EXHIBIT 10.6
ASSET PURCHASE AGREEMENT
dated as of
July 22, 1993
among
T.S. NETWORK CORP.
and
BP EXPLORATION & OIL INC.
and
TRUCKSTOPS CORPORATION OF AMERICA INC.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................... 1
1.1 DEFINITIONS.......................................... 1
ARTICLE II TRANSFER OF PURCHASED ASSETS......................... 9
2.1 Assets to be Conveyed................................ 9
2.2 Excluded Assets...................................... 12
2.3 Assumption of Sellers' Liabilities................... 14
2.4 Assignment of Contracts and Rights................... 16
2.5 Purchase Price for BP Assets......................... 17
2.6 Allocation of Purchase Price for
Purchased Assets................................... 18
2.7 Joint Technology..................................... 18
ARTICLE III THE CLOSING.......................................... 18
3.1 Closing.............................................. 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS............ 19
4.1 Corporate Existence and Power........................ 19
4.2 Corporate Authorization.............................. 20
4.3 Governmental Authorization........................... 20
4.4 Non-Contravention.................................... 21
4.5 Financial Statements................................. 21
4.6 No Undisclosed Liabilities........................... 22
4.7 Absence of Certain Changes........................... 22
4.8 No Brokerage Fees.................................... 24
4.9 Properties; Leases; Tangible Assets.................. 24
4.10 Sufficiency of and Title to the
Transferred Assets................................. 27
4.11 Affiliates........................................... 28
4.12 Litigation........................................... 28
4.13 Contracts............................................ 28
4.14 Permits.............................................. 29
4.15 Compliance with Laws................................. 30
4.16 Employment and Similar Agreements:
Obligations Upon Change in Control................... 30
4.17 Labor and Employment Matters......................... 31
4.18 Employee Benefit Plans............................... 31
4.19 Intellectual Property................................ 33
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PAGE
4.20 Customers............................................ 34
4.21 Franchisee Relationships............................. 34
4.22 TAFSI................................................ 34
4.23 Disclaimer........................................... 35
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER.............. 36
5.1 Organization and Existence........................... 36
5.2 Corporate Authorization.............................. 36
5.3 Governmental Authorization........................... 36
5.4 Non-Contravention.................................... 36
5.5 No Brokerage Fees.................................... 37
5.6 Litigation........................................... 37
ARTICLE VI CERTAIN UNDERSTANDINGS AND AGREEMENTS OF
THE PARTIES........................................ 37
6.1 Conduct of the Business.............................. 37
6.2 TAFSI................................................ 41
6.3 Confidentiality...................................... 41
6.4 Access to Records and Files.......................... 41
6.5 Public Announcements................................. 42
6.6 No Shopping.......................................... 42
6.7 Further Assurances................................... 43
6.8 Cooperation in Litigation............................ 43
6.9 Certain Filings...................................... 43
6.10 Administration of Accounts........................... 44
6.11 Title Insurance; Encumbrances........................ 44
6.12 Employees and Benefits............................... 45
6.13 Inventory............................................ 47
6.14 Cooperation with Respect to Financing................ 50
6.15 Recent Financial Statements.......................... 51
6.16 Schedule Updates..................................... 51
6.17 Assistance with Accounts Receivable.................. 51
6.18 Financing............................................ 52
6.19 Properties........................................... 52
ARTICLE VII CONDITIONS TO CLOSING................................ 52
7.1 ..................................................... 52
7.2 Conditions to Obligations of Buyer................... 52
7.3 Conditions to Obligations of the Sellers............. 55
ARTICLE VIII INDEMNIFICATION...................................... 56
8.1 Indemnification by Seller............................ 56
8.2 Indemnification by Buyer............................. 58
8.3 Defense of Claims.................................... 59
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PAGE
8.4 Survival of Representations and Warranties
.................................................. 60
8.5 Limitations on Indemnification for
Breaches of Representations and
Warranties......................................... 60
8.6 Cap.................................................. 61
8.7 Limitation on Damages................................ 61
8.8 Exclusive Remedies................................... 62
8.9 Insurance............................................ 62
ARTICLE IX TERMINATION.......................................... 62
9.1 Grounds for Termination.............................. 62
ARTICLE X MISCELLANEOUS........................................ 63
10.1 Notices.............................................. 63
10.2 Amendments; Waivers; Remedies........................ 65
10.3 Expenses............................................. 65
10.4 Successors and Assigns............................... 66
10.5 Governing Law........................................ 66
10.6 Counterparts; Effectiveness.......................... 66
10.7 Entire Agreement..................................... 66
10.8 Jurisdiction......................................... 66
10.9 Captions............................................. 66
10.10 Severability......................................... 66
10.11 Construction......................................... 67
10.12 Taxes................................................ 67
10.13 Exhibit and Schedules................................ 70
10.14 No Third Party Beneficiaries......................... 70
10.15 No Inducements....................................... 70
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EXHIBITS
Exhibit A - Assignment and Assumption Agreement
Exhibit B - Credit Card Agreement
Exhibit C - Environmental Agreement
Exhibit D - Fuel Supply Agreement
Exhibit E - Non-Competition Agreement
Exhibit F - Office Sub-Lease
Exhibit G - Services Agreement
Exhibit H - TAFSI Assumption Agreement
Exhibit I - Trademark License Agreement
Exhibit J - Software License Agreement
Exhibit K - Opinion of Counsel to BP
Exhibit L - Leased Property Assignment and Assumption
Agreements
Exhibit M - Sellers' 7.2(a) Certificate
Exhibit N - Sellers' 7.2(b) Certificate
Exhibit O - Buyer's 7.3(a) Certificate
Exhibit P - Buyer's 7.3(b) Certificate
Exhibit Q - Opinion of Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx
SCHEDULES
1.1(a) - Accounting Principles
1.1(b) - Assignment Trademarks
1.1(c) - Franchise Agreements
1.1(d) - Franchisee Truckstops
2.1(ii) - Equipment
2.1(vii) - Patents, Trademarks, etc.
2.2(iv) - Headquarters Property
4.1 - Authority to do Business
4.3(a) - Governmental Approvals
4.4 - Consents
4.5 - Financial Statements
4.6 - Undisclosed Liabilities
4.7(a) - Material Adverse Effect
4.7(b) - Recent Material Contracts
4.9(a) - Encumbrances
4.9(b) - Maintenance and Repair
4.9(c) - Owned Real Property
4.9(d)(i) - Leases
4.9(d)(ii) - Non-assignable Leases
4.9(e) - Real Property Restrictions
4.9(f) - Existing Highway Plans
4.9(g) - Computer Hardware
4.9(h) - Work in Progress
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4.12(a) - Litigation
4.12(b) - Proceedings seeking to enjoin
the transaction
4.13(a) - Contracts
4.13(b)(i) - No material defaults
4.13(b)(ii) - No defaults
4.13(b)(iii) - Material Contracts Assignable
4.13(b)(iv) - Contracts Assignable
4.14(a)(i) - Material Permits
4.14(a)(ii) - Permits
4.14(b)(i) - Material Required Permit Approvals
4.14(b)(ii) - Required Permit Approvals
4.14(b)(iii) - Material Permits Assignable
4.14(b)(iv) - Permits Assignable
4.15 - Compliance with Law
4.16 - Employment Agreements
4.18(a) - ERISA Plans
4.18(b) - Benefit Arrangements
4.18(c) - Multiemployer Plans
4.18(d) - Workers' Compensation
4.18(e) - WARN Compliance
4.19(i) - Intellectual Property
4.19(ii) - Intellectual Property Proceedings
4.20 - Customers
4.21(a) - Generic UFOC
4.21(b) - Franchise States
4.22 - TAFSI Tax Liabilities
6.1(a)(iii) - Existing Obligations
6.1(a)(vi) - Capital Expenditures
6.1(a)(vii) - Subsequent Material Contracts
6.12(a) - Specified Employees
7.2(f) - Closing Required Permit Approvals
7.2(g) - Closing Required Contractual Consents
6.13(b) - Inventory Values
6.13(c)(ii)(1) - Hydrocarbon valuation procedures
6.13(c)(ii)(2) - Non-hydrocarbon valuation procedures
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of July 22, 1993, by and among BP
Exploration & Oil Inc., an Ohio corporation ("BP"), Truckstops Corporation of
America Inc., a Delaware corporation ("TA", and together with BP, collectively,
the "Sellers"), and T.S. Network Corp., a Delaware corporation (together with
its successors and assigns, "Buyer") (the "Agreement").
W I T N E S S E T H :
WHEREAS, Sellers conduct a truckstop business (the "Business"); and
WHEREAS, Sellers desire to sell to Buyer and Buyer wishes to
purchase from Sellers the Business, including sub stantially all of the
operating assets relating thereto, on the terms and subject to the conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
(a) The following terms, as used herein, have the following
meanings:
"ACCOUNTING PRINCIPLES" means: (i) those principles and practices
set forth in Section 1.1(a) of the Disclosure Schedule and (ii) to the extent
not inconsistent with (i), GAAP.
"AFFECTED EMPLOYEE" means any Employee in the Business who becomes
an employee of Buyer at the Effective Time.
"AFFILIATE" means, with respect to any Person, any Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such other Person.
"ANCILLARY AGREEMENTS" means, collectively, (i) the Non-Competition
Agreement, (ii) the Fuel Supply Agreement, (iii) the Trademark License
Agreement, (iv) the Credit Card Agreement, (v) the Services Agreement, (vi) the
Office Sub-Lease, (vii) the Assignment and Assumption
2
Agreement, (viii) the TAFSI Assumption Agreement, and (ix) the Software License
Agreement.
"APPLICABLE LAW" means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, regulation,
order, writ, injunction, directive, judgment, decree or other requirement of any
Governmental Authority applicable to such Person or its properties, assets,
officers, directors, employees, consultants or agents in connection with such
officer's, director's, employee's, consultant's or agent's activities on behalf
of such Person.
"ASSIGNED TRADEMARKS" means those U.S. trademarks, trademark
registrations, tradenames, marks, logos and other U.S. commercial symbols set
forth in Section 1.1(b) of the Disclosure Schedule.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means the Assignment and
Assumption Agreement in the form of Exhibit A.
"BP GROUP" means The British Petroleum Company p.l.c. and its direct
and indirect subsidiaries.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close.
"CENTRAL STAFF SERVICES" means the legal, cash management, treasury,
tax, insurance, health and safety and pension services, employee benefits funds
and plans provided to the Business by the headquarters and divisions of BP other
than the Business or members of the BP Group other than Sellers, including
employee and other records necessary to administer salaried payrolls and
benefits and welfare plans retained by Sellers and to file taxes, except to the
extent expressly transferred to Buyer pursuant to this Agreement.
"COMPANY TRUCKSTOP" means any truckstop utilized in the Business
which is owned or leased by any Seller.
"CONFIDENTIALITY AGREEMENT" means the Confiden tiality Agreement,
dated January 27, 1993, as amended, between The First Boston Corporation, on
behalf of Sellers, and The Clipper Group, L.P.
"CREDIT CARD AGREEMENT" means the Credit Card Agreement in the form
of Exhibit B.
3
"DAMAGES" means all demands, claims, actions or causes of action,
assessments, losses, damages (including punitive damages), costs, expenses,
liabilities, judgments, awards, fines, sanctions, penalties, and charges, and
amounts paid or payable in settlement, including (except where recovery thereof
is prohibited as a matter of law) interest on cash disbursements in respect of
any of the foregoing at the lesser of the Reference Rate in effect from time to
time and the maximum interest rate permitted by law, compounded quarterly, from
the date each such cash disbursement is made until the Person incurring the same
shall have been indemnified in respect thereof. In the event that an
Indemnifying Party elects not to assume the defense of any claim as to which an
Indemnified Party has a right of indemnification pursuant to Article 8 hereof,
Damages shall also include the reasonable costs, fees and expenses of such
Indemnified Party's attorneys, experts, accountants, appraisers, and agents
incurred in responding to, investigating and defending against such claim.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto.
"DISTRIBUTION CENTER" means the Packaged Products Service Center
located in Nashville, Tennessee.
"EFFECTIVE TIME" means 12:01 a.m. Eastern Standard Time on the
Closing Date.
"EMPLOYEE" means any employee of BP, TA or TAFSI on the Closing
Date.
"ENVIRONMENT" means navigable ocean waters, ocean waters, natures
resources, surface waters, ground water, drinking water supply, land surface,
subsurface strata and ambient air, both inside and outside of buildings and
structures.
"ENVIRONMENTAL AGREEMENT" means the Environmental Agreement dated as
of the date hereof between BP, TA and Buyer attached as Exhibit C hereto.
"ENVIRONMENTAL LAWS" means federal, state and local laws, principles
of common law, regulations and codes, as well as orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder relating to
pollution or protection of the Environment.
"ENVIRONMENTAL LIABILITIES" means all Liabilities, whether direct or
indirect, known or unknown, current or potential, absolute or contingent,
matured or unmatured,
4
past, present or future, imposed by, under or pursuant to Environmental Laws.
"ERISA AFFILIATE" means, with respect to any Person, any entity,
whether or not incorporated, which, together with such Person was or is required
to be treated as a single employer under Section 414 of the Internal Revenue
Code of 1986, as amended, or Section 4001 of ERISA.
"FRANCHISEE" means any Person who owns and independently operates a
truckstop location that is part of the Business.
"FRANCHISEE GUARANTY" means that certain Guaranty Agreement, dated
March 26, 1993, executed by BP in favor of Xxxxxxxxx Bank and Trust Company,
N.A. pursuant to which TA has guaranteed certain obligations of Iowa-80
Truckstop, Inc.
"FRANCHISE AGREEMENTS" means the franchise agreements listed in
Section 1.1(c) of the Disclosure Schedule between TAFSI and TAFSI's Franchisees.
"FRANCHISEE TRUCKSTOP" means any truckstop identified in Section
1.1(d) of the Disclosure Schedule.
"FUEL SUPPLY AGREEMENT" means the Fuel Supply Agreement in the form
of Exhibit D.
"GAAP" means generally accepted accounting prin ciples then in
effect consistently applied.
"GOVERNMENTAL AUTHORITY" means any foreign, domestic, federal,
territorial, state or local governmental authority, court, commission, tribunal
or organization or any regulatory, administrative or other agency, or any
political or other subdivision, department or branch of any of the foregoing.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"LIABILITY" means, with respect to any Person, any liability or
obligation of such Person of any kind, charac ter or description, whether known
or unknown, absolute or contingent, accrued or unaccrued, liquidated or unliqui
dated, secured or unsecured, joint or several, due or to become due, vested or
unvested, executory, determined, determinable or otherwise and whether or not
the same is required to be accrued on the financial statements of such Person in
accordance with GAAP.
5
"LIEN" means, with respect to any asset or shares of capital stock,
any mortgage, title defect or objection, restrictive covenant, adverse claim,
lien, pledge, charge, security interest, option, right of first refusal,
easement, servitude, transfer restriction, hypothecation or encum brance of any
kind in respect of such asset or shares.
"MATERIAL ADVERSE EFFECT" means a change in, or effect on, the
operations, affairs, prospects, financial condition, results of operations,
assets, or Liabilities that results in a material adverse effect on, or a
material adverse change in, the Business, considered as a whole.
"MATERIAL ADVERSE TRUCKSTOP EFFECT" means a change in or effect on
the operations, affairs, prospects, financial condition, results of operations,
assets, or Liabilities that results in a material adverse effect on, or a
material adverse change in any Company Truckstop or any Franchisee Truckstop.
"NON-COMPETITION AGREEMENT" means the Non- Competition Agreement in
the form of Exhibit E.
"OFFICE SUB-LEASE" means the Office Sub-Lease in the form of
Exhibit F.
"OUTSIDE SOURCED PETROLEUM PRODUCTS" means any petroleum or
petroleum derivative products (including, without limitation, gasoline,
distillates, lubricants or grease) acquired or to be acquired from any Person
(other than Sellers or any Affiliate of Sellers).
"PERMITS" means each approval, registration, authorization,
certificate, certificate of occupancy, consent, license, order or permit or
other similar authorization of or with any Governmental Authority necessary for
the operation of the Business or the Purchased Assets in substantially the same
manner as currently operated by the Sellers, or otherwise affecting or relating
to the Business.
"PERMITTED LIENS" means (i) Liens for taxes or governmental
assessments, charges or claims the payment of which is not yet due, or for taxes
the validity of which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP are being
maintained and set aside; (ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other similar Persons and
other Liens imposed by Applicable Law incurred in the ordinary course of
business for sums not yet delinquent or being contested in good faith and for
which adequate reserves in accordance
6
with GAAP are being maintained and set aside; and (iii) Liens relating to
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security.
"PERSON" means an individual, corporation, part nership,
association, trust, estate or other entity or organization, including a
Governmental Authority.
"PMPA" means the Petroleum Marketing Practices Act.
"PROCEEDING" means any action, suit, hearing, arbitration,
proceeding or governmental investigation brought by or against any Governmental
Authority or any other Person.
"REFERENCE RATE" means the per annum rate of interest as published
in the Wall Street Journal as the Chase Manhattan prime rate (or reference
rate). Any change in the Reference Rate shall take effect at the opening of
business on the day such published quotations change.
"REQUIRED CONSENTS" means, collectively, the Required Contractual
Consents and the Required Permit Approvals.
"REQUIRED CONTRACTUAL CONSENTS" means those consents, notices,
waivers or approvals which must be obtained by virtue of the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby to avoid the invalidity of the transfer of any Contract, the termination
thereof, a breach or a default thereunder or any other change or modification to
the terms thereof.
"REQUIRED PERMIT APPROVALS" means each govern mental or other
registration, filing, application, notice, transfer, consent, approval, order,
qualification or waiver required under Applicable Law to be obtained by the
Sellers or the Buyer by virtue of the execution and delivery of this Agreement
or the consummation of the transactions con templated hereby to avoid the loss
of any Permit.
