authorizes, empowers and
appoints Xxxxxx, NCFC and their agents and attorneys-in-fact to (i) execute,
verify, deliver and file such proofs of claim upon the failure of WLD promptly
to do so (and, in any event, prior to thirty (30) days before the expiration of
the time to file any such proof), and (ii) vote or refrain from voting such
claim in any such Proceeding; provided Xxxxxx and NCFC shall have no obligation
to execute, verify, deliver, file and/or vote any such proof of claim and, if
Xxxxxx and NCFC cannot agree on the vote to be cast based upon such claim, no
vote shall be cast thereon. In the event that Xxxxxx or NCFC votes or refrains
from voting any claim in accordance with the authority granted hereby, WLD
shall not be entitled to vote, change or withdraw such vote. The NCFC Debt,
Xxxxxx Debt and Second Xxxxxx Debt shall continue to be treated pari passu as
set forth in this section and the provisions of this section shall continue to
govern the relative rights and priorities of the NCFC Debt, Xxxxxx Debt, Second
Xxxxxx Debt and WLD Debt even if all or part of the NCFC Debt, Xxxxxx Debt or
Second Xxxxxx Debt or the Encumbrances securing the NCFC Debt, Xxxxxx Debt or
Second Xxxxxx Debt are subordinated, set aside, avoided or disallowed in
connection with any such Proceeding and this section shall be reinstated if at
any time any payment of any of the NCFC Debt, Xxxxxx Debt or Second Xxxxxx Debt
is rescinded or must otherwise be returned by any holders of NCFC Debt, Xxxxxx
Debt or Second Xxxxxx Debt or any representative of such holder.
12. Continued Effectiveness of this Agreement. The terms of this
Agreement, the subordination effected hereby, and the rights and the
obligations of the Secured Parties arising hereunder, shall not be affected,
modified or impaired in any manner or to any extent by: (a) any amendment or
modification of or supplement to any of the Documents; (b) the validity or
enforceability of any of the Documents; or (c) any exercise or non-exercise of
any right, power or remedy under or in respect of any Debt or any of the
Documents. The Secured Parties hereby acknowledge that the provisions of this
Agreement are intended to be enforceable at all times, whether before the
commencement of, after the commencement of, in connection with or premised on
the occurrence of a Proceeding.
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16
13. Representations and Warranties. Each Secured Party hereby
represents and warrants to the other Secured Parties as follows:
(a Authority. Each Secured Party has all requisite
power and authority to enter into this Agreement.
(b Binding Agreements. This Agreement, when executed
and delivered, will constitute the valid and legally binding
obligation of each Secured Party enforceable in accordance with its
terms.
14. Cumulative; No Waivers. Subject to the express terms and
conditions set forth herein, each and every right, remedy and power granted to
any Secured Party hereunder shall be cumulative and in addition to any other
right, remedy or power specifically granted or existing herein, in the other
Documents, in equity, at law, by virtue of statute or otherwise, and may be
exercised by such Secured Party, from time to time, concurrently or
independently and as often and in such order as such Secured Party may deem
expedient in accordance with this Agreement. Any failure or delay on the part
of any Secured Party thereafter to exercise any right, remedy or power
specifically granted herein and any single or partial exercise of any such
right, remedy or power shall not preclude any other or further exercise thereof
or the exercise of any other right, remedy or power, and no such failure,
delay, abandonment or single or partial exercise of the rights of any Secured
Party hereunder shall be deemed to establish a custom or course of dealing or
performance among the parties hereto.
15. Modification. Any modification or waiver of any provision of
this Agreement, or any consent to any departure therefrom, shall not be
effective in any event unless the same is in writing and signed by each party
hereto that is affected by such modification or waiver and then such
modification, waiver or consent shall be effective only in the specific
instance and for the specific purpose given. Any notice to or demand on any
party in any event not specifically required of a party hereunder shall not
entitle any party to any other or further notice or demand in the same, similar
or other circumstances unless specifically required hereunder.
16. Notices. Unless otherwise specifically provided herein, any
notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be
personally served, telecopied or sent by overnight courier service or United
States mail, certified or registered, and shall be deemed to have been given
(a) if delivered in person, when delivered; (b) if delivered by telecopy, on
the date of transmission if transmitted on a business day before 4:00 p.m.
