EXHIBIT 10.45
SECOND AMENDED AND RESTATED INDEMNITY AND
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HOLD HARMLESS AGREEMENT
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X. X. XXXXXXXX, XX. - INDEMNITOR
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This Second Amended and Restated Indemnity and Hold Harmless Agreement (the
"Agreement") is entered into on this 30th day of January, 1997 by X.X. Xxxxxxxx,
Xx. ("Indemnitor") as an amendment and restatement and continuation in its
amended and restated form of the certain Amended and Restated Indemnity and Hold
Harmless Agreement dated the 24th day of May, 1994 by X. X. Xxxxxxxx, Xx., which
was an amendment and restatement and continuation in its amended and restated
form of that certain Indemnity and Hold Harmless Agreement dated May 1, 1992
(collectively the "Previous Indemnity and Hold Harmless Agreements") for the
benefit of Petro Stopping Centers, L.P., a Delaware limited partnership (the
"Partnership"), Petro Holdings G.P. Corp., a Delaware corporation ("Petro
Holdings") in its capacity as a general partner of the Partnership, Petro, Inc.,
a Texas corporation ("Petro"), in its capacity as a general partner of the
Partnership and Petro Financial Corporation, a Delaware corporation and wholly
owned subsidiary of the Partnership ("Petro Financial"), as obligors and/or
guarantors of certain indebtedness of the Partnership and Petro PSC, with
respect to certain obligations of indebtedness which are more specifically
defined below as either the "Obligations," or "1997 Debt Obligations."
RECITALS
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Indemnitor was a party to that certain Participation Agreement (the
"Participation Agreement"), dated May 1, 1992 and that certain Amended and
Restated Limited Partnership Agreement of Petro PSC Properties, L.P. (the
"Partnership Agreement"), dated May 1, 1992. Pursuant to the Participation
Agreement and the Partnership Agreement, Indemnitor agreed to contribute and
conveyed to the Partnership all of those rights and assets more specifically
described in exhibits to the Participation Agreement, subject to such
obligations and indebtedness as the parties to the Partnership Agreement
expressly agreed that the Partnership would assume as set forth in exhibits to
the Participation Agreement and the Partnership Agreement.
Upon the formation of the Partnership and due to certain obligations of
indebtedness more specifically described in Exhibit "A" attached to each of the
Previous Indemnity and Hold Harmless Agreements and made a part thereof for all
purposes (the "Obligations") constituting recourse and nonrecourse debt for
which the Partnership, Roadside, Inc., a Delaware corporation ("Roadside")
(which up until and including the date of this Agreement was a general partner
of the Partnership), Petro and Petro Financial would have been liable, and but
for the operation of the Previous Indemnity and Hold Harmless Agreements, the
Partnership, Roadside, Petro and Petro Financial would have borne the economic
risk of loss for the Obligations for purposes of Section 752 of the Internal
Revenue Code of 1986, as amended, and Treasury Regulations (S) 1.752-2 (the
"Economic Risk of Loss"). As a consequence, but for the operation of the
Previous Indemnity and Hold Harmless Agreements, the Partnership, Roadside,
Petro and Petro Financial would have been allocated all of the Obligations for
purposes of Section 752 of the Code and Treasury Regulation (S) 1.752-2.
To ensure that Indemnitor would be liable for a specific dollar amount of
the Obligations or such greater or lesser amount as specified in paragraph 1.2
of each of the Previous Indemnity and Hold Harmless Agreements, (the "Old
Indemnified Amount") and bear the Economic Risk of Loss with respect to the Old
Indemnified Amount, it was necessary that Indemnitor, under certain
circumstances pursuant to the terms of the Previous Indemnity and Hold Harmless
Agreements, have the sole liability to pay an amount equal to the Old
Indemnified Amount in connection with the Obligations. Accordingly, for
purposes of ensuring that Indemnitor bore the Economic Risk of Loss as to the
Old Indemnified Amount and that an amount equal to the Old Indemnified Amount of
the Obligations would be allocated to Indemnitor for purposes of Section 752 of
the Code and Treasury Regulation (S) 1.752-2, Indemnitor entered into the
Previous Indemnity and Hold Harmless Agreements for the benefit of the
Partnership, Roadside, Xxxxx, Xxxxx Financial and other parties.