"SELLERS' KNOWLEDGE" or "knowledge of any Seller" means the actual
knowledge of any of the following persons: X. X. Xxxxxx, X. X. Xxxx, X. X.
Xxxxxx, X. X. Xxxxxx, Xxxxxxxx X. Xxxx, Xxxxx X. XxXxxx, Xxxxx X. Xxxxxx, Xx
Xxxx or Xxx Xxxxxx.
"SERVICES AGREEMENT" means the Services Agreement in the form of
Exhibit G.
7
"SOFTWARE LICENSE AGREEMENT" means the software license from BP to
Buyer in the form of Exhibit J.
"TAFSI" means TA Franchise Systems Inc., a Delaware corporation.
"TAFSI ASSIGNMENT AND ASSUMPTION AGREEMENT" means the TAFSI
Assignment and Assumption Agreement in the form of Exhibit H.
"TAFSI SHARES" means the 100 shares of common stock, par value $1
per share, of TAFSI owned by TA.
"TAXES" means all federal, state, county, local, foreign and other
taxes, including, without limitation, income taxes, estimated taxes, profit
taxes, excise taxes, sales taxes, use taxes, value added taxes, taxes on
services, transfer taxes, gross receipts taxes, franchise taxes, gasoline and
motor fuels taxes, employment and payroll-related taxes, real and personal
property taxes, inventory and merchandise taxes, capital stock taxes, tollgate,
asset and license taxes, net worth taxes, transaction taxes and import duties,
whether or not measured in whole or in part by net income and including all
deficiencies or other additions to tax, interest and penalties with respect
thereto.
"TRADEMARK LICENSE AGREEMENT" means the Trademark License Agreement
in the form of Exhibit I.
"VENDOR OUTLEASES" means Agreements with third parties permitting
the operation of service or sales businesses (E.G., manicurist services, T-shirt
sales, etc.) at truckstops, which agreements are terminable without liability to
Sellers or their successors and assigns on no more than one month's notice.
"WARN ACT" means the Worker Adjustment and Retraining Notification
Act (and any applicable similar state law).
"WARRANTY LIABILITIES" means exclusively those Liabilities incurred
in the ordinary course of business pursuant to warranties and similar programs
of the Business to repair, replace, reperform or refund a purchase price of
goods or services sold by the Business prior to the Closing Date; PROVIDED,
HOWEVER, that such Liability shall not include any other cost, expense or
Damages (whether or not resulting from a breach of such warranty) but shall
include solely the obligation to repair, replace, reperform or refund a purchase
price of goods or services.
8
(b) Each of the following terms is defined in the section set forth
opposite such term:
TERM SECTION
Acquisition Proposal 6.6
Adjusted Closing Inventory Amount 6.13(c)
Agreement Recitals
Agreements 4.13(a)
Annual Financial Statements 4.5
Assets 2.1
Assumed Liabilities 2.3
Benefit Arrangements 4.18(b)
BP Recitals
BP Indemnitees 8.2
Business Recitals
Buyer Recitals
Buyer Indemnitees 8.1
Buyer's Basket 8.5(b)
Cap 8.6
Closing 3.1
Closing Date 3.1
Closing Inventory 6.13(c)(ii)
Closing Inventory Amount 6.13(c)(iv)
Closing Payment 6.13(c)(i)
Code 3.1(b)
Contracts 2.1(iv)
Disagreement Notice 6.13(d)(i)
Employment Agreements 4.16
Encumbrances 4.9(a)
Equipment 2.1(ii)
ERISA 2.3(v)
ERISA Plans 4.18
Estimated Inventory Amount 6.13(c)(i)
Excluded Assets 2.2
Excluded Liabilities 2.3
Financial Statements 4.5
Headquarters 2.2(iv)
Indemnified Party 8.3
Indemnifying Party 8.3
Intellectual Property 4.19
Inventory 2.1(iii)
Interim Financial Statements 4.5
Leased Real Property 4.9(d)
Leases 4.9(d)
Management 10.3
Material Permits 4.14(a)
Material Required Permit Approvals 4.14(b)
Non-Conveyable Properties 6.19
Offering Material 6.14(a)
Owned Real Property 4.9(c)
Permitted Encumbrances 4.9(a)
9
Purchased Assets 2.1
Purchase Price 2.5
Purchased Records 2.1(x)
Real Property 4.9(d)
Retained Records 2.2(vi)
Scheduled Contracts 4.13(a)
Sellers Recitals
Sellers' Basket 8.5(a)
Sellers' Benefit Plans 6.12(b)(i)
Subsequent Material Contract 6.1(a)(iv)
TA Recitals
Termination Date 9.1(iv)
Update Notice 6.16
VSP 2.3(v)
ARTICLE II
TRANSFER OF PURCHASED ASSETS
2.1 ASSETS TO BE CONVEYED. Upon the terms and subject to the
conditions of this Agreement and in reliance upon the representations,
warranties and agreements herein after set forth, Sellers shall convey,
transfer, assign, sell and deliver to Buyer, and Buyer shall acquire, accept and
purchase at the Closing, (A) subject to the exclusions in Section 2.2 below, all
assets, properties, rights, interests, licenses, permits, contracts, causes of
action and claims whatsoever, wherever located, whether tangible or intangible,
real, personal or mixed, whether or not reflected on the books and records of
any of the Sellers, as the same shall exist as of the Effective Time
(collectively, "Assets"), which are utilized primarily in the Business, and (B)
all of the tangible Assets located at any Company Truckstop or at the
Distribution Center (all of the Assets identified in the foregoing clauses (A)
and (B) (other than the Excluded Assets) being collectively referred to as the
"Purchased Assets"), including, without limitation, and except as otherwise
specified in Section 2.2 below, all right, title and interest of any Seller in,
to and under:
(i) all real property and leases (whether capitalized or operating)
of, and other interests in, real property listed in Section 4.9(c) of the
Disclosure Schedule and all other real property and leases (whether
capitalized or operating) of, and any other interests in real property of
any Seller primarily held or primarily used in the Business, in each case
together with all of Sellers' interest in all buildings, fixtures, signage
and improvements erected thereon and appurtenances thereto and all of
Sellers'
10
rights, if any, to real property adjacent or
appurtenant thereto;
(ii) all machinery, equipment, furniture, office equipment,
communications equipment, computer hardware which is primarily used in the
Business (including, without limitation, computer hardware utilized in
connection with management information systems), vehicles (including
automobiles), storage tanks, spare and replacement parts and other
tangible property (and interests in any of the foregoing) of Sellers held
or used in the Business (including, without limitation, the 12th floor
computer hardware and the items listed in Schedule 2.1(ii) of the
Disclosure Schedule) (collectively, the "Equipment");
(iii) all items of inventory primarily relating to the Business
notwithstanding how classified in Sellers' financial records, including
all hydrocarbon inventories for use or sale (including gasoline, diesel
fuel, motor oil, automobile transmission fluid, anti freeze, and motor oil
and fuel additives) and all non-hydrocarbon inventories of food,
beverages, tires, batteries and accessories and other merchandise owned by
Sellers, including, without limitation, all raw materials,
work-in-process, finished goods, supplies, spare parts, samples and stores
whether at the Real Properties, including the Distribution Center, or in
transit to any Real Property (collectively, "Inven tory");
(iv) subject to Section 2.4, all Scheduled Contracts (other than
Employment Agreements and Employee Plans and Benefit Arrangements as
described in Section 2.2(vii) and (viii)) and, only to the extent
primarily relating to the Business, all other con tracts, agreements,
options, leases, licenses, sales and purchase orders, commitments and
other instruments of any kind, whether written or oral, and to which any
Seller is a party or beneficiary on the Closing Date or by which any of
the Purchased Assets are then bound (all of the foregoing to be assigned
to Buyer pursuant hereto or the benefits and burdens under which are to be
provided to Buyer pursuant to Section 2.4 hereof are hereinafter referred
to collectively as the "Contracts" and individually as a "Contract");
(v) to the extent primarily related to the Purchased Assets or the
Business, all prepaid charges and expenses, deposits and similar assets of
either Seller, as the case may be, including any such prepaid charges and
expenses with respect to leases and rentals
11
and utilities, but excluding all prepaid taxes except to the extent
provided otherwise in Section 10.12 of this Agreement;
(vi) all of Sellers' rights, claims, credits, causes of action or
rights of set-off against third parties to the extent primarily relating
to the Business or the Purchased Assets, whether liquidated or
unliquidated, fixed or contingent, including all rights of Sellers under
or pursuant to all warranties, representations and guarantees made by
suppliers, manufacturers, contractors and other third parties in
connection with products or services purchased by or furnished to Sellers
or any other Person for use in the Business or affecting any of the
Purchased Assets, but excluding in each case such rights, claims, credits,
causes of action or rights of set-off to the extent primarily relating to
the Excluded Assets;
(vii) all of Sellers' right, title and interest in each patent and
patent application, copyright, copy right application, publication,
trademark, trademark registration, trade name, xxxx, service xxxx, product
xxxx, logo and other commercial symbols identified in Section 2.1(vii) of
the Disclosure Schedule (including, without limitation, Truckstops of
America, Country Pride and Country Fresh and the other Assigned Trade
marks) and, to the extent that the following are primarily held or
primarily used in the conduct of the Business, all of Sellers' right,
title and interest in each patent and patent application, copyright, copy
right application, publication, trademark, trademark registration, trade
name, xxxx, 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 any Seller and primarily held or primarily used in the Business
or with regard to any of the Purchased Assets;
(viii) each process, invention, trade secret, formula and documentation
owned by any Seller or which any Seller has the right to use and assign to
Buyer which is primarily held or primarily used in the Business or with
regard to any of the Purchased Assets, but excluding any of the foregoing
which relate to the formulation or blending of the gasoline, petroleum
distillates or other petroleum products sold by the Business;
(ix) subject to Section 2.4, all transferable franchises, licenses,
permits or other authorizations
12
issued or granted by any Governmental Authority that are owned by, granted
to or held or used by either Seller and primarily utilized in the
Business, including the items listed in Sections 4.14(b)(i) and
4.14(a)(ii) of the Disclosure Schedule;
(x) to the extent reasonably available to Sellers, copies of all
books, records, files and papers of either Seller, whether in hard copy or
computer format, including books of account, invoices, engineer ing
information, sales and promotional literature, manuals and data, sales and
purchase correspondence, lists of present and former suppliers, lists of
present and former customers, and documentation developed or used for
accounting, marketing, engineering, manu facturing or any similar purpose,
but in each such case only to the extent related to the conduct of the
Business or with regard to any of the Purchased Assets at any time prior
to the Closing ("Purchased Records"), but excluding in each case the
Retained Records;
(xi) to the extent primarily utilized in the conduct of Business, all
computer software owned by Sellers, or licensed by Sellers and assignable
to Buyer, used to prepare or maintain the books and records of Sellers
relating to the Purchased Assets, including, without limitation, computer
software used in connection with accounts receivable aging, but excluding
in each case (A) software used by Central Staff Services and (B) software
proprietary to the BP Group and used in other units of the BP Group;
(xii) the Star Software;
(xiii) the TAFSI Shares; and
(xiv) other than the BP xxxx and shield and variants thereof, all
goodwill primarily associated with the Business or the Purchased Assets,
together with the right to represent to third parties that Buyer is the
successor to the Business.
2.2 EXCLUDED ASSETS. Notwithstanding anything contained in Section
2.1 (other than Section 2.1(B)), to the contrary, Sellers are not selling, and
Buyer is not purchas ing, pursuant to this Agreement, any of the following, all
of which shall be excluded from the Purchased Assets (here inafter referred to
collectively as the "Excluded Assets"):
(i) all of Sellers' cash and cash equivalents
(except for cash on hand at the Real Properties and any
13
deposits conveyed to Buyer pursuant to Section 2.1(v)), bank deposits and
marketable securities;
(ii) all accounts, accounts receivable, notes and notes receivable
existing as of the Effective Time whether or not the same arose out of
Sellers' operation of the Business and payable to Sellers or any of their
Affiliates;
(iii) any intercompany accounts;
(iv) the real property and all furniture and personal property located
thereon at the Business' Cleveland, Ohio headquarters office (the
"Headquarters");
(v) all of Sellers' patents, patent applications, copyright,
copyright applications, publications, trademarks, trademark registrations,
trade names, marks, service marks, product marks, logos or other
commercial symbols which are not conveyed to Buyer pursuant to Section
2.1(vii);
(vi) all books, records, correspondence and other information which
primarily relate to Excluded Assets or Excluded Liabilities (the "Retained
Records"); PROVIDED, HOWEVER, that Sellers agree to furnish copies of such
records (but only if such Retained Records were utilized in the conduct of
the Business) to Buyer if requested by Buyer for bona fide reasons
relating to the operation of the Business from and after the Closing Date;
and further provided that Seller shall not disclose to Buyer any
documents, records, or other information prepared in connection with the
filing of any federal income tax return or any state income or franchise
tax return;
(vii) all Employment Agreements, whether or not identified in Sections
4.13, 4.16, 4.17 and/or 4.18 of the Disclosure Schedule;
(viii) all Employee Plans and Benefit Arrangements, whether or not
identified in Section 4.13, 4.16, 4.17 and/or 4.18 of the Disclosure
Schedule;
(ix) to the extent not utilized primarily in the conduct of the
Business, any assets or property owned or leased by Central Staff Services
or other members of the BP Group not located at the Real Properties;
(x) tax refunds relating to Taxes paid by Sellers or their Affiliates;
14
(xi) all forecasts, financials and proprietary manuals (except manuals
used in the operation of the Business) prepared by or used by other
members of the BP Group, and copies of and subscriptions to third-party
reports which are not primarily used in the Business;
(xii) Sellers' insurance coverage and rights thereunder; and
(xiii) the BP xxxx and shield, and variants thereof.
2.3 ASSUMPTION OF SELLERS' LIABILITIES. From and after the Closing
Date, Buyer shall assume and agree to pay when due, perform and discharge (a)
the Liabilities of Sellers under each of the Contracts (including the Franchise
Guaranty) in effect on the Closing Date and assigned to Buyer pursuant to
Section 2.1(iv); (b) the liabilities of Sellers to be assumed by Buyer pursuant
to Section 2.4; (c) the Liabilities under the Assigned Permits to be performed
after the Closing Date; (d) those Liabilities which Buyer has expressly agreed
to pay pursuant to Section 10.12 hereof; and (e) the Warranty Liabilities
(subject to the rest of this Section 2.3, the liabilities described in the
foregoing clauses (a) through (e) are collectively referred to as the "Assumed
Liabilities"). Notwithstanding the foregoing, the Buyer is not assuming and
shall not be deemed to be assuming any of the following (collectively, the
"Excluded Liabilities"), all of which shall be excluded from and shall not
constitute Assumed Liabilities:
(i) except to the extent provided in Sec tion 10.12(b) relating to
certain prorations, all Tax liabilities of any and all kinds arising out
of Sellers' ownership, operation or possession of the Purchased Assets,
and any obligations of Sellers or any consolidated group of which any
Seller is or was a member with respect to any and all Taxes, including,
without limitation, any debts, liabilities, obligations or commitments for
any income, debts, liabilities, obligations or commitments for any Taxes
imposed upon any Seller or any consolidated group of which any Seller is
or was a member by the United States, any taxing authority outside the
United States or any state or local instrumentality or authority within
the United States, relating to, accrued for, applicable to or arising from
any period on, prior to or after the Closing Date;
(ii) any Liability of Sellers or any of their Affiliates for any
accounts payable, except for
15
liabilities which Buyer expressly agrees to pay pursuant to Section 10.12
hereof;
(iii) whether or not such agreements are assigned to or assumed by
Buyer hereunder, any Liability arising out of or resulting from any breach
by Sellers or any of their Affiliates of any Contract (including, without
limitation, any Scheduled Contract) or other agreement to which Sellers or
any of their Affiliates is a party, including Liabilities arising out of a
breach due to lack of notice to, or lack of consent from, a third party
for assignment of such contracts to Buyer;
(iv) any Liability of Sellers or any of their Affiliates arising out
of, or resulting from, any violation or alleged violation by Sellers or
any such Affiliate of any Applicable Law or in connection with or arising
out of the sale by Sellers or any such Affiliate of any product or the
provision of any service;
(v) any Liability of Sellers or any of their Affiliates or ERISA
Affiliates relating to any officer, director, employee (including any
Employee or Affected Employee), consultant or agent (or any beneficiary or
dependent of the foregoing) of any Seller or any Affiliate or ERISA
Affiliate of any Seller, including, without limitation, employment
agreements between any Seller and any of its employees (whether or not
such employment agreements are identified in Section 4.16 of the
Disclosure Schedule), workers' compensation, union contracts, medical or
sick pay liabilities (including, without limitation, for continuation
coverage mandated by law), pension or profit sharing liabilities or
severance liabilities (including, without limitation, under the WARN Act)
whether or not resulting from the transactions contemplated herein and any
other employee benefit offered by any Seller or any of its Affiliates or
ERISA Affiliates, including any liability for contributions or payments to
be made under or otherwise relating to any employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") whether or not covered by ERISA) or other plan,
agreement, commitment or arrangement maintained for an officer, director,
employee, consultant or agent of Sellers or any Affiliate or ERISA
Affiliate, whether or not identified in Section 4.13, 4.16, 4.17 and/or
4.18 of the Disclosure Schedule, including, without limitation, any
Liability relating to any Employee or Affected Employee arising out of or
relating to the BP America Inc. 1992 Voluntary Separation Program (the
"VSP"), whether or
16
not any benefit under the VSP is provided or to be provided on or after
the Effective Time; in no event shall Buyer assume any obligation for any
Liability of Sellers or any of their Affiliates relating to any Employee
or any Affected Employee that arises or accrues prior to such time, if
any, as such Affected Employee is employed by Buyer;
(vi) any Liability (A) of Sellers or any of their Affiliates resulting
from any Proceeding or (B) resulting from any Proceeding affecting any of
the Purchased Assets or the Business existing at or prior to the Effective
Time;
(vii) any Liability of Sellers under any Contract which is required to
be disclosed in the Disclosure Schedule and is not so disclosed if such
Contract (A) was not entered into in the ordinary course of business or
(B) would require the Buyer to make aggregate payments thereunder in
excess of $100,000;
(viii) any Liability of Sellers or any of their Affiliates under any
contract or agreement required to be disclosed, but not disclosed, in the
Disclosure Schedule providing for the purchase by Sellers or any of their
Affiliates of Outside Sourced Petroleum Products;
(ix) any brokerage or finder's fee payable by Sellers or any of their
Affiliates in connection with the transactions contemplated by this
Agreement;
(x) any Liability in respect of indebtedness for borrowed money
(including, without limitation, any Liability in respect of any industrial
revenue or development bonds);
(xi) any Liability under any agreement or commitment, other than the
Franchise Guaranty, pursuant to which any Seller or any of its Affiliates
guarantees or otherwise agrees to pay or becomes obligated to pay any
obligations of any Franchisees; and
(xii) those Liabilities under the Assigned Permits required to be
performed or satisfied before the Closing Date.