(Chicago time) or, if not, on the next succeeding business day; (c) if
delivered by overnight courier, two (2) business days after
16
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delivery to such courier properly addressed; or (d) if by United States mail,
four (4) business days after deposit in the United States mail, postage prepaid
and properly addressed. Notices shall be addressed as follows:
If to NCFC:
National Bank of Canada
0000 00xx Xxxxxx
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Vice President
Telecopy: (000) 000-0000
With a copy to:
Block Xxxxxx Xxxxxxxx, L.L.C.
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
If to Xxxxxx:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Portfolio Manager
Commercial Equipment Finance Division
Telecopy: (000) 000-0000
With a copy to:
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Commercial Equipment Finance Division
Telecopy: (000) 000-0000
If to WLD:
WLD Trust
x/x XXX Xxxxxxxxxxx, Xxx.
Xxxxx 000, Xxx Xxxx Xxxxxx
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx and Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
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If to any Borrower:
c/o Portfield Investments, Inc.
0000 Xxxxxxxx 0 xxx 00
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
or in any case, to such other address as the party addressed shall have
previously designated by written notice to the serving party, given in
accordance with this Section. A notice not given as provided above shall, if
it is in writing, be deemed given if and when actually received by the party to
whom given.
17. Severability. In the event that any provision of this
Agreement is deemed to be invalid, illegal or unenforceable by reason of the
operation of any law or by reason of the interpretation placed thereon by any
court or governmental authority, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby, and the affected provision shall be modified to the minimum
extent permitted by law so as most fully to achieve the intention of this
Agreement.
18. Successors and Assigns. This Agreement shall inure to the
benefit of the successors and assigns of each party hereto and shall be binding
upon the successors and assigns of any Secured Party.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall be one and the same instrument.
20. Defined Rights of the Parties. The provisions of this
Agreement are solely for the purpose of defining the relative rights of the
Parties and shall not be deemed to create any rights or priorities in favor of
any other person or entity. This Agreement shall govern any conflicts that may
arise between any Documents and this Agreement.
21. Headings. The paragraph headings used in this Agreement are
for convenience only and shall not affect the interpretation of any of the
provisions hereof.
22. Applicable Law. This Agreement shall be governed by, and be
construed and interpreted in accordance with, the internal laws (as opposed to
conflict of laws provisions) of the State of Colorado.
23. Termination. This Agreement shall terminate with respect to a
Secured Party when such Secured Party's Debt has been
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completely and irrevocably satisfied and such Secured Party has been released
from any obligation to provide any Borrower with any additional loans, advances
or financial accommodations of any kind and such party has terminated its
Documents. Such termination shall not relieve a Secured Party from any
violation of its obligations to another Secured Party under this Agreement.
24. Jurisdiction and Venue. The Parties consent to the
jurisdiction and venue of any federal or state court located in the City and
County of Denver, State of Colorado, with respect to any litigation pertaining
to the negotiation, execution, interpretation, or enforcement of any right or
obligation under this Agreement.
25. Integration. This Agreement constitutes the complete and
integrated understanding between the Parties with respect to the subject matter
hereof. All prior or contemporaneous understandings and agreements, written or
oral, express or implied, are of no further force and effect to the extent
inconsistent herewith.
26. Waiver of Marshalling. Subject to the specific terms and
conditions set forth in this Agreement, each Secured Party hereby waives any
and all rights to have the other Secured Parties' collateral in which such
other Secured Parties have a prior lien and security interest, or any part
thereof, marshalled upon the foreclosure of any of such Secured Party's
collateral.
27. Amendment and Restatement. This Agreement amends and
restates, but does not constitute a novation or extinguishment of, that certain
Intercreditor and Subordination Agreement by and among the Borrowers (besides
Xxxxxxx), Xxxxxx, WLD and NCFC dated March 12, 1997 in its entirety.
28. Future Grant of Security Interest to Xxxxxx and WLD. Upon the
complete and irrevocable payment of the NCFC Debt, the termination of any
obligations of NCFC to provide any loans or other financial accommodations to
any Borrower, and the termination of NCFC's Documents, Borrowers shall: (a)
xxxxx Xxxxxx a first priority Encumbrance against all proceeds of the Second
Xxxxxx Collateral (instead of only the cash proceeds thereof and the other
proceeds thereof that do not constitute a portion of the NCFC Collateral) to
secure the Second Xxxxxx Loan, (ii) grant WLD a second priority Encumbrance
against all proceeds of the Second Xxxxxx Collateral (instead of only the cash
proceeds thereof and the other proceeds thereof that do not constitute a
portion of the NCFC Collateral) to secure the WLD Debt.