Pursuant to an offering of high yield debt in the amount of $135 million by
the Partnership and Petro Financial, which is unsecured and in registered and
negotiable form, and a new $115 million credit agreement with The First National
Bank of Boston (with the foregoing $135 million high yield debt offering and new
credit agreement more specifically described in the attached Exhibit "A" and
hereinafter referred to as the "1997 Debt Obligations") the debt represented by
the Obligations will be refinanced and repaid; and to evidence the continuing
intent and legal obligation to continue the terms and provisions of the Previous
Indemnity and Hold Harmless Agreements with respect to the 1997 Debt
Obligations, as amended hereunder, Indemnitor is entering into this Agreement.
INDEMNITY
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NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, including, but not limited to, the events which were attendant to
the formation and operation of the Partnership and the creation and issuance of
the 1997 Debt Obligations, the parties agree as follows:
1. INDEMNIFICATION PROVISIONS
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1.1 Indemnitor shall indemnify and hold harmless the Partnership, Petro
Holdings, Petro and Petro Financial, and their respective legal representatives,
successors, assigns, subsidiaries and past and present officers, directors,
agents and employees, (collectively, the "Indemnified Parties") from and against
any and all claims, causes of action, liabilities, obligations, losses, costs,
damages and expenses (including reasonable attorneys' fees) suffered or incurred
by any of the Indemnified Parties, of whatever kind, nature or character,
whether arising before or after the date of this Agreement, and whether known or
unknown, liquidated or unliquidated, fixed or contingent, arising from any loan,
assumption, guaranty or other agreement executed by any Indemnified Party or by
reason of operation of law, in connection with the 1997 Debt Obligations and the
liabilities thereunder, including, but not limited to, the liability of any
Indemnified Party who may be a subrogee with respect to the 1997 Debt
Obligations (the "Indemnified Claims"), in an amount equal to $41,600,000, or
such greater or lesser amount, as specified in paragraph 1.2, below (with the
foregoing amount hereinafter referred to as the "Indemnified Amount"); provided,
however, the indemnity and hold harmless provided hereunder shall not relieve
the Indemnified Parties from making regular interest and
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principal payments on and otherwise satisfying all obligations with respect to
the 1997 Debt Obligations until (i) an Event of Default or Default (as defined
in the instruments giving rise to and governing the repayment of the 1997 Debt
Obligations) has occurred in connection with one or more of the 1997 Debt
Obligations which remains uncured and/or is not otherwise waived, (ii) all
amounts owing on the 1997 Debt Obligations in default become immediately due and
payable, and (iii) all real and personal property, if any, liable for or
securing the 1997 Debt Obligations in default has been exhausted or otherwise
disposed of to satisfy the 1997 Debt Obligations. The Indemnified Amount
payable hereunder shall be paid to the Indemnified Parties proportionately based
on the Indemnified Claims incurred by each of the Indemnified Parties over the
total Indemnified Claims incurred by all of the Indemnified Parties.