2.4 ASSIGNMENT OF CONTRACTS AND RIGHTS.
(a) Anything in this Agreement to the contrary
notwithstanding, this Agreement shall not constitute an agreement to assign any
Purchased Asset or any claim or
17
right or any benefit arising thereunder or resulting there from if an attempted
assignment thereof, without the consent of a third party thereto, would
constitute a breach or other contravention thereof, be ineffective with respect
to any party thereto or in any way materially and adversely affect the rights of
Sellers or, upon transfer, Buyer thereunder.
(b) Sellers agree that between the date hereof and the Closing
Date they will use their best efforts (other than paying consideration) to
obtain the necessary consents to the assignment of each Contract or other Pur
chased Asset which by its terms requires the consent of any of the other
contracting parties thereto to an assignment thereof to Buyer. If (x) such
consent is not obtained with respect to any such Contract or other Purchased
Asset and (y) notwithstanding the provisions of Section 7.2(g), Buyer elects to
consummate the Closing, each of the Sellers and Buyer will use their reasonable
best efforts to arrange for Buyer to obtain, to the extent practicable, the
claims, rights and benefits and assume the corresponding obligations thereunder
in accordance with this Agreement, including subcontracting, sub-licensing or
sub-leasing to Buyer, or under which Sellers shall enforce for the benefit of
Buyer, with Buyer assuming Sellers' obligations, any and all claims, rights and
benefits of Sellers against a third party thereto. Sellers will promptly pay to
Buyer when received all monies received by Sellers under any Contract or other
Purchased Asset or any claim, right or benefit arising thereunder that has been
assigned to Buyer or which Sellers have made an arrangement to the satisfaction
of Buyer pursuant to this Section 2.4. Buyer agrees to perform at its sole
expense all of the obligations of Sellers to be performed after the Closing Date
under any such Contract or other Purchased Asset which Buyer is receiving
pursuant to the provisions of this Section 2.4, and will promptly reimburse
Sellers for any reasonable payments or costs Sellers incur with respect to such
obligations.
2.5 PURCHASE PRICE FOR BP ASSETS. The purchase price for the
Purchased Assets (the "Purchase Price") shall be in the amount and shall be
payable as follows:
(i) at the Closing, Buyer shall pay to BP, by wire transfer of
immediately available funds, the sum of $92,000,000;
(ii) at the Closing, Buyer shall assume the Assumed Liabilities; and
(iii) Buyer shall make a payment to BP in respect of the Inventory, by
wire transfer of immediately
18
available funds, pursuant to and in accordance with Section 6.13.
2.6 ALLOCATION OF PURCHASE PRICE FOR PURCHASED ASSETS. Sellers and
Buyer hereby agree that (i) the allocation for tax purposes of the Purchase
Price shall be prepared and agreed to by Sellers and Buyer at the Closing if
practicable, but in no event more than 90 days after the Closing Date, (ii) each
party shall timely file Internal Revenue Service Form 8594 in accordance with
such agreed to allocation, and (iii) neither Buyer nor BP shall take a position
on any report, return, information return or other document (including any
related or supporting information) filed or required to be filed with any
federal, state or local taxing authority, before any taxing authority or in any
judicial proceeding that is in any way inconsistent with such allocation.
2.7 JOINT TECHNOLOGY. Sellers shall retain a paid-up, irrevocable
nonexclusive license to use any unpatented trade secrets, formulas or other
proprietary information conveyed to Buyer hereunder, to the extent such
information is used in other businesses (other than the Business) of Sellers or
the BP Group.
ARTICLE III
THE CLOSING
3.1 CLOSING. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall occur at the law offices of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 a.m. on October 28, 1993, provided that all conditions to the Closing set
forth in Article VII have been satisfied or waived by the party entitled to
waive the same, or such other time, date or place as is agreed to in writing by
the parties hereto. The date on which the Closing occurs is referred to herein
as the "Closing Date." At the Closing, the parties will deliver the documents
and take the actions specified below (in addition to any other deliveries and
actions specified elsewhere in this Agreement):
(a) Buyer will pay Sellers the Purchase Price in accordance
with Section 2.5 above by wire transfer to BP's account number 0000000 at
National City Bank, Cleveland, Ohio, or such other account as BP may in
writing specify;
(b) Buyer shall deliver to Sellers: (i) the
opinion of counsel specified in Section 7.3(d);
19
(ii) the certified resolutions specified in Section 7.3(e)(i); (iii) the
certificates specified in Paragraphs (a) and (b) of Section 7.3; (iv) a
recent certificate of good standing for Buyer from the State of Delaware;
and (v) an affidavit of non-foreign status pursuant to section 1445 of the
Internal Revenue Code of 1986, as amended (the "Code");
(c) Sellers shall deliver to Buyer: (i) the opinion of counsel
specified in Section 7.2(d); (ii) the certified resolutions specified in
Section 7.2(e)(i); (iii) the certificates specified in Paragraphs (a) and
(b) of Section 7.2; (iv) recent certificates of good standing for each
Seller from the states of Ohio and Delaware, respectively; and (v) limited
warranty deeds or their equivalent of each parcel of Owned Real Property;
and
(d) Buyer and Sellers will execute (i) the Assignment and
Assumption Agreement; (ii) each of the Ancillary Agreements not yet
executed as of the Closing Date; (iii) assignment and assumption in the
form of Exhibit L hereto for each Real Property Lease covering Leased Real
Property; and (iv) all tax and transfer returns required in connection
with the consummation of the transactions contemplated hereby.
The actions and deliveries listed in the foregoing paragraphs (a)
through (d) shall be deemed to occur simultaneously, and none shall be deemed
completed until all such actions and deliveries are completed. All transfers and
assumptions shall be deemed effective as of the Effective Time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby jointly and severally represent and warrant to Buyer
as follows:
4.1 CORPORATE EXISTENCE AND POWER. Each of BP, TA and TAFSI is a
corporation duly incorporated, validly existing and in good standing under the
laws of its state of incorporation, and has all corporate power and all material
governmental licenses, authorizations, consents and approvals required to carry
on the Business as now conducted and to own and operate the assets comprising
the Business. To the best of Sellers' knowledge, each Seller and TAFSI is duly
qualified to do business as a foreign corporation in each jurisdiction where
such qualification is necessary to
20
carry on the Business as now conducted. The list of jurisdictions in which the
Sellers and TAFSI are duly qualified to do business as a foreign corporation is
set forth in Section 4.1 of the Disclosure Schedule. Sellers have heretofore
delivered to Buyer true and complete copies of the Code of Regulation of BP,
Certificates of Incor poration of each of TA and TAFSI and bylaws of each of BP,
TA and TAFSI, each as currently in effect.
4.2 CORPORATE AUTHORIZATION. Each Seller has all requisite corporate
power and authority to enter into this Agreement and all other agreements to be
executed by each of BP, TA and TAFSI, as the case may be, in connection herewith
and to consummate the transactions contemplated hereby and thereby. This
Agreement and all other agreements to be executed by BP, TA or TAFSI, as the
case may be, in connection herewith have been (or upon execution will have been)
duly executed and delivered by BP, TA or TAFSI, as the case may be, have been
effectively authorized by all necessary action, corporate or otherwise, and
constitute (or upon execution will constitute) legal, valid and binding
obligations of BP, TA or TAFSI, as the case may be.
4.3 GOVERNMENTAL AUTHORIZATION.
(a) The execution, delivery and performance by BP, TA and
TAFSI of this Agreement require no action by, consent or approval of, or filing
with, any Governmental Authority other than:
(i) compliance with any applicable requirements of the
HSR Act;
(ii) compliance with any applicable requirements of the
bulk sales, bulk transfer or similar laws of the states in which the
Purchased Assets are located;
(iii) compliance with any applicable requirements of the
WARN Act;
(iv) approvals, consents and filings identified in
Section 4.3(a) of the Disclosure Schedule; and
(v) approvals, consents and filings the failure to
obtain or make will not have a Material Adverse Effect or a Material
Adverse Truckstop Effect.
(b) To the best of Sellers' knowledge, the execution,
delivery and performance by the Sellers of this
21
Agreement require no action by, consent or approval of, or filing with any
Governmental Authority other than as identi fied in clauses (i), (ii) or (iii)
of Section 4.3(a) or as identified in Section 4.3(a) of the Disclosure Schedule.
(c) To Sellers' knowledge, there are no facts relating to the
identity or circumstances of BP, TA or TAFSI that would prevent or materially
delay obtaining any of the authorizations referred to in Sections 4.3, 4.14 or
5.3.
4.4 NON-CONTRAVENTION. The execution, delivery and performance by
Sellers of this Agreement and all other agreements to be executed by Sellers in
connection herewith does not and will not (a) (i) contravene or conflict with
the Code of Regulation of BP, the Certificate of Incorporation of TA, the
Certificate of Incorporation of TAFSI, or bylaws of each of BP, TA and TAFSI;
(ii) assuming compliance with the HSR Act and the WARN Act, contravene or
conflict with or constitute a violation of any provision of any Applicable Law
binding upon or applicable to BP, TA or TAFSI, the Business or any of the assets
comprising the Business, other than any such contravention, conflict or
violation which will not have and could not reasonably be expected to have a
Material Adverse Effect or a Material Adverse Truckstop Effect; and (iii)
assuming compliance with the HSR Act and receipt of the consents identified in
Section 4.4 of the Disclosure Schedule, constitute a default under, conflict
with, violate, breach or give rise to any right of termination, cancellation or
acceleration of, or to a loss of any benefit to which BP, TA or TAFSI is
entitled, under any material Contract or any material Permit or similar
authorization relating to the Business or included in any of the Purchased
Assets or by which the Business or any of the Purchased Assets may be bound, or,
to the best of Seller's knowledge, any Contract or Permit or (b) result in the
creation or imposition of any Lien on any such asset, other than for any
applicable transfer or sales Taxes.
4.5 FINANCIAL STATEMENTS. Section 4.5 of the Disclosure Schedule
sets forth (i) pro forma balance sheets of the Business as of December 31, 1989,
December 31, 1990, December 31, 1991, and December 31, 1992, and pro forma
statements of operations before income taxes and pro forma disclosures of
capital expenditures and diesel and gasoline sales by volume of the Business for
each of the years ended December 31, 1990, December 31, 1991, and December 31,
1992 (the "Annual Financial Statements") and (ii) a pro forma balance sheet of
the Business as of June 30, 1993 and a pro forma statement of operations before
income taxes and pro forma disclosures of capital expenditures and diesel and
gasoline sales by volume of the Business for the six months
22
ended June 30, 1993 (the "Interim Financial Statements" and together with the
Annual Financial Statements, the "Financial Statements"). The Financial
Statements (i) were prepared in all material respects in accordance with the
books and records of Sellers subject to the assumptions, exceptions and
limitations described therein; (ii) were prepared in accordance with the
Accounting Principles applied on a consistent basis subject to the assumptions,
exceptions and limitations described therein; (iii) fairly present the financial
condition and the results of operations of the Business as at the relevant dates
thereof and for the periods covered thereby in accordance with the Accounting
Principles applied on a consistent basis subject to the assumptions, exceptions
and limitations described therein; (iv) fairly present in all materials respects
the revenues, cost of goods sold and direct operating expenses actually incurred
by the Business during the periods covered thereby in accordance with the
Accounting Principles applied on a consistent basis subject to the assumptions,
exceptions and limitations described therein; and (v) do not contain any
material items of special or nonrecurring income except as otherwise stated
therein. Except as otherwise stated in the Financial Statements, no improper
accounting practices have been used for the purpose of not reflecting or
incorrectly reflecting in the Financial Statements any material properties,
assets, revenues or expenses. Upon the delivery of any financial statements by
BP to Buyer pursuant to Section 6.15 hereof, the definition of Financial State
ments shall be deemed to include the financial statements delivered to Buyer by
Sellers pursuant to Section 6.15 and the representations made by BP in this
Section 4.5 shall encompass the financial statements delivered pursuant to
Section 6.15.
4.6 NO UNDISCLOSED LIABILITIES. Since June 30, 1993, except (i) for
the transactions specifically contem plated by this Agreement and (ii) as set
forth in Section 4.6 of the Disclosure Schedule, no material Liability, (or to
the best of Seller's knowledge, any Liability), which is an Assumed Liability
was incurred other than in the ordinary course of business.
4.7 ABSENCE OF CERTAIN CHANGES. Since June 30, 1993, the Business
has been conducted substantially in the ordinary course, and there has not been:
(a) except as set forth in Section 4.7(a) of the Disclosure
Schedule, any event, occurrence, development, state of facts or change in
the Business or any of the Purchased Assets which has had either alone or
together with all such events, occurrences, developments, states of facts
or changes, a Material
23
Adverse Effect or a Material Adverse Truckstop Effect, including, however,
only those events, occurrences, facts or changes specific to the Business,
and excluding all events, occurrences, or changes affecting the truckstop
industry generally or industries generally, including, without limitation,
changes in tax laws or regulatory regimes, the truckstop business climate
or the general business climate.
(b) except as set forth in Section 4.7(b) of the Disclosure
Schedule, any material transaction or commitment made, or any Contract
entered into, by BP, TA or TAFSI, as the case may be, relating to the
Business or any of the Purchased Assets (including the acquisition or
disposition of any material asset of the Business), or any material
waiver, amendment, termina tion or cancellation of any Contract or Permit
by BP, TA or TAFSI, or any material relinquishment of any rights
thereunder by BP, TA or TAFSI, or of any other material right or debt owed
to BP, TA or TAFSI relating to the Business or any Purchased Asset, other
than (i) in the ordinary course of business or (ii) as expressly permitted
by this Agreement;
(c) except as set forth in Schedule 4.7(c) of the Disclosure
Schedule, any material change (i) in the compensation or benefits (other
than for pay or benefit changes in the ordinary course) of any employee
with an annual base pay in excess of $75,000 or (ii) the termination or
re-assignment of any employee with an annual base pay in excess of
$75,000;
(d) any change by BP, TA or TAFSI in the accounting principles
or methods or practices applied to the Business or in the manner it keeps
the books and records of the Business;
(e) any labor dispute (other than routine individual
grievances), lockouts, strikes, slowdowns, work stoppages or threats
thereof by or with respect to any such employees or any activity or
proceeding by a labor union or representative thereof to organize any
employees of BP, TA or TAFSI involved in the Business;
(f) any payment, discharge or satisfaction of any material
Liabilities, (or to the best of Sellers' knowledge, any Liability) of BP,
TA or TAFSI related to the Business, other than payments, dis charges or
satisfactions in the ordinary course of business; or
24
(g) any material waiver by Sellers or material amendment or
any termination or cancellation of any Contract which is required to be
disclosed in Section 4.13(c) of the Disclosure Schedule or any material
relinquishment, amendment or modification of any rights thereunder.
4.8 NO BROKERAGE FEES. No broker or finder, other than The First
Boston Corporation, has acted for any Seller or any Affiliates of any Seller in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder, other than The First Boston Corporation, is entitled to any
brokerage or finders' fees in respect of such transactions based in any way on
agreements, arrangements or understandings made by or on behalf of BP or any of
BP's Affiliates.