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[THIS PAGE INTENTIONALLY LEFT BLANK]
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28. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM RELATING TO THE SUBJECT MATTER OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS SUCH WRITING
MAKES SPECIFIC REFERENCE TO THIS SECTION).
PORTFIELD INVESTMENTS, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
WESCOURT GROUP, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
WESCOURT DISTRIBUTING, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
WESFRAC, INC.
By: /s/ XXXX X. XXXX
---------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer and Secretary
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WESTEC DENVER, INC.
By: /s/ XXXX X. XXXX
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer and Secretary
XXXXX-XXXX CORP. UTAH
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
XXXXX-XXXX CORP.
By: /s/ XXXX X. XXXX
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer and Secretary
XXXXX-XXXX CORP., MONTROSE, INC.
By: /s/ XXXX X. XXXX
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer and Secretary
WESTEC FRUITA, INC.
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
MONTROSE PROPANE, INC.
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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23
GRAND MESA TEXACO, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President
FRUITA RP HOLDING, INC.
By: /s/ XXXXX X. XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SUPER MART CONVENIENCE STORES, INC.
By: /s/ XXXX X. XXXX
---------------------------
Name: Xxxx X. Xxxx
Title: Chief Financial Officer and Secretary
XXXXXXX OIL COMPANY, INC.
By: /s/ XXXX X. XXXX
---------------------------
Name: Xxxx X. Xxxx
-------------------------
Title: SEC/CFO
------------------------
WLD TRUST
By: /s/ XXXXXXX X. XXXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
-------------------------
Title: Vice President
------------------------
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NATIONAL CANADA FINANCE CORP.
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
By: /s/ XXXXXX X. XXXXXXX, XX.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President
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EXHIBIT A
CONVENIENCE STORES
DIAMOND SHAMROCK STORES (identified by location)
0000 X. Xxxx
Xxxxxxx, XX 00000
000 Xxxxx Xxxx @ Xxxxx Xxxxxx
Xxxxx, XX 00000
0000 Xxxxxxxx @ Xxxxxxxx Xxxx
Xxxxx Xxxxxxxx, XX 00000
0000 X Xxxx @ 00 Xxxx
Xxxxx Xxxxxxxx, XX 00000
0000 Xxxxx Xxxxxx @ 00 Xxxx
Xxxxx Xxxxxxxx, XX 00000
000 Xxxxx Xxxxxx & Xxxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
000 Xxxxx Xxxxxxxx Xxxxxx & Xxxxx
Xxxxxxxx, XX 00000
0000 Xxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
PETRO-XXXX XXXXXXXX AND WESTEC FRUITA STORES (identified by location)
0000 Xxxxxxxx
Xxxxx Xxxxxxxx, XX 00000
0000 Xxxxxxx 0 & 00
Xxxxx Xxxxxxxx, XX 00000
000 Xxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
000 X. Xxxx
Xxxxxxxx, XX 00000
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EXHIBIT B
FRACTIONATOR
One (1) Deethanizer Tower, Xxxxxx, Mfg., Serial No. 63.9, approx. 30" x
41-1/2', 596 PSI at 300 degrees, Insulated, 11,800 lb.
One (1) Depropanizer Tower, Xxxxxx Mfg., Serial No. 63.10, approx. 30" x 65',
291 PSI at 300 degrees, Insulated, 18,900 lb.
One (1) Debutanizer Tower, Pipeline Services, Serial No. 684, approx. 24" x
60', 330 PSI at 400 degrees, 3-Section Flanged, Estimated 10,000-12,000 lb.
One (1) Debutanizing Tower, Transmix, Mfg. Xxxxxx, Serial No. 63.11 approx. 18"
x 66', 210 PSI at 300 degrees, 11,500 lb.
One (1) Vacuum Tower, BTX, as shown on list, approx. 30" x 45', currently not
in service, estimated weight 10,000
One (1) Deethanizer Heat Exchanger/Reboiler, KEMCO, Mfg. 1963, Serial No.
63-222, 560 PSI at 300 degrees, approx. 175 sq. ft. capacity
One (1) Depropanizer Heat Exchanger/Reboiler, list shows KEMCO, approx. 100 sq.
ft.