1.2 Notwithstanding anything contained herein to the contrary, the amount
which Indemnitor shall be required to indemnify and hold harmless the
Indemnified Parties in the manner specified in paragraph 1.1, above, with
respect to the 1997 Debt Obligations shall be no less nor more than the amount
necessary to cause Indemnitor's adjusted tax basis in his interest in the
Partnership pursuant to Subchapter K of Chapter 1 of Subtitle A of the Code at
all times to equal no less than a minimum of One Dollar ($1.00), determined
after (i) taking into account all adjustments to Indemnitor's tax basis in his
interest in the Partnership resulting from Partnership operations, including,
but not limited to, the allocation to Indemnitor of his proportionate share of
income, gains, deductions, losses, credits and all other tax attributes pursuant
to the terms of the Partnership Agreement, (ii) allocating any and all
Nonrecourse Debt of the Partnership and any lower-tier partnerships in which the
Partnership owns an interest to Indemnitor and the other Partners of the
Partnership pursuant to the terms and provisions of Section 752 of the Code and
Treasury Regulation (S)(S) 1.752-3 and 1.752-4, and (iii) allocating any and all
Recourse Debt of the Partnership and any lower-tier partnerships in which the
Partnership owns an interest to Indemnitor and the other Partners of the
Partnership pursuant to the terms and provisions of Section 752 of the Code and
Treasury Regulation (S)(S) 1.752-2 and 1.752-4, and after giving effect to the
terms and provisions of this Agreement and its effect on the obligations of
Indemnitor with respect to such Recourse Debt.
1.3 For purposes of this Agreement, the terms "Recourse Debt" and
"Nonrecourse Debt" shall have the meanings assigned to such terms pursuant to
Treasury Regulation (S) 1.752-1(a), and the term "Partner" shall have the
meaning assigned to such term in the Partnership Agreement. Likewise, the terms
"Default" and "Event of Default" shall have the meanings assigned to such terms
in the Indenture dated January 29, 1997 from the Partnership and Petro Financial
to State Street Bank and Trust Company, Boston, Massachusetts, Trustee, relating
to the 1997 Debt Obligations.
1.4 In interpreting and applying the provisions of paragraphs 1.1 and 1.2
of this Agreement, it is hereby specifically agreed by the parties hereto that
the intent of the parties in entering into this Agreement is to subject
Indemnitor to the Economic Risk of Loss for all matters related to the 1997 Debt
Obligations in an amount sufficient for Indemnitor to avoid receiving a
distribution pursuant to Section 752(b) of the Code and the Treasury Regulations
promulgated thereunder to cause Indemnitor to recognize gain pursuant to Section
731(a) of the Code, by Indemnitor receiving the equivalent of a money
distribution which exceeds Indemnitor's adjusted tax basis in his Partnership
interest immediately before such distribution. To that end, this Agreement
shall be interpreted to subject Indemnitor to the Economic Risk of
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Loss with respect to the Indemnified Amount and the 1997 Debt Obligations, as
provided in Treasury Regulation (S) 1.752-2, in an amount sufficient to cause
Indemnitor's adjusted tax basis in his interest in the Partnership at all times
to equal no less than a minimum of One Dollar ($1.00).
2. BINDING EFFECT OF AGREEMENT
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This Agreement shall be binding upon Indemnitor and his legal
representatives, successors and assigns, and shall be binding upon and inure to
the benefit of the Indemnified Parties and their representatives, successors and
assigns. The indemnities, obligations and agreements of Indemnitor provided for
in this Agreement shall continue in full force and effect until Indemnitor
ceases to be a Partner in the Partnership (unless the Partnership agrees in
writing that the terms of this Agreement shall continue in force with respect to
Indemnitor as a non-Partner of the Partnership), until the liabilities and
obligations of the Indemnified Parties with respect to the 1997 Debt Obligations
and any succeeding indebtedness have terminated or are otherwise barred by
operation of law, or this Agreement is terminated by the mutual written
agreement of Indemnitor and the Indemnified Parties.
3. NO SET-OFF
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3.1 No payment required to be made by Indemnitor pursuant to this
Agreement for the benefit of the Indemnified Parties shall be subject to any
right of set-off, contribution, reimbursement, subrogation, counterclaim,
defense, abatement, suspension, deferment or reduction, and Indemnitor shall not
have any right to be released, relieved, or discharged from any obligation or
liability under this Agreement for any reason whatsoever except as expressly
provided herein.