4.9 PROPERTIES; LEASES; TANGIBLE ASSETS.
(a) Each of BP, TA and TAFSI owns and has good and marketable
title to or, in the case of leased properties, a good leasehold interest in, all
of its assets and properties, including all such assets reflected in the balance
sheet as of December 31, 1992 or acquired thereafter, except those assets
disposed of in the ordinary course of business after such date. BP, TA or TAFSI,
as the case may be, as of the Closing shall hold title to each such property and
assets free and clear of all Liens, adverse claims, easements, rights of way,
servitudes, encumbrance and other survey defects or any other rights of others
or other adverse interests or title, including leases, chattel mortgages,
conditional sales contracts, rights of first refusal, options to purchase,
collateral security arrangements and other title or interest retention
arrangements (collectively, "Encumbrances"), except for (i) Permitted Liens,
(ii) Encumbrances set forth on Section 4.9(a) of the Disclosure Schedule, (iii)
with respect to each parcel of Real Property or each material item of Personal
Property, Encumbrances that, individually or in the aggregate, do not and will
not (A) materially interfere with the use, occupancy or operation of such item
of Personal Property or parcel of Real Property as currently used, occupied and
operated, (B) materially reduce the fair market value of such parcel of Real
Property below the fair market value such parcel of Real Property would have had
but for such Encumbrances (it being understood that the fair market value of
such parcel of Real Property as used in this clause (B) means the fair market
value of such parcel of Real Property as a truckstop as it is currently
operated) or (C) result in any material increase over the current cost of
operating, occupying or owning (or leasing) such parcel of Real Property, (iv)
mechanics liens and other monetary liens
25
of an ascertainable amount which First American Title Insurance Company, or such
other title insurance company Buyer deems acceptable, will insure against as of
the Closing and (v) finance or mortgage liens created solely by any lessor of
any of the Leased Real Property (as hereinafter defined), provided that the
applicable Leases are not in violation thereof (or that Sellers obtain written
waivers to such violations) and that the holder of any such lien cannot disturb
the rights of the tenant under any Lease set forth in Section 4.9(a)-1 of the
Disclosure Schedule if such lien is foreclosed on, and finance or mortgage liens
created solely by any "CAT scale" sublessee of any of the Leased Real Property
or by any "CAT scale" lessee of any of the Owned Real Property (as hereinafter
defined), provided that Sellers shall cooperate with Buyer and Buyer's lenders
to cause the holders of such liens to enter into agreements with Buyer and
Buyer's lenders satisfactory to Buyer's lenders. The Encumbrances described by
clauses (i), (ii), (iii), (iv) and (v) of the foregoing sentence are
collectively referred to herein as the "Permitted Encum brances." Each parcel of
Real Property as currently used, occupied and operated does not breach in any
material respect any applicable zoning or building restrictions.
(b) Except as disclosed in Section 4.9(b) of the Disclosure
Schedule, and except for (i) Purchased Assets which did not have an original
acquisition cost in excess of $10,000 and (ii) any exceptions to the following
which will not have, or are not reasonably likely to have, a Material Adverse
Effect or Material Adverse Truckstop Effect, all tangible properties and assets
included in the Purchased Assets are in operating condition and repair and are
adequate for the uses to which they are put, and no such properties or assets
necessary for the conduct of the Business in substantially the same manner as
such business has heretofore been conducted are in need of material replacement,
maintenance or repair, normal wear and tear excepted.
(c) Section 4.9(c) of the Disclosure Schedule sets forth a
true and complete list of all Purchased Assets that either (a) constitute real
property owned by BP, TA or TAFSI, as the case may be, and are used in the
Business or (b) constitute real property leased by BP, TA or TAFSI, as the case
may be, pursuant to leases in connection with so-called "industrial revenue
bond" or "industrial development bond" financings, and are utilized in the
Business (such property, together with all recorded easements and licenses
benefiting such property, collec tively referred to hereinafter as the "Owned
Real Property"), such list setting forth the location of each parcel of Owned
Real Property, the record owner thereof, the
26
approximate acreage and a brief description of the nature of the activities of
BP, TA or TAFSI, as the case may be, on such Owned Real Property. The Owned Real
Property described by clause (b) of the immediately preceding sentence shall be
deemed, for purposes of all provisions herein, to be assets owned by BP, TA or
TAFSI, as the case may be.
(d) Section 4.9(d)(i) of the Disclosure Schedule sets forth
(by date and the parties thereto) all personal property leases with annual
rental payments in excess of $10,000 and all real property leases relating to
real property used by BP, TA or TAFSI as lessee (such property, collectively
referred to hereinafter as the "Leased Real Property"; the Leased Real Property
and Owned Real Property being collectively referred to as the "Real Property")
or to which BP, TA or TAFSI is a party or by which BP, TA or TAFSI is bound as
lessor (including all cases in which BP, TA or TAFSI is both the lessor or
lessee of such personal property or real property), excluding Vendor Outleases,
which were entered into in connection with the Business (the "Leases"), and
indicating where appropriate those leases which have been recorded for tax,
protection of title or interest, or other purposes. Except as disclosed in
Section 4.9(d)(ii) of the Disclosure Schedule, all Leases to which BP, TA or
TAFSI, as the case may be, is a party or by which it is bound may be assigned,
transferred and conveyed to Buyer without default, penalty or modification
thereof.
(e) Except as set forth in Section 4.9(e) of the Disclosure
Schedule, with respect to any Real Property, there exists no applicable
restrictive covenant, zoning ordinance, building code, use or occupancy
restriction, land use restriction, fire, subdivision, health or other law
applicable to real property, or any violation of any such ordinance, code,
restriction or law, or any condemnation action or proceeding of any Governmental
Authority, that prohibits the current use of such Real Property in the Business,
other than for items which can and will be corrected prior to the Closing by
notice to or filing with a governmental or private party. The Real Property is
conveyed to Buyer subject to the following: (i) real estate taxes and
assessments, both general and special, not then due and payable; (ii) building
and zoning ordinances, laws, regulations and restrictions by municipal or other
governmental authorities, but only to the extent not in violation of any
representation or warranty contained herein; and (iii) Permitted Encumbrances.
(f) No condemnation proceeding is pending, or to Sellers'
knowledge threatened, which would preclude or materially impair the use of any
Real Property for the uses
27
for which it is currently being used or is anticipated by BP, TA or TAFSI to be
used. Except as set forth in Section 4.9(f) of the Disclosure Schedule, to
Seller's knowledge there is no existing or proposed plan to widen, modify or
realign any street or highway contiguous to any of the Real Property which would
materially impair the current use or value of any of the Real Property.
(g) Section 4.9(g) of the Disclosure Sched ule sets forth a
true, complete and correct list of all computer hardware with a net book value
in excess of $5,000 used primarily in the Business, other than Excluded Assets.
(h) Each parcel of Real Property which is a truckstop facility
or a distribution center has direct access by ownership, easement or otherwise
to a public street or highway and such access is adequate for the current use of
such parcel in the Business. No Real Property is dependent for its access,
operation or utility on any land, building or other improvement not included in
the Real Property.
(i) Except as set forth in Section 4.9(i) of the Disclosure
Schedule, there is no work being done at or materials being supplied to any
parcel of Real Property as of the date hereof other than routine maintenance
projects.
4.10 SUFFICIENCY OF AND TITLE TO THE TRANSFERRED ASSETS. Upon
consummation of the transactions contemplated by this Agreement, Buyer will have
acquired (directly or indirectly by the acquisition of the TAFSI Shares) free
and clear of all Liens and Encumbrances (other than Permitted Encumbrances), all
of the assets and properties used primarily in the Business and all of the
tangible assets and properties located at any Company Truckstop or the Distri
bution Center, including all Purchased Assets and 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 is a
going concern and the transfer of the Purchased Assets to the Buyer pursuant to
this Agreement will enable the Buyer to operate the Business substantially as
Sellers operated it immediately prior to the Closing except that: (i) except as
otherwise specified in the Ancillary Agreements, Buyer shall replace all Central
Staff Services previously provided by Sellers and its Affiliates in support of
the Business; (ii) the absence of Required Contractual Consents or Required
Permit Approvals may have effects; (iii) the Business shall not benefit from
travel, insurance, and other discount purchase programs of the BP Group or other
BP units; (iv) as a consequence of Buyer's election, if made by Buyer, not to
hire all Employees; and (v) the difference in
28
financial strength, market position and reputation between BP and Buyer may have
effects.
4.11 AFFILIATES. The Business is conducted exclusively by BP, TA and
TAFSI and not by any of their Affiliates and no assets or properties primarily
used in the Business are owned or leased by any Affiliate of BP, TA or TAFSI, as
the case may be, other than for assets associated with Central Staff Services or
BP Group benefit plans.
4.12 LITIGATION.
(a) Except as disclosed in Section 4.12(a) of the Disclosure
Schedule and except for any of the following that have not had and are not
likely to have a Material Adverse Effect or a Material Adverse Truckstop Effect:
(i) there are no Proceedings pending or, to Sellers' knowledge, threatened,
against or affecting the Business or any of the Purchased Assets; (ii) there are
no existing judgments affecting in any respect any of the Purchased Assets or
the Business; or (iii) there are no existing orders or decrees of any
Governmental Authority specifically applicable to any of the Purchased Assets or
the Business.
(b) Except as set forth in Section 4.12(b) of the Disclosure
Schedule, there are no Proceedings pending or, to Sellers' knowledge,
threatened, against BP, TA or TAFSI, the Business or the Purchased Assets which
seek to enjoin or rescind the transactions contemplated by this Agreement or
otherwise prevent BP, TA or TAFSI from complying with the terms and provisions
of this Agreement.
4.13 CONTRACTS.
(a) Section 4.13(a) of the Disclosure Schedule, together with
Sections 4.9, 4.16 and 4.18 of the Disclosure Schedule, sets forth an accurate
and complete list of all of the following contracts, commitments and obligations
(whether written or oral) (all of the foregoing, "Agreements") of any Seller
which primarily relate to the Business or any of the Purchased Assets: (i)
Agreements relating to the Business which by their terms obligate any Seller to
make payments in any year in excess of $100,000 or to make aggregate payments in
excess of $200,000; (ii) employment or consulting Agreements which obligate
Seller to make payments in any year in excess of $20,000 or to make aggregate
payments in excess of $50,000; (iii) collective bargaining Agreements or other
Agreements with any labor union; (iv) any Agreement relating to the Business
which was not entered into in the ordinary course; (v) all leases of Personal
Property requiring payments in any year in excess
29
of $10,000 or aggregate payments in excess of $50,000; (vi) any Real Property
Leases; (vii) all Agreements providing for the purchase of Outside Source
Petroleum Products (other than Agreements providing for the purchase of heating
oil involving less than $55,000); (viii) all Agreements (other than agreements
relating solely to copyrights and copyright applications and registrations)
relating to any Intellectual Property which is identified in Section 2.1(vii) of
the Disclosure Schedule; (ix) any Agreement pursuant to which any Seller has
guaranteed any obligations of any Franchisee; (x) any Agreement between any
Seller and any Franchisee; and (xi) any Agreements pursuant to which a motel or
hotel or fast food franchise or any other business is in operation on any of the
Real Properties, other than Vendor Outleases. (The Agreements set forth in
Section 4.13(a) of the Disclosure Schedule referred to as the "Scheduled
Contracts").
(b) Except as disclosed in Section 4.13(b)(i) of the
Disclosure Schedule, there exists no breach or default under any of the
Contracts (including the Scheduled Contracts), except breaches or defaults which
do not and will not have a Material Adverse Effect or Material Adverse Truckstop
Effect. Except as disclosed in Schedule 4.13(b)(ii) of the Disclosure Schedule,
to Sellers' knowledge, there exists no breach or default under any of the
Contracts (including the Scheduled Contracts). Except as disclosed in Section
4.13(b)(iii) of the Disclosure Schedule, all Contracts (including the Scheduled
Contracts) may be assigned, transferred and conveyed to Buyer without default,
penalty or modification thereof, except for any default, penalty, or
modification which will not have a Material Adverse Effect or a Material Adverse
Truckstop Effect. Except as disclosed in Section 4.13(b)(iv) of the Disclosure
Schedule, to the best of Sellers' knowledge, all of the Contracts (including the
Scheduled Contracts) may be assigned, transferred and conveyed to Buyer without
default, penalty or modification thereof.
4.14 PERMITS.
(a) Section 4.14(a)(i) of the Disclosure Schedule sets forth a
list of all Permits, the absence or loss of which would have a Material Adverse
Effect or a Material Adverse Truckstop Effect (the "Material Permits"),
including, without limitation, (i) all such material permits and approvals
relating to the transportation, storage or sale of any petroleum product or the
discharge of by-products or waste material into a public waste discharge system
and (ii) all material registrations, approvals and exemptions required under any
state or federal franchise, business opportunity or similar law and (iii) all
30
certificates of occupancy and completion in connection with any Real Property.
To the best of Sellers' knowledge, Section 4.14(a)(ii) of the Disclosure
Schedule sets forth a list of all Permits.
(b) Section 4.14(b)(i) of the Disclosure Schedule lists each
material governmental or other registration, filing, application, notice,
transfer, consent, approval, order, qualification and waiver (each, a "Material
Required Permit Approval") required under Applicable Law to be obtained by BP,
TA, TAFSI or Buyer by virtue of the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby to avoid the loss of
any Material Permit. To the best of Sellers' knowledge, Section 4.14(b)(ii)
lists each Required Permit Approval. Except as set forth in Section 4.14(b)(iii)
of the Disclosure Schedule, each Material Permit is valid and in full force and
effect in all material respects and, assuming the related Required Permit
Approvals have been obtained prior to the Closing Date, are, or will be,
transferable by BP and TA, and none of the Permits will, assuming the related
Required Permit Approvals have been obtained prior to the Closing Date, be
terminated or become terminable or impaired in any respect as a result of the
transactions contemplated hereby. To the best of Sellers' knowledge, except as
set forth in Section 4.14(b)(iv) of the Disclosure Schedule, each Permit is
valid and in full force and effect in all material respects and, assuming the
related Required Permit Approvals have been obtained prior to the Closing Date,
are, or will be, transferable by BP and TA, and none of the Permits will,
assuming the related Required Permit Approvals have been obtained prior to the
Closing Date, be terminated or become terminable or impaired in any respect as a
result of the transactions contemplated hereby.
4.15 COMPLIANCE WITH LAWS. Except as set forth in Section 4.15
of the Disclosure Schedule, the ownership and operation of the Business and the
ownership, use and condition of the Purchased Assets by Seller do not violate or
infringe any Applicable Law, or any order, writ, injunction or decree of any
Governmental Authority in any material respect. Neither BP, TA nor TAFSI has
received in the last six months, any written notification from any Governmental
Authority having jurisdiction over the Business or the Purchased Assets
affecting or purporting to restrict the operation of the Business or the use of
the Purchased Assets in any material respect or alleging any material violation
of Applicable Law relating to the foregoing.
4.16 EMPLOYMENT AND SIMILAR AGREEMENTS: OBLIGATIONS UPON
CHANGE IN CONTROL. Except as set forth in
31
Section 4.16 or 4.18 of the Disclosure Schedule, there is no employment,
consulting, severance pay, continuation pay, termination pay, indemnification
agreement or other agreement (whether or not subject to ERISA) with any Seller
(or any Affiliate or any ERISA Affiliate of any Seller) and any Employee of the
Business (hereinafter referred to collectively as the "Employment Agreements")
and, except as set forth in Section 4.16 of the Disclosure Schedule, no such
scheduled agreement provides for an increase in any such Employee's
compensation, benefits and rights provided on the date hereof if any such
Employee were to accept or refuse an employment offer from Buyer. Sellers have,
or will have by the Closing Date, provided Buyer copies of all such agreements
which are to Seller's knowledge, correct and complete.
4.17 LABOR AND EMPLOYMENT MATTERS. Except as set forth in
Section 4.16, 4.17 and/or 4.18 of the Disclosure Schedule with respect to the
Business: (a) Sellers have not, and to Sellers' knowledge no Affiliate or ERISA
Affiliate of any Seller has, engaged in any unfair labor practice; (b) there is
no labor strike, dispute, slowdown or stoppage pending or, to any Seller's
knowledge, threatened against any Seller or Affiliate or ERISA Affiliate of any
Seller or directly affecting the Business; (c) no union representation question
or, to any Sellers' knowledge, union or other organizational activity that would
be subject to the National Labor Relations Act exists respecting any employee;
(d) no collective bargaining agreement exists which is binding on any Seller or
Affiliate or ERISA Affiliate of any Seller; (e) none of the Sellers or Affiliate
or ERISA Affiliate of any Seller has experienced any material work stoppage or
other material labor difficulties; (f) none of the Sellers or Affiliate or ERISA
Affiliate of any Seller are delinquent in any material respect in payments to
any of their employees; (g) none of the Sellers or Affiliate or any ERISA
Affiliate of any Seller has received any notice of any labor, employment or
civil rights dispute or grievance or any other unfair labor practice proceeding
with respect to claims of, or obligations to, any of the employees of the
Business; and (h) to the best of Sellers' knowledge, there are no threatened
material labor, employment or civil rights dispute or grievance, or any other
unfair labor proceeding with respect to claims of, obligations to, any of the
employees of the Business.
4.18 EMPLOYEE BENEFIT PLANS.
(a) Section 4.18(a) of the Disclosure Schedule lists each
"employee benefit plan", as such term is defined in Section 3(3) of ERISA, which
(i) is subject to
32
any provision of ERISA, and (ii) currently covers any Employee of the Business
(hereinafter referred to collectively as the "ERISA Plans"). With respect to
each ERISA Plan, Sellers have, or will have by the Closing Date, furnished to
Buyer the most recent summary plan description of such plan.
(b) Section 4.18(b) of the Disclosure Schedule lists each
material written plan or arrangement providing for health, medical, life or
other welfare benefit coverage (including insured, self-insured or other
arrangement), disability benefits, severance pay, termination pay, supplemental
unemployment benefits, vacation benefits, retirement benefits or providing for
deferred compensation, profit-sharing, bonuses, stock options, stock
appreciation or other forms of incentive compensation or post-retirement
insurance, compensation or benefits and any other employee benefit plan,
program, agreement, policy or arrangement which (i) is not disclosed pursuant to
Section 4.18(a) above, (ii) is or has been entered into, maintained,
administered or contributed to, as the case may be, by any Seller or Affiliate
or ERISA Affiliate of any Seller, and (iii) currently covers any Employee of the
Business. Such plans and arrangements described above are hereinafter referred
to as the "Benefit Arrangements." Sellers have, or will have by the Closing
Date, furnished Buyer a copy and/or description of each Benefit Arrangement.
(c) No ERISA Plan or Benefit Arrangement is a "multiemployer
plan" (as such term is defined in Section 4001(a)(3) of ERISA).
(d) Section 4.18(d) of the Disclosure Schedule sets forth a
list of each state in which any Employee is covered by any workers' compensation
law.