One (1) Debutanizer Heat Exchanger/Reboiler, list shows KEMCO, approx. 825 sq.
ft.
One (1) Debutanizer Heat Exchanger/Reboiler, list shows KEMCO, approx. 65 sq.
ft.
Three (3) Absorber Tanks, plate shows SEMCO, Serial Nos. A2638, A2639, A2640,
Vertical Carbon Steel Seam Welded, approx. 72" x 22', 403 PSI at 750 degrees,
Mfg. 1963, storage only
Two (2) Deabsorber Tanks, Regeneration Exchanger, currently not in service,
plate shows SEMCO, approx. 72" x 20', Serial Nos. A2642 and A2641, 430 PSI at
650 degrees
One (1) Cooling Tower, list shows XXXXXX, 12,800 sq. ft., 10 H.P., Debutanizer
Condenser
One (1) Cooling Tower, list shows 37,400 sq. ft. capacity, two (2) top mounted
30 H.P. electric motors, high degree difficulty of removal,
Deethanizer/Depropanizer Condenser
One (1) Cooling Tower, list shows 11,800 sq. ft., 20 H.P. motor, Debutanizer
Condenser
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One (1) Furnace, Xxxxxxxxx Xxxxx Hot Oil Heater, 10M BTU per hour, vertical,
gas fired, 400 PSI at 650 degrees, Serial No. 63-5-7810, with Xxxxxx and Xxxxxx
Chart Records, Honeywell Temperature Indicator, related equipment
One (1) Furnace, Xxxxxxxxx Xxxxx Hot Oil Heater, 5M BTU per hour, vertical, gas
fired, 200 PSI at 650 degrees, Serial No. 63-5-7811, currently not in service
[C-]
Lot Transmix System, includes Xxxxxxxxx-Xxxx 2X1X10 Pump, 3 H.P. motor, Xxxxxx
Dust Scrubber with Serial No. 63-22, 495 PSI and 150 degrees, approx. 28.7 5" x
6' Tank, Xxxxxx Cooling Tower with 7-1/2 H.P. motor, 3 H.P. feed pump, etc.
Lot Hot Oil System, includes 25 H.P. Skidded Pump, Young Aftercooler, three (3)
valves, 4' x 8' Expansion Tank, related equipment
One (1) Pre-Heater, five (5) oval tubes, located behind #2 Debutanizer
One (1) Gas Compressor, Worthington, piston type, 130 H.P., list shows 10-1/2"
x 11" - 8 cylinder, located near large cooling tower
Lot Gas Compressor, Sundyne, includes two (2) 125 H.P. vertical turbine pumps,
one (1) currently disassembled, both not in service, [C-]
One (1) Triplex Pump, Xxxxxxxx, 30 H.P. motor
One (1) Quintiplex Pump, Xxxxxxxx, Model 5P-200A, 20 H.P.
Lot Surge/Scrubber Skid, includes SEMCO approx. 5' x 16' horizontal fuel gas
surge tank, SEMCO approx. 24" x 10' horizontal fuel gas scrubber tank, related
valves, piping, located near Xxxxxxxx Triplex and Quintiplex pumps, currently
not in service
Lot Reflux Accumulator Skid, includes Xxxxxx approx. 30" x 4-1/2' Tank, related
valves, piping, two (2) Pacific pumps with 10 H.P. motors, 5 H.P. pump, etc.