3.2 Notwithstanding the provisions of Section 3.1 above, to the extent
that other current or former Partners in the Partnership enter into Second
Amended and Restated Indemnity and Hold Harmless Agreements or Indemnity and
Hold Harmless Agreements similar in terms and effect to this Agreement
(collectively the "All Existing Indemnity and Hold Harmless Agreements") and the
actual liability hereunder and under such other similar agreements with respect
to the 1997 Debt Obligations is less than the aggregate indemnity obligations of
all such current and former Partners under the terms of such agreements
(including, without limitation, this Agreement), the aggregate liabilities under
the 1997 Debt Obligations shall be borne proportionately by such former and
current Partners determined as follows for each such current and former Partner,
including Indemnitor: (i) the percentage derived by dividing (a) a numerator
consisting of the maximum liability of each former or current Partner under his
Indemnity and Hold Harmless Agreement (whether amended or restated or otherwise)
by (b) a denominator consisting of the total of all such maximum liabilities of
each such former or current Partners under All Existing Amended and Restated
Indemnity and Hold Harmless Agreements, multiplied by (ii) the total of all such
liabilities of each such former or current Partners under All Existing Indemnity
and Hold Harmless Agreements.
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4. NOTICE
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Any Indemnified Party hereunder who wishes to enforce the terms and
conditions of this Agreement against Indemnitor shall provide written notice to
Indemnitor of such intention. Any written notice may be given by an Indemnified
Party and shall be delivered to Indemnitor by mailing the same by United States
mail, postage prepaid, or by courier or facsimile transmission, or by delivery
in person, addressed or delivered as follows:
ATTN: X. X. Xxxxxxxx, Xx.
c/o Petro, Inc.
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
With a copy to:
Kemp, Smith, Xxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
ATTN: Xx. Xxxxx X. Xxxxxxx
5. SEVERABILITY
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This Agreement is severable, and if for any reason any provision or
provisions are determined to be invalid, inoperative, or contrary to any
existing or future law, the remainder of this Agreement shall be considered
valid and operative and effect shall be given to the intent manifested by the
portion held invalid or inoperative.
6. TERMINATION, AMENDMENT, MODIFICATION AND SUPPLEMENTATION
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This Agreement may be terminated, amended, modified or supplemented only by
the mutual written agreement of Indemnitor and the Indemnified Parties.
7. COUNTERPARTS
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This Agreement may be executed by the parties in any number of identical
counterparts, all of which together shall constitute a single binding agreement
between the parties. It shall not be necessary for any particular party to
execute the same counterpart for the various counterparts hereunder to
constitute a binding agreement.
8. GOVERNING LAW
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THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE
OF TEXAS.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be
effective from the date first written above.
INDEMNITOR
/s/ X. X. Xxxxxxxx
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X. X. Xxxxxxxx, Xx.
AGREEMENT AND CONSENT
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Petro Stopping Centers, L.P., Petro Holdings G.P. Corp., Petro Financial
Corporation and Petro, Inc. on behalf of themselves and their respective legal
representatives, successors, assigns, subsidiaries and past and present
officers, directors, agents and employees, as the Indemnified Parties under the
Amended and Restated Indemnity and Hold Harmless Agreement dated May 24, 1994,
which is amended and restated hereunder, hereby consent and agree to the various
amendments made hereunder to the Amended and Restated Indemnity and Hold
Harmless Agreement dated May 24, 1994.
PETRO STOPPING CENTERS, L.P., a
Delaware limited partnership
By: PETRO, INC., a Texas corporation,
General Partner
By: /s/ X. X. Xxxxxxxx
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Authorized Officer
PETRO HOLDINGS G.P. CORP., a Delaware
corporation
By: /s/ Xxxxxxx Xxxxx
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Authorized Officer
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PETRO FINANCIAL CORPORATION, a Delaware
corporation
By: /s/ Xxxxx X. Zine
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Authorized Officer
PETRO, INC., a Texas corporation
By: /s/ X. X. Xxxxxxxx
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Authorized Officer
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