(e) Neither any Seller nor any Affiliate or ERISA Affiliate of
any Seller has incurred any liability or obligation under the WARN Act with
respect to the Business. Section 4.18(e) of the Disclosure Schedule lists
separately for each Company Truckstop, and each other site of employ ment (or
each facility or operating unit within each site of employment) at which there
is employed an Employee involved in the Business: (i) a list of active employees
on July 31, 1993; and (ii) by means of the monthly report specified in Section
6.1(b)(v), to the best of Seller's knowledge, a list of employees whose
employment has terminated since July 31, 1993 at each such location and the date
of each such termination.
33
4.19 INTELLECTUAL PROPERTY. There is listed in Section 4.19(i) of
the Disclosure Schedule (i) an identification of each copyright, copyright
registration, copyright application, patent, patent registration, patent
application, written invention disclosure, trademark, trademark registration,
trademark application, trade name, xxxx, service xxxx, publication, logo and
other commercial symbol (together with any and all federal or state registration
numbers, offices of registration and dates of such registration) held or
employed by BP, TA or TAFSI primarily in the Business other than any of the
foregoing relating primarily to the formulation or blending of the gasoline,
petroleum distillates or other petroleum products sold by the Business
("Intellectual Property") and (ii) a true and complete list of all licenses or
similar agreement or arrangements to which BP, TA or TAFSI is a party either as
licensee or licensor for each such item of Intellectual Property.
Notwithstanding the foregoing, Sellers need not list in Section 4.19(i) of the
Disclosure Schedule any generally available commercial software, copyrights or
publicly available publications. Except as indicated in Section 4.19(ii) of the
Disclosure Schedule:
(a) During the period the Business has been owned by the BP
Group, there have not been any Proceedings to which either Sellers or
TAFSI is or has been a party concerning the infringement or misappro
priation of any intellectual property rights of any third person or any
Proceedings otherwise concerning BP's, TA's or TAFSI's ownership interest
in any of such items of Intellectual Property, nor is any such Pro ceeding
threatened in writing;
(b) BP, TA or TAFSI, as applicable, has the right and
authority to use said items of Intellectual Property in connection with
the Business in the manner presently conducted and, subject to obtaining
the Required Consents, to convey such right and authority to Buyer, and
such use does not conflict with, infringe upon or violate any intellectual
property rights, including any patent, copyright, trademark or trade name,
of any other Person:
(i) in any respect which will or is reasonably likely to
have a Material Adverse Effect or a Material Adverse Truckstop
Effect; or
(ii) to the best of Seller's knowledge, in any respect;
and
34
(c) there are no outstanding, or to Sellers' knowledge any
threatened in writing, disputes or disagreements with respect to any
licenses or similar agreements or arrangements described in Section 4.19
of the Disclosure Schedule; and
(d) pursuant to this Agreement, concurrently with the Closing
and subject to obtaining the Required Consents, Buyer will be vested with
all rights, title and interest and authority previously held by Sellers to
use all of the Intellectual Property.
4.20 CUSTOMERS. Except as set forth in Sec tion 4.20 of the
Disclosure Schedule, during the calendar year ended December 31, 1992, not more
than five percent (5%) of the total revenues of the Business was attributable to
any single customer.
4.21 FRANCHISEE RELATIONSHIPS.
(a) Section 4.21(a) of the Disclosure Schedule sets forth a
copy of a current generic Uniform Franchise Offering Circular for the Business.
Variations required by or for specific states are not included in the generic
circular.
(b) Since December 31, 1992, neither of any Sellers nor TAFSI
has received any oral or written communi cations from any Governmental Authority
in any jurisdiction in which the Sellers have not filed a franchise offering
circular concerning the applicability of any franchising laws to the Business.
Section 4.21(b) of the Disclosure Schedule identifies each state in which any
Seller has filed a franchise offering circular relating to the Business.
4.22 TAFSI.
(a) TAFSI does not directly or indirectly own any interest
in any other Person.
(b) TAFSI is authorized to issue 1,000 shares of common stock,
par value $1 per share, of which 100 shares are issued and outstanding. All of
the TAFSI Shares are owned by TA and are duly authorized, validly issued, fully
paid and non-assessable. No other class of capital stock or other ownership
interests of TAFSI is authorized or outstanding.
(c) There is no outstanding right, subscription, warrant,
call, unsatisfied pre-emptive right, option or other agreement of any kind to
purchase or otherwise to receive any of the outstanding, authorized but
35
unissued, unauthorized or treasury shares of the capital stock or any other
security of TAFSI and there is no outstanding security of any kind convertible
into any such capital stock.
(d) TA owns beneficially and of record, free and clear of any
Lien, the TAFSI Shares, and TA will convey to the Buyer good and valid title
thereto, free and clear of any Lien.
(e) All returns, reports and other forms related to Taxes
required to be filed on or before the Closing Date with respect to the Business,
activities or assets of TAFSI have been duly filed or will be duly filed on or
before the Closing Date, in accordance with all Applicable Laws (after taking
into account extensions duly obtained) and all Taxes shown to be due on such
returns, reports and forms have been paid, provided for in reserves, or properly
protested. Except as set forth on Section 4.22 of the Disclosure Schedule, no
audit of any such return, report or form is pending or, to the knowledge of
TAFSI or the Seller, threatened. Section 4.22 of the Disclosure Schedule sets
forth the status of any audit that is pending, including the amounts of any
deficiencies and additions to Tax indicated on any notices, proposed deficiency
or statutory notices of deficiency that may have been issued in connection
therewith and, except as set forth on Section 4.22 of the Disclosure Schedule,
all of such deficiency or additions to Tax have been paid.
4.23 DISCLAIMER. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT,
SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WITH RESPECT
TO THEMSELVES, THE PURCHASED ASSETS, THE INVENTORY OR OTHERWISE. SELLERS HEREBY
DISCLAIM ANY IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTHING IN
THIS SECTION 4.23 OR ELSEWHERE IN THIS AGREEMENT OR IN THE ANCILLARY AGREEMENTS
SHALL LIMIT OR IMPAIR IN ANY MANNER WHATSOEVER ANY OF SELLERS' REPRESENTATIONS
AND WARRANTIES MADE ELSEWHERE IN THIS AGREEMENT, EACH OF WHICH THE BUYER IS
ENTITLED TO RELY UPON. SELLERS' OFFERING MEMORANDUM AND ALL INFORMATION
CONTAINED THEREIN ARE SUPERSEDED BY THIS AGREE MENT.
36
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers that:
5.1 ORGANIZATION AND EXISTENCE. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware.
5.2 CORPORATE AUTHORIZATION. Buyer has all requisite corporate power
and authority to enter into this Agreement and all other agreements to be
executed by Buyer in connection herewith and to consummate the transactions
contemplated hereby and thereby. This Agreement and all other agreements herein
contemplated to be executed in connection herewith have been (or upon execution
will have been) duly executed and delivered by Buyer, have been effectively
authorized by all necessary corporate action, and constitute (or upon execution
will constitute) legal, valid and binding obligations of Buyer.
5.3 GOVERNMENTAL AUTHORIZATION.
(a) The execution, delivery and performance by Buyer of this
Agreement require no action by, consent or approval of, or filing with, any
governmental body, agency, official or authority other than:
(i) compliance with any applicable
requirements of the HSR Act; and
(ii) compliance with any applicable requirements of the
bulk sales, bulk transfer or similar laws of the states in which the
Purchased Assets are located;
(iii) the approvals necessary to transfer the Permits
from the Sellers to the Buyer; and
(iv) compliance with state franchise
registration/disclosure laws.
(b) To Buyer's knowledge, there are no facts relating to the
identity or circumstances of Buyer that would prevent or materially delay any of
the authorizations referred to in Section 4.4 or this Section 5.3.
5.4 NON-CONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement does not and will
37
not (i) contravene or conflict with the certificate of incorporation or bylaws
of Buyer, (ii) assuming compliance with the matters referred to in Section 5.3,
contravene or conflict with or constitute a violation of any provision of any
Applicable Law binding upon or applicable to Buyer, (iii) constitute a default
under or give rise to any right of termination, cancellation or acceleration of
any right or obligation of Buyer or to a loss of any benefit to which Buyer is
entitled under any provision of any agreement, contract or other instrument
binding upon Buyer or any license, franchise, permit or other similar
authorization held by Buyer, except in the case of clauses (ii) and (iii) for
any such contravention, conflict, violation, default, termination, cancellation,
acceleration or loss that would not have a material adverse effect on the
condition (financial or otherwise), business, assets or results of operations of
Buyer.
5.5 NO BROKERAGE FEES. No broker or finder has acted for Buyer in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder is entitled to any brokerage or finders' fees in respect of
such transactions based in any way on agreements, arrangements or understandings
made by or on behalf of Buyer.
5.6 LITIGATION. There are no material Proceed ings pending or, to
Buyer's knowledge, threatened, against Buyer which seek to enjoin or rescind the
transactions contemplated by this Agreement or otherwise prevent Buyer from
complying with the terms and provisions of this Agreement.
ARTICLE VI
CERTAIN UNDERSTANDINGS AND AGREEMENTS OF THE PARTIES
6.1 CONDUCT OF THE BUSINESS. From the date hereof until the Closing
Date, BP, TA and TAFSI shall conduct the Business in the ordinary course and
consistent with past practice and shall use their reasonable best efforts to
preserve intact the Purchased Assets and the Business' organization and
relationships and goodwill with third parties and use its reasonable efforts to
keep available the services of the present officers, employees and agents of the
Sellers employed primarily in the Business. Without limiting the generality of
the foregoing, from the date hereof until the Closing Date:
38
(a) without Buyer's prior written consent, which shall not be
unreasonably withheld or delayed, neither BP, TA or TAFSI or will agree
to:
(i) other than in the ordinary course of the Business,
purchase or otherwise acquire assets for a consideration of more
than $25,000 from any Person;
(ii) sell, assign, lease, license, transfer or otherwise
dispose of, or mortgage, pledge or encumber (other than with
Permitted Liens), any Real Property or amend or terminate any lease
thereof, other than Vendor Outleases;
(iii) sell, assign, lease, license, transfer or otherwise
dispose of, or mortgage, pledge or encumber (other than with
Permitted Liens), any Purchased Assets (other than Real Property) or
assets that would constitute Purchased Assets (other than Real
Property) except (x) pursuant to existing obligations of BP, TA or
TAFSI, as the case may be and as set forth in Section 6.1(a)(iii) of
the Disclosure Schedule or (y) Inventory or Purchased Assets with a
fair market value not in excess of $100,000 in any one or series of
related transactions and in each case in the ordinary course of
business;
(iv) other than in the ordinary course of the Business,
amend or modify in any material respect or terminate or renew any
Scheduled Contract or any other Contract entered into by BP, TA or
TAFSI after the date hereof which, if in existence on the date
hereof, would be required to be set forth in Section 4.13 of the
Disclosure Schedule as a Scheduled Contract (each, a "Subsequent
Material Contract");
(v) other than in the ordinary course of the Business,
waive, cancel or take any other action materially impairing any of
their rights relating to the Purchased Assets (but only with respect
to Purchased Assets with a fair market value not in excess of
$100,000);
(vi) commit to make capital expenditures in excess of an
aggregate of $100,000 for all such capital expenditures relating to
the Business or the Purchased Assets, other than capital
expenditures set forth on Section 6.1(a)(vi) of
39
the Disclosure Schedule and capital expenditures required under any
Scheduled Contract;
(vii) other than in the ordinary course of the Business,
enter into or commit or propose to enter into any Subsequent
Material Contract, other than the entering into of a Subsequent
Material Contract as provided in Section 6.1(a)(vii) of the
Disclosure Schedule;
(viii) take any action that would consti tute, or fail to
take any action that would prevent, a material breach of or a
material default under any Purchased Contract or Subsequent Material
Contract or a violation of the terms of any material Permit;
(ix) other than in the ordinary course of the Business:
(1) no Seller shall increase the wages or salary of any such
Employee; (2) no Seller shall amend any Employment Agreement, adopt
any new benefit plan or arrangement applicable to any such Employee;
and (3) there has been no (a) material change in the compensation,
benefits, title or responsibilities of any such Employee or (b)
termination or re-assignment of any such Employee; provided,
however, that nothing in this Section 6.1(a)(ix) shall preclude
Sellers or any of their Affiliates from terminating, creating or
modifying any ERISA Plans or Benefit Arrangements which include
employees of other divisions of Sellers or their Affiliates; or
(x) make any change in the accounting methods for any
Purchased Contract or other Purchased Asset or in the manner of
keeping the books and records of the Business or financial
statements relating to the operation of the Business.
(b) Sellers will:
(i) (1) use their reasonable best efforts to maintain
the Purchased Assets in the ordinary course of business in good
operating order and condition, reasonable wear and tear excepted,
and (2) upon any damage, destruction or loss to any material portion
of the Purchased Assets, apply any and all insurance proceeds
received with respect thereto to the repair, replacement and
restoration thereof in accordance
40
with the historic practices of the Business to the condition of the
Assets before such event;
(ii) use their reasonable best efforts (which shall not
require paying consideration) to obtain, prior to the Closing Date,
all Required Consents;
(iii) take all actions reasonably necessary to be in
compliance with, and to maintain the effectiveness of, all Permits;
(iv) notify Buyer in writing of any action, event,
condition or circumstance, or group of actions, events, conditions
or circumstances, relating to BP, TA, TAFSI or the Business, of
which BP, TA or TAFSI gains knowledge and that results in, a
Material Adverse Effect or a Material Adverse Truckstop Effect, or
of the commencement of any Proceedings seeking to enjoin or rescind
the transactions contemplated hereby, such notification to be
provided to Buyer by BP, TA or TAFSI, as the case may be, promptly
after gaining knowledge of any such action, event, condition or
circumstance, or group thereof;
(v) provide Buyer with a written report (i) by August
31, 1993, (ii) subsequently by the end of each calendar month and
(iii) as soon as possible prior to the Closing, describing: (x) any
proceeding involving more than $50,000, but excluding in any event
garnishments, workers compensation and unemployment compensation or
similar proceedings, by or against BP, TA or TAFSI, as the case may
be, relating to the Business or any of the Purchased Assets, or of
BP, TA or TAFSI receiving any written threat, claim, proceeding,
notice of violation, demand letter, subpoena, that is likely to
result in such a Proceeding, and (y) any breach by BP or TA of any
representation or warranty, or any covenant or agreement, contained
in this Agreement of which Sellers have obtained knowledge;
(vi) pay accounts payable and pursue collection of its
accounts receivable relating to the Business or the Purchased Assets
in the ordinary course of business; and
(vii) comply with all provisions and requirements of the
WARN Act applicable to the
41
consummation of the transactions contemplated herein.
6.2 TAFSI. (a) TA shall, at the time and in the manner requested by
Buyer, join with Buyer in making a Section 338(h)(10) of the Internal Revenue
Code of 1986, as amended, election with respect to the purchase and sale of the
TAFSI Shares and, in connection therewith (i) shall cause a Department of the
Treasury Form 8023 that has been completed in accordance with Treasury
Regulation Section 1.338(h)(10)-IT to be executed on the Closing Date on behalf
of the affiliated group of corporations, for federal income tax purposes, of
which the TAFSI is a member on the Closing Date and (ii) take such other action
as Buyer shall reasonably request including, without limitation, providing Buyer
with any requested information, and making available and causing appropriate
persons to take any action on behalf of TA, required for the making of a Section
338(h)(10) election in accordance with Treasury Regulation Section
1.338(h)(10)-IT and Department of the Treasury Form 8023.
(b) Subject to the provisions of Section 10.12(b), Sellers
shall be liable for, and shall hold Buyer and TAFSI harmless against, any and
all Taxes due and payable by TAFSI for any taxable year or tax period ending on
or before the Closing Date. Taxes that Sellers shall be liable for and shall
hold Buyer and TAFSI harmless from and against under the preceding sentence
shall include, without limitation, any liability for Taxes that arises because
TAFSI ceases on the Closing Date to be a member of a group filing consolidated
returns of which it had been a member or any and all Taxes due or payable by
TAFSI or by the Buyer resulting from or arising out of the transactions
contemplated by this Agreement.
6.3 CONFIDENTIALITY. Until the Closing, Buyer shall be subject to
the terms and conditions of the Confidentiality Agreement, as if an original
party thereto. The Confidentiality Agreement shall terminate upon the occurrence
of the Closing as to the Purchased Assets, but shall survive the Closing with
respect to Excluded Assets or Excluded Liabilities.
6.4 ACCESS TO RECORDS AND FILES. BP shall have the right for a
period of seven (7) years, unless during that period BP notifies Buyer of an
audit by the federal, state or local revenue authorities to which any Purchased
Records pertain, in which case access to such Purchased Records will be
permitted until such time as Buyer is notified of the conclusion of the audit
proceeding, fol lowing the Closing Date to have reasonable access, during normal
business hours and upon reasonable prior notice, to
42
such books, records and accounts, correspondence, and employment records and
other similar information as are transferred to Buyer pursuant to the terms of
this Agreement and which the Buyer has retained possession of for the limited
purposes of concluding BP's involvement in the Business prior to the Closing
Date or otherwise with respect to the Excluded Assets or Excluded Liabilities;
PROVIDED, HOWEVER, that nothing set forth herein shall obligate Buyer to provide
Sellers or any of their attorneys, agents, employees, accountants or other
representatives with access to any information that is protected by the
attorney-client privilege or any similar privilege. Nothing contained herein
shall impose any obligation upon Buyer to retain any such books and records. All
information obtained by BP and its authorized representatives pursuant to this
Section 6.4 shall be kept confidential by BP and shall not be used by it for any
purpose other than concluding its involvement in the Business prior to the
Closing Date or otherwise managing Excluded Assets or Excluded Liabilities.