One (1) Air Compressor, Xxxxxx, 2-Stage, 20 H.P. motor, horizontal tank
27
28
EXHIBIT C
DESCRIPTION OF XXXXXX COLLATERAL
Real Property: The real estate pertaining to the convenience stores
described in Exhibit "A"
Personal Property and Fixtures:
1) That certain Asset Purchase and Branding Agreement dated
October 29, 1996 between Diamond Shamrock and Wescourt, as amended from time to
time in accordance with the terms thereof, which agreement has been assigned to
SMCS, subject to the terms of that certain Assignment of Representations,
Warranties, Covenants, Indemnities and Rights (the "Acquisition Assignment
Agreement") between SMCS and Xxxxxx; provided, that notwithstanding anything
herein to the contrary, the foregoing shall not include the terms and
conditions of such agreement which pertain to SMCS' accounts or inventory or
the proceeds from such inventory, accounts or cash;
2) All equipment, machinery, furniture, furnishings and fixtures
owned or leased by SMCS located on or used in the operation of a convenience
store business at the addresses on Exhibit "A", including, without limitation,
the convenience store, together with all furniture, fixtures, equipment in the
convenience store, any and all lighting (including without limitation any and
all lighting fixtures, lighting pedestals, and flood lights), removable signage
of all varieties (to the extent owned and not leased, except as provided in the
Acquisition Assignment Agreement), sprinkler controls, sprinkler solenoids,
sprinkler heads, exterior menu boards and exterior intercom ordering systems,
exterior music speakers and pedestals, and any and all personal property of any
kind or nature contained in, on, or around and/or associated, in any manner,
with the operation of the convenience store, and all building and construction
materials, supplies and equipment incorporated in the convenience store and all
machinery, appliances, pipes, conduits, generators, engines, pumps, motors,
compressors, boilers, condensing units, disposals, sprinklers, wiring and
furnishings of every kind and description which may be used in connection with
the operation of and located inside the convenience store; and any and all
gasoline or petroleum equipment for use with gasoline or petroleum products,
utensils, parts and spare parts therefor; all outside removable items and any
and all ice machines, ice cream machines, warmers, refrigerators, freezers,
ovens, and toasters; all security, fire, smoke and other alarm systems; all
cash registers and point-of-sale terminals; all computers (hardware and
software); all in-store communication devices; together with any and all
extensions, additions, improvements, betterments, after-acquired property that
constitutes equipment, machinery, furnishings, and fixtures of the nature
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described herein, renewals, replacements and substitutions or proceeds from a
voluntary or involuntary sale, liquidation or conversion of any of the
foregoing; and all attachments, additions and accessions thereto, all whether
nor or hereafter existing or acquired;
3) All of SMCS' existing and after-acquired liquor licenses and
lottery licenses used by SMCS in connection with a convenience store business
at the addresses on Exhibit "A";
4) All agreements affecting the use, enjoyment or occupancy of a
convenience store business at the addresses on Exhibit "A", now or hereafter
entered into (the "LEASES") and the immediate and continuing right to collect
all rents, income, receipts, royalties, profits, issues, service
reimbursements, fees, revenues and prepayments of any of the same from or
related to the convenience store from time to time accruing under the Leases
(the "RENTS");
5) All claims, demands, rights of action, judgments, insurance
proceeds, compensation, awards of damages and settlements due SMCS hereafter
made resulting from the taking of a convenience store business at the addresses
on Exhibit "A", or any part thereof, by any lawful power or authority by
exercise of the rights of condemnation or under the power of eminent domain, or
for any damage (whether caused by such taking, by casualty or otherwise) to the
convenience store or any part thereof;
6) To the extent assignable, all now or hereafter existing
management contracts and all permits, certificates, licenses, approvals,
entitlements and authorizations, however characterized, issued or in any way
furnished for the acquisition, construction, operation and use of a convenience
store business at the addresses on Exhibit "A" and/or leases, including
building permits, environmental certificates, licenses, certificates of
operation, warranties and guaranties;
7) All of SMCS' rights in and to all trademarks, tradenames,
assumed names, and other rights and interests in and to the names and marks
used by SMCS in connection with a convenience store business at the addresses
on Exhibit "A"; and
8) Any monies on deposit with or for the benefit of Xxxxxx
including deposits for the payment of real estate taxes.
Notwithstanding anything to the contrary herein, the foregoing collateral shall
not include (i) any of SMCS' accounts, inventory, cash (except (A) all
insurance proceeds, condemnation and other proceeds related to (1) through (7)
above and (B) monies referenced in (8) above to the extent related to real
estate owned or leased by SMCS), or the proceeds from such accounts, inventory
or cash, or (ii) any assets transferred by Portfield or any of its directly or
indirectly owned subsidiaries to SMCS after March 12, 1997.