6.5 PUBLIC ANNOUNCEMENTS. The parties hereto agree that prior to the
Closing they will not make any dis closures to any Person (other than
Franchisees) regarding the existence or contents of this Agreement or
negotiations relating to the transactions contemplated herein or cause to be
publicized in any manner whatsoever by releases or otherwise any aspect or
proposed aspect of the transactions contemplated herein without prior written
notice to and approval of, which shall not be unreasonably withheld, the other
parties hereto, unless such party reasonably concludes that such release of
information is required by Applicable Law or necessary in order to obtain
Required Consents and the parties hereto cannot reach agreement upon a mutually
acceptable form of release. Notwithstanding the foregoing, the parties hereto
may, on a confidential basis, advise their respective Affiliates agents,
accountants, attorneys and prospective financing sources (including any Xxxx
chisees) with respect to the contents of this Agreement and the transactions
contemplated herein.
6.6 NO SHOPPING. From the date hereof until the earlier of the
Closing Date or the termination of this Agreement in accordance with its terms,
each of BP, TA and TAFSI shall not, and shall cause each of their Affiliates not
to, through any officer, director, employee or agent or otherwise, solicit,
initiate, participate in any negotiation or discussion or enter into any
agreement in respect of, or cooperate with, by furnishing any non-public
information concerning, affording access to, the Business or otherwise, any
Acquisition Proposal (as hereinafter defined) pertaining to the Business. The
term "Acquisition Proposal" means any proposal (other than a proposal by Buyer)
for the acquisi-
43
tion of all or any portion of the assets comprising the Business or for a
merger, consolidation or other business combination pursuant to which any other
person would acquire the Business or any substantial interest therein or any
material portion of the Purchased Assets (or portion thereof).
6.7 FURTHER ASSURANCES. Subject to the terms and conditions of this
Agreement, each party will use all rea sonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
desirable under Applicable Law to consummate the transac tions contemplated by
this Agreement. BP, TA, TAFSI and Buyer agree to execute and to deliver such
other documents, certificates, agreements and other writings, including
instruments of transfer with respect to the Purchased Assets, and to take such
other actions as may be necessary or desirable in order to consummate or
implement expedi tiously the transactions contemplated by this Agreement,
provided that BP, TA nor TAFSI is obligated to pay consideration to obtain any
consents, nor to assume or guaranty any Liabilities.
6.8 COOPERATION IN LITIGATION. Each party will fully cooperate with
the other in the defense or prosecution of any litigation or proceeding already
instituted or which may be instituted hereafter against or by such party relat
ing to or arising out of the conduct of the Business or the Purchased Assets
prior to or after the Closing Date (other than litigation arising out of the
transactions contemplated by this Agreement). Such cooperation shall include
making relevant employees available for interviews, deposition or trial
testimony without subpoena.
6.9 CERTAIN FILINGS. Sellers and Buyer shall cooperate with one
another in determining whether any action by or in respect of, or filing with,
any Governmental Authority or with respect to any Required Permit Approval is
required or reasonably appropriate, or any action, consent, approval or waiver
from any party to any Contract is required or reasonably appropriate, in
connection with the consummation of the transactions contemplated by this Agree
ment; PROVIDED, HOWEVER, that BP, TA, TAFSI and Buyer retain the right to make
any filings required by Applicable Law. Subject to the terms and conditions of
this Agreement, BP, TA, TAFSI and Buyer shall seek to timely obtain any such
actions, consents, approvals or waivers and shall furnish all information
required in connection therewith. Without limiting the foregoing, (i) BP, TA,
TAFSI and Buyer shall each promptly complete and file all reports and forms, and
respond to all requests or further requests for additional information, as may
be required or authorized under the HSR
44
Act and (ii) BP, TA, and TAFSI will comply with all provi sions and requirements
of the WARN Act applicable to the consummation of the transactions contemplated
herein, including any such provisions and requirements applicable to any
termination of the employment of any of Sellers' employees. None of the
provisions in this Section 6.9 abrogate or limit in any way any of the
representations, warranties and covenants made by BP, TA or TAFSI in any of the
other provisions in this Agreement.
6.10 ADMINISTRATION OF ACCOUNTS.
(a) All accounts receivable paid in the ordinary course by any
third party in the name of or to Buyer in connection with the operation of the
Business on or prior to the Closing Date shall be held by Buyer in trust for the
benefit of BP and, promptly upon receipt by Buyer of any such payment, Buyer
shall forward to BP such monies, checks, instruments or other payments without
right of set off. BP, TA and TAFSI hereby authorize Buyer to open any and all
mail addressed to TA or TAFSI (if delivered to Buyer) if received on or after
the Closing Date.
(b) All accounts receivable paid in the ordinary course by any
third party in the name of or to BP in connection with the operation of the
Business after the Closing Date shall be held by BP in trust for the benefit of
Buyer and, immediately upon receipt by BP of any such pay ment, BP shall forward
to Buyer such monies, checks, instru ments or other payments without right of
set off. Buyer hereby authorizes BP to open any and all mail addressed to Buyer
(if delivered to Sellers) if received on or after the Closing Date.
6.11 TITLE INSURANCE; ENCUMBRANCES. If, at any time on or prior to
the Closing Date, Buyer obtains title reports or surveys showing, or otherwise
learns of, any Encumbrance on any parcel of Real Property that is not a
Permitted Encumbrance, Sellers will, immediately upon receipt of notice from
Buyer of such Encumbrance (or immediately upon Sellers' obtaining knowledge of
such Encumbrance, whichever occurs first), use their reasonable best efforts to
cause title to such Real Property to be cleared of such Encumbrance on or prior
to the Closing Date; PROVIDED, HOWEVER, that if such Encumbrance relates to or
is in connection with indebtedness of any Seller or any Affiliate of any Seller
or any other Person, Seller will cause the indebtedness to be paid in full and
the Encumbrance to be discharged, or cause First American Title Insurance
Company, or such other title insurance company Buyer deems acceptable to insure
against such Encumbrance,
45
and/or take all actions necessary to remove such Encumbrance.
If Sellers are unable to cure or remove any such Encumbrance,
Sellers and Buyer shall attempt to reach a mutually acceptable solution during
the next twenty (20) days and in the absence of such a solution Sellers shall
notify Buyer in writing and Buyer shall have ten (10) days from receipt of such
notice to either waive its objection to such Encumbrance or invoke the
provisions of Section 6.19.
Buyer agrees to use its reasonable best efforts to obtain any title
reports and/or surveys as soon as practicable following execution of this
Agreement. Buyer shall promptly deliver to Seller copies of any and all such
title reports and/or surveys obtained by Buyer.
6.12 EMPLOYEES AND BENEFITS.
(a) EMPLOYMENT. Buyer shall offer to employ, effective as of
the Effective Time, substantially all of the full-time and regular part-time
Employees of the Business who are general managers, division managers,
distribution center employees, hourly employees, profit center managers or
assistant profit center managers and at least 80% of the full-time and regular
part-time corporate staff employees as listed on Section 6.12 (a) of the
Disclosure Schedule on such terms and conditions with respect to compensation
and benefits as Buyer may determine; PROVIDED, HOWEVER, that nothing in this
Agreement shall be construed (i) to limit the right of Buyer, in its sole
discretion, to terminate the employment of any such individual or individuals,
for cause or otherwise, at any time after the Closing Date or (ii) to obligate
Buyer to offer employment to any individual who is receiving long-term
disability benefits as of the Closing Date or who in Buyer's sole judgment is
reasonably likely to commence receiving such benefits, or who is on a leave of
absence as of the Closing Date for any reason.
(b) SELLERS' PLANS.
(i) GENERAL. Effective as of the Closing Date, the Affected
Employees shall cease to actively participate (including but not limited to
cessation of benefit accruals) in the employee benefit plans, programs and
policies of Sellers (the "Sellers' Benefit Plans"). Buyer shall assume no
obligation or liability with respect to any of the Sellers' Benefit Plans,
except that Buyer shall provide such information as any Seller may from time to
time reasonably request in order to administer Sellers' Benefit Plans.
46
(ii) PENSION PLAN. BP America Inc. presently maintains the BP
America Retirement Accumulation Plan for the benefit of certain of the Employees
of the Business and other employees of BP Group. Sellers shall cause said plan
to fully vest the Affected Employees participating in said plan in their
benefits accrued under such plan as of the Closing Date.
(iii) SAVINGS PLANS.
a) BP America Inc. presently maintains the BP America
Capital Accumulation Plan for the benefit of certain of the Employees of
the Business and other employees of BP Group. Sellers shall cause said
plan to fully vest the Affected Employees participating in said plan in
their account balances under said plan as of the Closing Date.
b) BP America Inc. presently maintains the BP America
DirectSave Plan for the benefit of certain of the hourly Employees of the
Business and other employees of Sellers. Sellers shall cause said plan to
fully vest the Employees of the Business participating in said plan in
their account balances under such plan as of the Closing Date.
c) BP America Inc. presently maintains the BP America
Partnership Savings Plan for the benefit of certain of the Employees of
the Business and other employees of Sellers. Sellers shall cause said plan
to fully vest the Employees of the Business participating in said plan in
their account balances under such plan as of the Closing Date.
(c) BUYER PLANS. Buyer shall establish, effective as of the Closing
Date, one or more group medical and dental insurance plan or plans for the
Affected Employees (and their dependents), which plan or plans shall have such
terms and conditions as Buyer, in its sole discre tion, shall determine. Buyer
shall inform Sellers of the terms and conditions of each such plan as soon as
possible after they have been determined. Affected Employees will generally
receive credit for service with Sellers prior to the Closing Date for purposes
of eligibility for participa tion under any medical and dental benefit plans,
and levels of benefits under any vacation policy or plan, which Buyer may
establish or contribute to by or on behalf of any Affected Employee (and his
dependent and beneficiary, if applicable) in accordance with the terms and
conditions of any such plan established or contributed to by Buyer; PROVIDED,
HOWEVER, that nothing in this Agreement shall be construed to limit the ability
of Buyer to modify, amend or terminate any benefits (including medical and
dental bene fits) provided to any Affected Employee (or his dependent or
47
beneficiary) at any time after the Closing Date for any reason or to obligate
Buyer to pay any vacation benefits arising out of or relating to service with
either Seller.
(d) PREEXISTING CONDITIONS. The Sellers shall have the right on or
prior to August 31, 1993 to amend this Agreement to include herein a
representation to be made by Sellers as follows: "The number and severity of
claims made by Employees of the Business under the Sellers' group medical plan
during the twelve month period ending June 30, 1993 (the "Prior Year") did not,
after appropriate adjustment for changes in the size of the workforce,
materially increase from the number and severity of such claims in the twelve
month period immediately preceding the Prior Year." In the event that Sellers
elect to include such representation in this Agreement and such representation
is not breached, Buyer's group medical plan shall include a waiver of
preexisting conditions limitations for any Affected Employee for claims incurred
after such employee's completion of twelve months of service with Buyer.
(e) NO THIRD-PARTY RIGHTS. Nothing herein expressed or implied shall
confer upon any employee (including any Employee or any Affected Employee),
former employee, dependent, beneficiary or legal representative thereof, any
right of any nature or kind whatsoever under or by reason of this Agreement,
including, without limitation, any right to employment or continued employment
for any specified period.
6.13 INVENTORY.
(a) INVENTORY SALE. Sellers shall sell to Buyer and Buyer
shall purchase directly from Sellers all Inventory. The sale of Inventory at the
Real Properties shall be effective as of the Effective Time. Any such items
which are owned by third parties shall be excluded from Inventory.
(b) PRICE. Buyer shall pay to BP at the time and in the manner
hereinafter set forth, by wire transfer of immediately available funds, a total
amount for the Inventory at or in transit to the Real Properties purchased
directly by Buyer in accordance with the values set forth in Section 6.13(b) of
the Disclosure Schedule. If, for any reason, Buyer neglects to pay Sellers for
any Inventory in transit, Buyer shall be responsible to either pay Sellers for
such Inventory if Sellers have already paid the vendor, or, shall pay the vendor
directly if the vendor has not yet been paid.
48
(c) INVENTORY AND CASH CALCULATION. The total amount payable
for Inventory and cash on hand shall be determined as follows:
(i) ESTIMATED INVENTORY AND CASH AMOUNTS. Not earlier
than five (5) days prior to the Closing Date, Sellers shall prepare and
submit to Buyer a schedule setting forth Sellers' good faith estimate of
the total amount payable for the Inventory at or in transit to each Real
Property being conveyed to Buyer (the "Estimated Inventory Amount") and
the cash on hand at the Real Properties, and Buyer shall pay the Estimated
Inventory Amount and estimate of cash on hand to BP at Closing
(collectively, the "Closing Payment").
(ii) TAKING OF INVENTORY. Not earlier than the day after
the Closing Date, Sellers shall take or cause to be taken an inventory of
all items of Inventory at or in transit to each Real Property being
conveyed to Buyer (the "Closing Inventory") as follows:
(1) HYDROCARBON INVENTORY. The hydrocarbon
Inventory shall be measured and valued in accordance with the
procedures described in Section 6.13(c)(ii)(1) of the Disclosure
Schedule.
(2) NON-HYDROCARBON INVENTORY. The non-hydrocarbon
Inventory shall be measured and valued in accordance with the
procedure described in Section 6.13(c)(ii)(2) of the Disclosure
Schedule.
(iii) CONFIRMATION. Buyer and its representatives shall
have the right to attend and observe the measurement of the Inventory. The
Closing Inventory shall be confirmed by a representative of Buyer who
attends and observes the physical measurement of Inventory.
(iv) CLOSING INVENTORY AND CASH AMOUNTS. Within thirty
(30) days after the Closing Date, Sellers shall prepare or cause to be
prepared a statement of the total amount payable for Inventory, (the
"Closing Inventory Amount,")(and the Closing Inventory Amount, reduced by
$60,000, is hereafter referred to as the "Adjusted Closing Inventory
Amount")), and cash on hand at or in transit to the Real Properties on the
Closing Date and BP shall send such statement to Buyer, together with
appropriate supporting calculations and documentation. Calculation of the
Adjusted Closing Inventory Amount shall include a reconciliation of the
49
inventory count taken after the Closing and the inventory existing at the
Effective Time based on sales and purchase receipts between the Effective
Time and the time of the inventory count. If the Adjusted Closing
Inventory Amount and cash on hand amount is greater than the Closing
Payment, then the difference shall be paid by Buyer to BP within ten (10)
Business Days after Buyer's receipt of such statement. If the Adjusted
Closing Inventory Amount and cash on hand amount is less than the Closing
Payment, then the difference shall be paid by BP to Buyer within ten (10)
Business Days after Sellers' sending of such statement. Any amounts unpaid
within the time periods set forth above shall begin to accrue interest at
the Reference Rate, which interest shall be added to and paid with such
amounts.
(d) DISAGREEMENT NOTICE. If Buyer does not file a Disagreement
Notice as provided in this Section 6.13(d) with BP, the statement reflecting the
Closing Inventory Amount and cash on hand amount shall become final and binding.
(i) If Buyer disagrees with the said statement, it may,
within ten (10) Business Days of receipt, deliver a notice to BP (the
"Disagreement Notice"), setting forth its calculation of the Closing
Inventory Amount and cash on hand and specifying, in reasonable detail,
those items or amounts in the statement as to which Buyer disagrees and
the reasons for such disagreement. Buyer shall be deemed to have agreed
with all items and amounts contained in statement other than those
specified in any such Disagreement Notice.
(ii) If a Disagreement Notice is delivered pursuant to
this Section 6.13(d), the parties shall, during the ten (10) Business Days
following such delivery, use their best efforts to reach agreement on the
disputed items or amounts in order to determine the Closing Inventory
Amount, which shall not be more favorable to Sellers than reflected in the
statement nor more favorable to Buyer than shown in the calculations
delivered by Buyer in the Disagreement Notice. If the parties cannot agree
within thirty (30) Business Days, this Agreement and the disputed items
and amounts will be submitted to the New York office of independent
nationally recognized accountants without material financial relationship
to either Buyer or any Seller for determination of the Adjusted Closing
Inventory Amount and amount of cash on hand. In making such calculation,
said accountants shall consider only
50
those accounting items or calculation of the amounts in the statement as
to which Buyer has disagreed. The accountants shall not be called upon to
render any determination on disputes which involve taking evidence from
non-accounting experts or on matters on which an accounting firm would
normally seek an opinion of legal counsel as part of its audit procedures.
Unless the parties agree otherwise, the accountants shall not be called
upon to determine questions of law. The accountants shall not create or
establish any reserves for any reason and shall be limited to physically
counting Inventory and cash, and reviewing the valuation of the Inventory
in accordance with Section 6.13(c) and the calculations related thereto.
The accountants shall deliver to BP and Buyer, as promptly as practicable,
a written report setting forth their determination of the Adjusted Closing
Inventory Amount. Such report shall be final, conclusive and binding upon
the parties, and shall not be subject to appeal to any court or tribunal.
Each party will bear its own expenses, except that the said accountants'
fee will be shared equally by the parties.
(iii) Within five (5) Business Days of the determination
of the Adjusted Closing Inventory Amount, the applicable party will make a
payment in accordance with the provisions of Section 6.13(c)(iv).
6.14 COOPERATION WITH RESPECT TO FINANCING.
(a) Sellers will cooperate with Buyer in connection with the
obtaining of the financing referred to in Section 7.2(i) hereof and in the
preparation of one or more offering memoranda for the private offering of debt
or equity securities to be issued by Buyer (collectively, the "Offering
Material") by furnishing to Buyer all information reasonably requested by Buyer
relating to such financing or the preparation of the Offering Material.