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EXHIBIT D
DESCRIPTION OF SECOND XXXXXX COLLATERAL
1. All of the following pertaining to Borrowers' equipment:
(a) All Equipment, whether now owned or existing or
hereafter created, acquired or arising, or in which such Borrower now
has or hereafter acquires any rights (the term "Equipment" means and
includes all equipment and any other machinery, tools, fixtures, trade
fixtures, furniture, furnishings, office equipment and vehicles
(including vehicles subject to a certificate of title law), now or
hereafter used or usable in connection with such Borrower's business,
together with all parts, accessories and attachments relating to any
of the foregoing), including, without limitation, the Fractionator (as
defined in the Fourth Amendment);
(b) All supporting evidence and documents relating to any
of the above-described property, whether now owned or existing or
hereafter created, acquired or arising, including, without limitation,
delivery and installation certificates, invoice copies, delivery
receipts, insurance certificates and the like, together with all books
of account, ledgers and cabinets in which the same are reflected or
maintained;
(c) All accessions and additions to, and substitutions
and replacements of, any and all of the foregoing, whether now owned
or hereafter existing or hereafter created, acquired or arising; and
(d) All cash proceeds of the foregoing and any other
proceeds of the foregoing not constituting NCFC Collateral and all
insurance of the foregoing and cash proceeds thereof, whether now
owned or existing or hereafter created, acquired or arising.
2. All of the following pertaining to the shares of Wesfrac,
Westec Denver, and Xxxxxxx:
Any and all right, title and interest of Wescourt Group, Inc.
and Wesfrac, Inc., whether now owned or existing or hereafter created,
acquired or arising, in and to the following:
(i) all shares of the capital stock of Wesfrac,
Inc., Westec Denver, Inc. and Xxxxxxx Oil Company, Inc. owned
or held by Wescourt Group, Inc. and Wesfrac, Inc., whether now
existing or hereafter formed or acquired (those shares
delivered to and deposited with Xxxxxx
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Financial, Inc., and all substitutions and additions to such
shares (herein, the "Pledged Securities");
(ii) all dividends, distributions and sums
distributable or payable from, upon or in respect of the
Pledged Securities;
(iii. all other rights and privileges incident to the Pledged Securities; and
(iv) all cash proceeds of the foregoing and any
other proceeds of the foregoing not constituting NCFC
Collateral.
3. The collateral described in the Assignment of Stock Purchase
Agreement between XxXxx Xxxxxxx, Xxx Xxxxxxx, Xxx Xxxxxxx and Wesfrac dated on
or about April 11, 1997.
REAL PROPERTY
The following described property of Fruita RP Holding and all cash
proceeds and other proceeds thereof not constituting NCFC Collateral (which
property is hereinafter sometimes collectively referred to as the "Property"):
(a) The real estate located at 0000 Xxxxxxx 0 & 00,
Xxxxxx, Xxxxxxxx 00000 (the "Land");
(b) All improvements of every nature whatsoever now or
hereafter situated on the Land and owned by Fruita RP Holding (the
"Improvements"), and all machinery, equipment and mechanical systems
and other equipment now or hereafter owned by Fruita RP Holding and
used in connection with the operation of the Improvements;
(c) All easements and appurtenances now or hereafter in
any way relating to the Land or Improvements or any part thereof;
(d) All agreements affecting the use, enjoyment or
occupancy of the Land and/or Improvements now or hereafter entered
into (the "Leases") and the immediate and continuing right to collect
all rents, income, receipts, royalties, profits, issues, service
reimbursements, fees, revenues and prepayments of any of the same from
or related to the Land and/or Improvements from time to time accruing
under the Leases and/or the operation of the Land and/or Improvements
(the "Rents"), reserving to Fruita RP Holding, however, so long as no
"Event of Default" has occurred under the Deed of Trust from Fruita RP
Holding to Xxxxxx, a revocable license to
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receive and apply the Rents in accordance with the terms and
conditions of Paragraph 9 of such Deed of Trust;
(e) All claims, demands, judgments, insurance proceeds,
awards of damages and settlements hereafter made resulting from the
taking of the Land and/or the Improvements or any part thereof under
the power of eminent domain, or for any damage (whether caused by such
taking, by casualty or otherwise) to the Land or the Improvements or
any part thereof;
(f) To the extent assignable, all now or hereafter
existing management contracts and all permits, certificates, licenses,
approvals, entitlements and authorizations, however characterized,
issued or in any way furnished for the acquisition, construction,
operation and use of the Land, Improvements and/or Leases, including
building permits, environmental certificates, licenses, certificates
of operation, warranties and guaranties;
(g) Any monies on deposit with or for the benefit of
Xxxxxx for the payment of real estate taxes, insurance and other
matters pertaining to the Property.
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