(b) In connection with the preparation of the Offering
Material, Sellers will assist in the prepara tion of all historical information
requested by Buyer with respect to the Business or the Purchased Assets for
inclusion in such Offering Material, provided such infor mation is available to
Sellers without unreasonable expense, including, without limitation, (i) a
description of the Business and properties thereof, and the legal proceedings
with respect to, the Business or the Purchased Assets and (ii) financial
information with respect to the Business or the Purchased Assets, including,
without limitation, financial statements, selected financial data and supple
mentary financial information, management's discussion and
51
analysis of financial condition and results of operations and disagreements with
accountants on accounting and financial disclosure, if any.
(c) Sellers shall not be required to provide any information
(i) that is protected by the attorney-client privilege or any similar privilege,
(ii) relating to employees whom the Buyer has decided not to hire, (iii)
relating to income taxes of the BP Group, (iv) primarily related to the Excluded
Assets or the Excluded Liabilities or (v) protected by confidentiality
obligations of the Sellers to third parties, unless waived by such third
parties.
(d) Sellers and their agents do not repre sent the accuracy or
completeness of, and shall have no liability with respect to errors or omissions
in, any information provided to Buyer or its agents pursuant to this Section
6.14, except to the extent caused by the intentional or reckless acts of a
"control person" of Sellers (as "control person" is defined in the federal
securities laws).
(e) Buyer shall keep Sellers fully apprised of all material
developments relating to the Buyer's financing of the acquisition of the
Business.
6.15 RECENT FINANCIAL STATEMENTS. Prior to the Closing Date, BP
agrees to timely prepare and deliver to Buyer financial statements comparable to
those delivered pursuant to Section 4.5 hereof for any quarter or year which
ends on a date subsequent to June 30, 1993.
6.16 SCHEDULE UPDATES. Sellers shall, not less than three (3) days
prior to the Closing Date, provide a notice showing the changes to the
Disclosure Schedule (the "Update Notice") necessary to reflect facts or events
occurring, or learned by Sellers, after the date of this Agreement. Sellers'
representations and warranties in this Agreement shall be deemed amended by the
contents of the Update Notice.
6.17 ASSISTANCE WITH ACCOUNTS RECEIVABLE. Buyer will provide BP
after the Closing Date with such assistance as BP may reasonably request in
collecting accounts receivable of the Business retained by BP, including,
without limitation: (i) giving BP access to records; (ii) assisting in the
resolution of any warranty claims or contract disputes raised by account
debtors; and (iii) allowing BP to bring suit in the name of TA (at BP's
expense); PROVIDED, HOWEVER, that Buyer shall not be required to bring
Proceedings against any such debtor.
52
6.18 FINANCING. Buyer will use its reasonable best efforts to
obtain the necessary financing for the purchase of the Business.
6.19 PROPERTIES. Without diminishing or impairing any rights of the
parties contained elsewhere in this Agreement or in any other Agreement,
document or certificate delivered pursuant hereto, in the event that one or more
of the Company Truckstops (the "Non-Conveyable Properties") included in the
Purchased Assets cannot be conveyed by Sellers to Buyer (whether as a result of
a title defect, environmental matter, condemnation, destruction or otherwise),
the Sellers and the Buyer shall enter into negotiations with respect to the
conveyance of the Purchased Assets to the Buyer other than the Non-Conveyable
Properties at a purchase price to be agreed upon by the Sellers and the Buyer.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 The obligations of the parties to consummate the transactions
contemplated hereby shall be subject to the fulfillment, at or prior to the
Closing Date, of the following conditions:
(a) NO ACTION OR PROCEEDING. No Proceeding shall be pending or
threatened before any Governmental Authority which presents a material
risk of the restraint or prohibition of the transactions contemplated by
this Agreement or the obtaining of material Damages or other relief in
connection therewith.
(b) COMPLIANCE WITH LAW. There shall have been obtained all
permits, approvals and consents of Governmental Authorities which counsel
for the parties may reasonably deem necessary or appropriate so that
consummation of the transactions contemplated by this Agreement will be in
compliance with Applicable Law, including, without limitation, the
permits, approvals and consents listed in Sections 4.4 and 5.3, but
excluding any Required Permit Approvals.
7.2 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer to
consummate the transactions contemplated hereby shall be, at the option of
Buyer, subject to the fulfillment, at or prior to the Closing Date, of the
following additional conditions:
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(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of BP and TA contained in this Agreement, the Environmental
Agreement and the Ancillary Agreements, as supplemented pursuant to
Section 6.16 shall be true and correct in all material respects on the
Closing Date with the same effect as if made on the Closing Date. There
shall have been no material adverse change in the Sellers' representations
and warranties by virtue of Sellers supplementing the Schedules pursuant
to Section 6.16. Sellers shall have delivered to Buyer a certificate in
the form of the attached Exhibit M to such effect signed on their behalf
by the President or any Vice President of each of Seller to the foregoing
effect and that delivered pursuant to such certificate is a true, correct
and complete copy of all of the Scheduled Contracts.
(b) SELLERS' PERFORMANCE. Each of BP's or TA's obligations to
be performed on or before the Closing Date pursuant to the terms of this
Agreement or the Environmental Agreement shall have been duly performed in
all material respects on or before the Closing Date. Each of BP and TA
shall have delivered to Buyer a certificate to such effect in the form of
the attached Exhibit N signed on their behalf by the President or any Vice
President of each of BP and TA, as the case may be.
(c) ANCILLARY AGREEMENTS. Sellers shall have each executed
each of the Ancillary Agreements to which they are parties and TAFSI shall
have executed the TAFSI Assumption Agreement.
(d) OPINION OF BP'S COUNSEL. Buyer shall have been furnished
at the Closing with an opinion of Xxxxxx X. Xxxx or the associate general
counsel or chief counsel of BP America Inc., dated the Closing Date, in
the form of Exhibit K.
(e) ADDITIONAL CLOSING DOCUMENTS OF SELLER. Buyer shall have
received at the Closing the following documents, dated the Closing Date:
(i) copies, certified by the Secretary or an Assistant
Secretary of each of BP or TA, as the case may be, of resolutions of
the Board of Directors of each of BP or TA or the Executive
Committee thereof authorizing the execution, delivery and
performance of this Agreement and all other agreements, documents
and instruments
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relating hereto and the consummation of the transactions
contemplated hereby; and
(ii) special warranty deeds (or their equivalent in each
applicable state) in proper statutory form for recording, duly
executed and acknowledged by BP and TA covering the Owned Real
Property to be conveyed to Buyer pursuant to this Agreement; and
(iii) such further instruments of sale, transfer,
conveyance, assignment or delivery covering the Purchased Assets or
any part thereof as Buyer may reasonably require to assure the full
and effective sale, transfer, conveyance, assignment or delivery to
it of the Purchased Assets to be transferred to Buyer under this
Agreement, none of which shall expand any of Sellers' liabilities
under this Agreement; and
(iv) the other documents to be delivered to Buyer
pursuant to Section 3.1.
(f) REQUIRED PERMIT APPROVALS. All Required Permit Approvals
identified in Section 7.2(f) of the Disclosure Schedule shall have been
obtained without the imposition of any conditions that are or would become
applicable to the Business, the Purchased Assets, Buyer or any Franchisee,
which Buyer in good faith reasonably determines would be materially
burdensome upon the Business, the Purchased Assets, Buyer or any
Franchisee or Buyer's conduct of business after the Closing. All such
Required Permit Approvals shall be in effect, and no Proceeding shall have
been instituted or threatened by any Governmental Authority with respect
thereto as to which, in Buyer's good faith opinion, there is a material
risk of a determination that would terminate the effectiveness of, or
otherwise materially and adversely modify the terms of, any such Required
Permit Approval.
(g) REQUIRED CONTRACTUAL CONSENTS. All Required Contractual
Consents identified in Section 7.2(g) of the Disclosure Schedule shall
have been obtained in written instruments reasonably satisfactory to
Buyer.
(h) TITLE TO REAL PROPERTY. Title to the Real Property being
transferred to Buyer hereunder shall have been cleared of any Encumbrances
which are not Permitted Encumbrances.
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(i) FINANCING. All conditions precedent set forth in the
documents relating to the funding of any debt and equity the proceeds of
which Buyer shall use to effectuate the acquisition of the Purchased
Assets shall have been fulfilled and the Persons committed to providing
such funding shall be prepared to do so concurrently with the Closing.
(j) MATERIAL ADVERSE EFFECT. There shall not have occurred any
event, occurrence, development or state of circumstances or facts or
change in the Assets or the Business (including any damage, destruction or
other casualty loss) affecting the Business or any Asset which has had or
which may reasonably be expected to have, either alone or together with
all such events, occurrences, developments, states of circumstances or
facts or changes, a Material Adverse Effect.
7.3 CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers to consummate the transactions contemplated hereby shall be, at the
option of BP, subject to the fulfillment, at or prior to the Closing Date, of
the following additional conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of Buyer contained in this Agreement or in any document
delivered pursuant hereto shall be true and correct in all material
respects on the Closing Date with the same effect as if made on the
Closing Date. Buyer shall have delivered to BP a certificate in the form
of Exhibit O to such effect, signed on its behalf by the President or any
Vice President of Buyer.
(b) PERFORMANCE OF COVENANTS. Each of the obligations of Buyer
to be performed on or before the Closing Date pursuant to the terms of
this Agreement shall have been duly performed in all material respects on
or before the Closing Date. Buyer shall have delivered to BP a certificate
in the form of Exhibit P to such effect, signed on its behalf by the
President or any Vice President of Buyer.
(c) ANCILLARY AGREEMENTS. Buyer shall have executed the
Ancillary Agreements to which it is a party.
(d) OPINION OF BUYER'S COUNSEL. BP shall have been furnished
with an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to
Buyer, dated the Closing Date, addressed to BP in the form of Exhibit Q.
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(e) ADDITIONAL CLOSING DOCUMENTS OF BUYER. BP shall have
received at the Closing the following documents, each dated the Closing
Date:
(i) copies, certified by the Secretary or an Assistant
Secretary of Buyer, of resolutions of its Board of Directors or the
Executive Committee thereof authorizing the execution and delivery
of this Agreement and all other agreements, documents or instruments
relating hereto and the consummation of the transactions
contemplated hereby; and
(ii) confirmation of the wire transfer to be delivered by
Buyer at the Closing pursuant to Section 2.5(i) hereof.
(f) REQUIRED CONTRACTUAL CONSENTS. All Required Contractual
Consents identified in Section 7.2(g) of the Disclosure Schedule shall
have been obtained in written instruments reasonably satisfactory to BP.
(g) REQUIRED PERMIT APPROVALS. All Required Permit Approvals
identified in Section 7.2(f) of the Disclosure Schedule shall have been
obtained.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY SELLER. Except for indemnification with
respect to Environmental Liabilities, which shall be governed exclusively by the
Environmental Agreement, BP shall indemnify and hold harmless Buyer, Buyer's
Affiliates and their respective officers, directors, employees and agents
(collectively, the "Buyer Indemnitees") in respect of any and all Damages
reasonably incurred by any Buyer Indemnitee, whether paid or payable, as a
result of or otherwise in connection with each and all of the following:
(a) any breach of any representation or warranty made by BP or
TA in this Agreement or any Ancillary Agreement;
(b) the breach of any covenant, agreement or obligation of any
Seller contained in this Agreement or any Ancillary Agreement;
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(c) any misrepresentation contained in any certificate
furnished by BP or TA pursuant to this Agreement;
(d) the ownership, use or operation of the Purchased Assets by
Sellers or the conduct of the Business by the Sellers on or prior to the
Closing Date;
(e) any failure of Buyer to obtain the protections afforded by
compliance with the notification requirements of the bulk sale, bulk
transfer and similar laws in force in the jurisdictions in which such laws
may be applicable to Sellers or the transactions contemplated by this
Agreement;
(f) the Excluded Liabilities;
(g) any Liability arising under the WARN Act with respect to
the termination by Sellers or any of their Affiliates or ERISA Affiliates
of any employee of BP, TA or TAFSI;
(h) employment (or termination of employment) of the Employees
through the Closing Date;
(i) those Taxes for which Seller is responsible;
(j) except for Liabilities which Buyer expressly agrees to pay
pursuant to Section 10.12 hereof, any Liability with respect to any tax
liabilities of any and all kinds arising out of the ownership, operation
or possession of the Business, the Purchased Assets or Excluded Assets
prior to the Effective Time, and, except as expressly provided else where
in this Agreement, any obligation of BP, TA or TAFSI or any consolidated
group of which BP, TA or TAFSI is or was a member with respect to any and
all taxes, including, without limitation, any debts, liabilities,
obligations or commitments for any income, excise, tax, youth, gross
receipts, franchise, employment, payroll related or property tax of any
sort, and any deficiencies, assessments, charges, interest and penalties
associated therewith, imposed upon BP, TA or TAFSI or any consolidated
group of which BP, TA or TAFSI is or was a member by the United States,
any taxing authority outside the United States or any State or local
instrumentality or authority within the United States, relating to,
accrued for, applicable to or arising from in the period as of, prior to
or after the Effective Time;
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(k) any claim pursuant to the PMPA or any similar or related
federal or state statute or regulation arising out of or resulting from
(i) the ownership, administration use or operation of the Purchased Assets
by the Sellers or the conduct of the Business by the Sellers on or prior
to the Closing Date or (ii) the execution and delivery of this Agreement
or the sale of any of the Purchased Assets to the Buyer; and
(l) any Liabilities of TAFSI other than liabilities of TAFSI
under each of the Scheduled Contracts to which it is a party in effect on
the Closing Date, and the Liabilities of TAFSI under the Assigned Permits
to be performed after the Closing Date.
8.2 INDEMNIFICATION BY BUYER. Except for indemnification with
respect to Environmental Liabilities, which shall be governed exclusively by the
Environmental Agreement, Buyer shall indemnify and hold harmless BP, BP's
Affiliates and their respective officers, directors, employees and agents
(collectively the "BP Indemnitees") in respect of any and all Damages reasonably
incurred by any BP Indemnitee, whether paid or payable, as a result of or in
connection with each and all of the following:
(a) any breach of any representation or warranty made by Buyer
in this Agreement or any Ancillary Agreement;
(b) the breach of any covenant, agreement or obligation of
Buyer contained in this Agreement or any Ancillary Agreement;
(c) any misrepresentation contained in any certificate
furnished by Buyer pursuant to this Agreement;
(d) the Assumed Liabilities;
(e) the ownership, use or operation of the Purchased Assets or
the conduct of the Business by Buyer subsequent to the Closing Date;
(f) any claim pursuant to the PMPA or any similar or related
federal or state statute or regulation arising out of or resulting from
the ownership, administration use or operation of the Purchased Assets or
the conduct of the Business by the Buyer after the Closing Date; and
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(g) Buyer's actual violation of any employment law or tortious
conduct with respect to the Employees in its employee selection process
and the terms and conditions of its employment offers.
8.3 DEFENSE OF CLAIMS. Whenever any claim shall arise for
indemnification hereunder, the party entitled to indemnification (the
"Indemnified Party") shall promptly notify the other party (the "Indemnifying
Party") of the claim and, when known, the facts constituting the basis for such
claim. The Indemnifying Party will not be obligated to indemnify the Indemnified
Party with respect to such portion of the claim as to which (and only to the
extent to which) the Indemnifying Party's ability to defend has been prejudiced
by the Indemnified Party's failure to provide prompt notice of a claim. The
Indemnifying Party may, upon written notice to the Indemnified Party within 30
calendar days of receipt of the notice specified in the first sentence of this
paragraph, assume the defense of any such claim, or any discrete portion of a
claim if the Indem nifying Party acknowledges to the Indemnified Party the
Indemnified Party's right to indemnity pursuant hereto in respect of the
entirety of such claim, or the relevant portion. If the Indemnifying Party
assumes the defense of any such claim, the Indemnifying Party shall select
nationally recognized counsel or counsel reasonably acceptable to the
Indemnified Party to conduct the defense of such claim, and shall take
reasonable steps in the defense or settlement thereof. If the Indemnifying Party
shall have assumed the defense of any claim in accordance with this Section 8.3,
the Indemnifying Party shall be authorized to consent to a settlement of, or the
entry of any judgment arising from, any such claim, without the prior written
consent of the Indemnified Party; PROVIDED, HOWEVER, that the Indemnifying Party
shall pay or cause to be paid all amounts arising out of such settlement or
judgment concurrently with the effectiveness thereof; PROVIDED, FURTHER, that
the Indemnifying Party shall not be authorized to encumber any of the assets of
the Indemnified Party or to agree to any restriction that would apply to the
Indemnified Party, or to any other Buyer or BP Indemnitee, as applicable, or to
its conduct of business or to any other Buyer or BP Indemnitee, as applicable,
or to their conduct of business; and PROVIDED, FURTHER, that if such settlement
does not contain a complete release of the Indemnified Party with respect to
such claim, the Indemnifying Party shall continue to be obligated to indemnify
the Indemnified Party with respect to such claim. The Indemnified Party shall be
entitled to participate in (but not control) the defense of any such action,
with its own counsel and at its own expense. The Indemnified Party shall, and
shall cause each of its Affiliates, officers, employees, consultants and
60
agents and each other Buyer or BP Indemnitee, as applicable, to cooperate fully
with the Indemnifying Party in the defense of any claim pursuant to this Section
8.3. If the Indemnifying Party does not assume the defense of any claim
resulting therefrom in accordance with the terms of this Section 8.3, the
Indemnified Party may defend against such claim in such manner as it may
reasonably deem appropriate, including settling such claim after giving notice
of the same to the Indemnifying Party, on such terms as the Indemnified Party
may reasonably deem appropriate.
8.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by the parties in Articles IV and V and in any instrument or
document furnished in connection herewith shall survive the Closing and any
investigation at any time made by or on behalf of the parties hereto and shall
expire on the second anni versary 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 second 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 or willful misconduct of the senior management
of Sellers 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 4.8 and 5.5 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 Sellers and Buyer hereunder shall survive until the
expiration of any applicable statute of limitations. No claim or action for
indemnity pursuant to Section 8.1 or 8.2 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 8.4 except for claims made in reasonable detail 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.
8.5 LIMITATIONS ON INDEMNIFICATION FOR BREACHES
OF REPRESENTATIONS AND WARRANTIES.
(a) No amount shall be recoverable for Damages under
Paragraphs (a) and (c) of Section 8.1 unless and only to the extent that Damages
claimed by the Buyer Indemnitees under Paragraphs (a) and (c) of Section 8.1
exceeds $500,000 (the "Sellers' Basket"), and then only for the excess over the
Sellers' Basket. Notwithstanding the
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foregoing sentence, indemnification under Paragraphs (a) and (c) of Section 8.1
may be claimed with respect to all Damages resulting from, and full recovery
shall be made for, (i) the inaccuracy of any representation or warranty set
forth in Section 4.8, (ii) the failure of Sellers to disclose in the Disclosure
Schedule any Contracts which are required by this Agreement to be disclosed
therein and (iii) the inaccuracy of any representation or warranty arising out
of the willful misconduct of the senior management of BP.
(b) No amount shall be recoverable for Damages under
paragraphs (a) and (c) of Section 8.2 unless and only to the extent that Damages
claimed by the Seller Indemnitees under paragraphs (a) and (c) of Section 8.2
exceeds $100,000 (the "Buyer's Basket"), and then only for the excess over the
Buyer's Basket. Notwithstanding the foregoing sentence, indemnification under
paragraphs (a) and (c) of Section 8.2 may be claimed with respect to all Damages
resulting from, and full recovery shall be made for, (i) the inaccuracy of any
representation or warranty set forth in Section 5.5 and (ii) the inaccuracy of
any representation or warranty arising out of the willful misconduct of the
senior management of the Buyer.
8.6 CAP. The Indemnifying Party's obligations to indemnify the
Indemnified Party under this Agreement, the Ancillary Agreements (but not the
Environmental Agreement) or for any matter in connection herewith or therewith,
(except to the extent expressly provided otherwise in the Environmental
Agreement), shall in no event exceed $92,000,000 (the "Cap"), any Damages in
excess of the Cap being deemed waived by the Indemnified Party.
8.7 LIMITATION ON DAMAGES. The amount of Damages recoverable by an
Indemnified Party under this Agreement shall: (i) with respect to claims arising
out of the sale of the Inventory, exclude consequential damages; (ii) with
respect to claims other than those arising out of the sale of the Inventory,
exclude special damages (within the meaning of American List Corporation v. U.S.
News and World Report, Inc., 550 N.Y.S. 2d 590) (a) arising from covenants,
obligations, representations, events of default and similar obligations in
Buyer's debt and equity financing agreements or (b) that should not have been
reasonably foreseeable by the parties at the time this Agreement was entered
into; and (iii) in all cases, exclude punitive damages; provided, however, that
nothing in this Section 8.7 shall limit recovery of amounts paid or payable by
an Indemnified Party to a third party.
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8.8 EXCLUSIVE REMEDIES.
(a) The Buyer agrees, on behalf of itself and the Buyer
Indemnitees, that any claim or demand against Sellers, their Affiliates, their
employees, officers, directors and agents (collectively for the purpose of this
Section 8.8(a) "Seller") arising out of or relating to this Agreement, the
transactions contemplated herein, or the Business must be brought only under
this Section 8 and subject to the procedures and limitations herein. Nothing in
this Agreement is intended to limit any claims Buyer, its Affiliates or the
Buyer Indemnitees may have against prior owners of the Business or the Real
Property.
(b) Sellers agree, on behalf of themselves and the BP
Indemnitees, that any claim or demand against Buyer, its Affiliates, its
employees, officers, directors and agents (collectively for the purpose of this
Section 8.8 "Buyer") arising out of or relating to this Agreement, the
transactions contemplated herein, or the Business must be brought only under
this Section 8 and subject to the procedures and limitations herein. Nothing in
this Agreement is intended to limit any claims Sellers, their Affiliates or the
Seller Indemnitees may have against prior owners of the Business or the Real
Property.
8.9 INSURANCE. Buyer acknowledges that none of Sellers' insurance
policies will transfer to Buyer. Buyer and its successors agree not to file,
without the prior consent of Sellers, such consent not to be unreasonably
withheld, a claim against any insurance policy of any Seller or any Affiliates
providing coverage for any period prior to the Closing Date.
ARTICLE IX
TERMINATION
9.1 GROUNDS FOR TERMINATION. This Agreement may
be terminated at any time prior to the Closing:
(i) by mutual written agreement of Sellers and Buyer;
(ii) by Buyer, in the event Sellers materially breach this
Agreement, and fail to correct such breach in all material respects within
ten (10) days of receipt of notice from Buyer specifying such breach in
reasonable detail;
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(iii) by BP, in the event Buyer materially breaches this
Agreement, and fails to correct such breach in all material respects
within ten (10) days of receipt of notice from Sellers specifying such
breach in reasonable detail;
(iv) by either Buyer or BP if the Closing shall not have been
consummated by December 31, 1993, or such later date as mutually agreed to
in writing by Buyer and Sellers (the "Termination Date"); PROVIDED,
HOWEVER, that neither Buyer nor Seller may terminate this Agreement
pursuant to this clause (iv) if the Closing shall not have been
consummated by the Termination Date by reason of the failure of such party
to perform in all material respects any of its cove nants or agreements
contained in this Agreement;
(v) by BP, if at any time BP, in its sole and absolute
discretion, determines that it is not satisfied with the progress which
Buyer has made in obtaining the financing necessary to consummate the
transactions contemplated hereby;
(vi) by BP, if on or prior to September 10, 1993 Buyer has not
delivered to BP a written commitment letter executed by one or more
commercial banks evidencing such banks' commitment to provide financing to
the Buyer in an amount not less than $75,000,000 in connection with the
transactions contemplated hereby; or
(vii) by BP or the Buyer, if on or prior to August 22, 1993, the
Sellers and the Buyer have not executed the amendment to this Agreement
contemplated by Section 10.13 hereof.
If this Agreement is terminated by mutual consent or other than by
reason of a party's default, then neither party shall have a claim for Damages
as a result of the termination. A party rightfully terminating this Agreement as
a result of the other party's material breach shall retain any claim it may have
for Damages arising from such breach.
ARTICLE X
MISCELLANEOUS
10.1 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other
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communication hereunder shall be deemed duly given (i) if personally delivered,
when so delivered, (ii) if mailed, two Business Days after having been sent by
registered or certified mail, return receipt requested, postage prepaid and
addressed to the intended recipient as set forth below, (iii) if given by telex
or telecopier, once such notice or other communication is transmitted to the
telex or telecopier number specified below and the appropriate answer back or
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through a reputable overnight delivery service
in circumstances to which such service guarantees next day delivery, the day
following being so sent:
If to BP, TA or TAFSI, to:
BP Exploration & Oil Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Real Estate Manager
Telecopier:
Copy to: BP Exploration & Oil Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Corporate Secretary
Telecopier: 216/586-4535
If to Buyer, to: T.S. Network Corp.
x/x Xxx Xxxxxxx Xxxxx, X.X.
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Copy to: The Clipper Group, L.P.
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
Copy to: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
Either party may give any notice, request, demand, claim or other
communication hereunder using any other means
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(including ordinary mail or electronic mail), but no such notice, request,
demand, claim or other communication shall be deemed to have been duly given
unless and until it actually is received by the individual for whom it is
intended. Either party may change the address to which notices, requests,
demands, claims and other communications hereunder are to be delivered by giving
the other party notice in the manner herein set forth.
10.2 AMENDMENTS; WAIVERS; REMEDIES.
(a) Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by Buyer and Sellers, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by either party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant hereunder or affect
in any way any rights arising by virtue of any prior or subsequent occurrence.
No single or partial exercise by either party in exercising any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
10.3 EXPENSES. Sellers will pay any and all expenses associated with
obtaining consents (including, without limitation, the consent of Burger King)
to the assignment of any Contracts to the Buyer. Sellers shall also pay the
Permit Costs. (As used herein, "Permit Costs" means those amounts to be paid to
any Governmental Authority in connection with the transfer of any Permit to
Buyer or Buyer obtaining a substitute or replacement Permit; pro vided, that
Permit Costs shall not include any amounts paid to any Governmental Authority
which are in the nature of a bonding requirement or similar requirement.) The
Sellers, on the one hand, and the Buyer, on the other hand, shall share equally
the fees and expenses of counsel retained by the management of the Business (the
"Management"); provided that any such fees and expenses in excess of $50,000
shall be borne by the Management. The costs, fees and expenses of obtaining
surveys and title insurance and the costs, fees and expenses of recording
mortgages on the Real Property shall be borne by the Buyer. Except as otherwise
provided herein, all costs, fees and expenses incurred in connection with this
Agreement shall be paid by the party incurring the same.
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10.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
10.5 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal laws (and not the conflict of laws) of the
State of New York; PROVIDED, HOWEVER, that the validity of the conveyance of
Real Property shall be governed by the law of the state in which the Real
Property is situated.
10.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be deemed an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto.
10.7 ENTIRE AGREEMENT. This Agreement, together with the
Confidentiality Agreement (including the documents, schedules and exhibits
referred to herein which are hereby incorporated by reference), constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect to the subject matter of this
Agreement.
10.8 JURISDICTION. Each of the parties hereto irrevocably submits to
the jurisdiction of any state or federal court sitting in the County of New
York, State of New York, in any action or proceeding arising out of or relating
to this Agreement, agrees that all claims in respect of the action or proceeding
may be heard and determined in any such court, or to contest the jurisdiction
(in rem or in personam) or power or decision of such court over or pertaining to
the party or with respect to the subject matter in any other court within or
without the United States other than appropriate appellate courts. Each of the
parties hereto irrevocably waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety,
or other security that might be required of the other party hereto with respect
thereto.
10.9 CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
10.10 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any Person, place
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or circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable or void, the remainder of this Agreement and such
provisions as applied to other Persons, places and circumstances shall remain in
full force and effect only if, after excluding the portion deemed to be
unenforceable, the remaining terms shall pro vide for the consummation of the
transactions contemplated hereby in substantially the same manner as originally
set forth at the later of the date this Agreement was executed or last amended.
10.11 CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against either
party. Whenever required by the context, any gender shall include any other
gender, the singular shall include the plural and the plural shall include the
singular. The headings contained in this Agreement are for reference purposes
only and shall not effect in any way the meaning or interpretation of this
Agreement. Whenever the word "including" is used in this Agreement, it shall be
deemed to mean "including, without limitation," "including, but not limited to"
or other words of similar import such that the items following the word
"including" shall be deemed to be a list by way of illustration only and shall
not be deemed to be an exhaustive list of applicable items in the context
thereof.
10.12 TAXES.
(a) PAYMENT OF TRANSFER AND SALES TAXES AND FEES. All Taxes
imposed on the transactions contemplated hereby, including any sales and use
Taxes (including personal property sales and use Taxes) and any real property
transfer, conveyance, documentary, stamp and recording Taxes or charges, shall
be borne by Sellers. Subject to the immediately preceding sentence, as to any
special or general assessments against any of the Purchased Assets which are
payable in installments, Buyer shall be responsible for all assessments which
relate to periods after the Effective Time. In the event the use by Buyer of any
of the Purchased Assets qualifies for exemption from otherwise applicable taxes
covered under this section, Buyer shall provide Seller with all appropriate
exemption certificates in support of such exemption.
(b) TAXES AND ASSESSMENTS. All real estate and personal
property taxes and assessments for which Sellers, and not a third party, are
liable accruing prior to the Closing Date shall be prorated (based on the most
recent available tax statement and latest tax valuation) as of the
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Closing Date. If the Closing Date occurs before the tax rate is fixed for the
then current year, the proration of the corresponding taxes shall be estimated
on the basis of the tax rate for the last preceding year applied to the latest
assessed valuation. Buyer shall be responsible for making all real estate and
personal property tax and assessment payments due and payable after the Closing
Date. Sellers' estimated accrued liability (to the Closing Date) for such taxes
and assessments due and payable after the Transfer Date shall be a credit
against the amount payable at Closing by Buyer. In the event the tax rate for
the year of the Closing Date differs from that used to estimate the proration of
the real estate and personal property taxes, Sellers and Buyer agree to adjust
such proration upon receipt of the next tax statement issued.
(c) OTHER TAXES. (i) Except as otherwise provided in
Paragraphs (a) and (b) of this SECTION 10.12, Sellers shall be responsible for
and shall pay all Taxes accrued or ultimately imposed upon any part of the
Purchased Assets and Inventory on the basis of taxable events or activities or
in connection with the ownership, use or operation of any part of the Purchased
Assets and Inventory prior to the Closing Date, and Buyer shall be responsible
for and shall pay all Taxes accrued or ultimately imposed upon any part of the
Purchased Assets and Inventory on the basis of taxable events or activities or
in connection with the ownership, use or operation thereof after the Closing
Date. Buyer shall reimburse BP for all federal, state and local taxes listed in
Section 10.12 of the Disclosure Schedule that have been paid by BP on any
Inventory transferred to Buyer pursuant to this Agreement and for which
reimbursement to Buyer shall be made by the ultimate purchaser of the Inventory.
(d) REFUNDS. With respect to any pending or subsequently filed
claim for refund of Taxes on or in respect of periods ending on or prior to the
Closing Date only, or any suit or suits for refund of such taxes, Buyer agrees
that Sellers will retain complete discretion to prosecute, settle or abandon on
behalf of Sellers Group each of such claims or suits at Sellers' expense.
(i) Buyer further agrees to provide Sellers with all
reasonable cooperation on obtaining such refund and to make the records
and personnel available to assist Sellers or any counsel designated by
Sellers to prosecute any such claim or suit for refund.
(ii) In the event that any refund of Taxes is received
by the Buyer in respect of periods
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ending on or prior to the Closing Date, Buyer will promptly pay to Sellers
an amount equal to such refund plus any interest received on such refund.
(e) ASSISTANCE AND RECORDS. Buyer shall provide Sellers with
assistance as Sellers may reasonably request in connection with the preparation
of tax returns required to be filed by Sellers, any audit or other examination
by any taxing authority, any judicial or administrative proceedings relating to
liability for Taxes, or any claim for refund in respect of such Taxes.
(i) Sellers will retain complete discretion in
conducting and resolving any audit, administrative or judicial proceeding
with respect to periods ending on or before the Closing Date relating to
Taxes. Buyer will promptly notify Sellers of any such audit, proposed
adjustment or related matter that could affect Sellers' tax liability.
(ii) In accordance with Section 6.4, Buyer will upon the
request of Sellers, provide any records or information which may be
relevant to such return, audit, examination, proceeding or claim.
(f) Such assistance shall include making employees available
to Sellers and their counsel, providing additional information and explanation
of any material to be provided, furnishing to or permitting the copying by
Sellers or their counsel, of any records, returns, schedules, documents, work
papers or other relevant materials which might reasonably be expected to be used
in connection with such return, audit, examination, proceeding or claim.
(g) Sellers agree to reimburse Buyer for all out-of-pocket
costs which Buyer may reasonably incur pursuant to this SECTION 10.12(C).
(h) UTILITIES, RENTS AND OTHER CHARGES. Utilities, rents, and
any other charges for which Sellers, and not a third party, are liable relating
to any part of the Assets or in connection with the use or operation thereof
shall be prorated between Sellers and Buyer as of the Closing Date. To the
extent that prorations can be calculated or estimated on or before the Closing
Date, any amounts owed by either party shall be paid to the other party as an
adjustment to the Closing Amount payable by Buyer. Calculations of any other
prorations shall be made as soon as possible, but in no event later than ninety
(90) days after Closing, and any remaining adjustment obligations shall be paid
promptly upon demand. Any amounts unpaid within five (5) Business Days after
demand shall begin to
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accrue interest at the Reference Rate, which shall be added to and paid with
such amounts. Buyer shall be obligated for rents, utilities or other charges
related to the Assets attributable to periods from and including the Closing
Date.
10.13 EXHIBIT AND SCHEDULES. As of the date of this Agreement, the
Sellers and Buyer have not agreed to the form of the Exhibits and Schedules
hereto. The Sellers and the Buyer will attempt to agree upon an amendment to the
Agreement pursuant to which the form of such Exhibits and Schedules (other than
Section 4.9 of the Disclosure Schedule, as to which the amendment shall specify
a date by which the parties shall agree upon Section 4.9 of the Disclosure
Schedule) and any qualifications of representa tive are agreed upon by the
Sellers and Buyer and become a part of this Agreement. In the event that the
Sellers and the Buyer do not execute such an amendment on or prior to August 22,
1993 each of Sellers and the Buyer shall have the right to terminate this
Agreement as provided in Section 9.1(vii).
10.14 NO THIRD PARTY BENEFICIARIES. Neither this Agreement nor any
provision hereof (including, without limitation, Section 6.12 hereof) is
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
10.15 NO INDUCEMENTS. Neither Sellers nor the Buyer has made any
promises or inducements in connection with this Agreement, the Business or the
Purchased Assets except as expressly set forth in this Agreement, and neither
Sellers nor the Buyer may rely on any such alleged promises or inducements which
are not expressly set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Asset
Purchase Agreement to be duly executed by their respective authorized officers
or representatives as of the day and year first above written.
BP EXPLORATION & OIL INC.
By: /s/ X.X. Xxxx
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Name: X.X. Xxxx
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Title: Vice President, Strategic Development
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TRUCKSTOPS CORPORATION OF AMERICA INC.
By: /s/ X.X. Xxxx
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Name: X.X. Xxxx
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Title: Vice President, Strategic Development
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T.S. NETWORK CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title: President
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