EXHIBIT 10.37
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PETRO STOPPING CENTERS, X.X.
XXXXX FINANCIAL CORPORATION
as Issuers,
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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SUPPLEMENTAL INDENTURE
Dated as of July 23, 1999
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$135,000,000
10 1/2% Senior Notes Due 2007
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This SUPPLEMENTAL INDENTURE is dated as of July 23, 1999, between PETRO
STOPPING CENTERS, L.P., a Delaware limited partnership (the "Company") and PETRO
FINANCIAL CORPORATION, a Delaware corporation ("PFC," and together with the
Company, the "Issuers"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as Trustee (the "Trustee").
RECITALS
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WHEREAS, the Issuers and the Trustee entered into an Indenture, dated as of
January 30, 1997 (the "Indenture"), pursuant to which the Issuers issued
$135,000,000 in aggregate principal amount of 10 1/2% Senior Notes Due 2007,
which were subsequently exchanged for substantially identical 10 1/2% Senior
Notes Due 2007 that were registered under the Securities Act of 1933 (the
"Notes") (capitalized terms used herein without definition have the respective
meanings given to them in the Indenture);
WHEREAS, Section 8.2 of the Indenture provides that with the consent of the
Holders of not less than a majority in aggregate principal amount of the
outstanding Notes, the Issuers and the Trustee may enter into an indenture or
indentures supplemental to the Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any provisions of the
Indenture or of modifying in any manner the rights of the Holders under the
Indenture, including the definitions therein, except in certain cases where
consent of the Holder of each outstanding Note affected is required;
WHEREAS, the Issuers and the Trustee desire to amend the Indenture with the
consent of Holders of not less than a majority in aggregate principal amount of
the outstanding Notes;
WHEREAS, Holders of not less than a majority of the aggregate principal
amount of the outstanding Notes have consented to this Supplemental Indenture;
and
WHEREAS, concurrently with the execution and delivery of this Supplemental
Indenture, the "Recapitalization," as defined in the consent solicitation of the
Issuers, dated June 15, 1999, is occurring.
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Issuers and the Trustee covenant and
agree for the benefit of each other and for the equal and proportionate benefit
of the respective Holders of the Notes as follows:
ARTICLE I
Section 1.01. This Supplemental Indenture is supplemental to the Indenture
and does and shall be deemed to form a part of, and shall be construed in
connection with and as part of, the Indenture for any and all purposes,
including but not limited to discharge of the Indenture as provided in Article
IX of the Indenture.
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Section 1.02. Effective as of the date hereof:
(a) the definition of "Change of Control" shall be deleted in its
entirety and replaced with the following:
"Change of Control" means the occurrence of any of the following
events: (i) prior to a Public Equity Offering, either (A) the
Permitted Holders cease to be the "beneficial owner" (as such term is
used in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate of a majority of the Common Interests in
Holdings, whether as a result of issuance of securities of Holdings or
any parent company of Holdings, any merger, consolidation, liquidation
or dissolution of Holdings, any direct or indirect transfer of
securities by Holdings or otherwise or (B) any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act)
other than one or more Permitted Holders has the power or right to
designate a majority of the members of Holdings' Board of Directors;
(ii) after the consummation of a Public Equity Offering, (A) any
"person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the "beneficial owner" (as such term is used in Rules
13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause (ii) such person or group shall be deemed to have
"beneficial ownership" of all shares that any such person or group has
the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than
30% of the Common Interests in Holdings and (B) the Permitted Holders
"beneficially own" (as defined in this clause (ii)), directly or
indirectly, in the aggregate a lesser percentage of the total Common
Interests of Holdings than such other person or group; (iii) Holdings
ceases to own directly or indirectly at least 99% of the total voting
power and economic benefit of the Capital Interests of the Operating
Partnership; (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of Holdings (together with any new directors whose
election by the Board of Directors or whose nomination for election by
the stockholders of Holdings was approved by a vote of a majority of
the directors of Holdings then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute 66 2/3% of Holdings' Board of Directors then in
office; or (v) Holdings sells, conveys, transfers or leases (either in
one transaction or a series of related transactions) all or
substantially all of its assets to a Person other than a Restricted
Subsidiary of Holdings or a Successor Entity in which a majority or
more of the voting power of the Voting Interests is held by the
Permitted Holders.
Notwithstanding the foregoing, the "Recapitalization," as defined in the
consent solicitation of the Issuers, dated June 15, 1999, and the closing of the
transactions contemplated by the Recapitalization, shall not constitute a
"Change of Control" for purposes of the Indenture.
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(b) the definition of "Xxxxxxxx Group" shall be deleted in its
entirety and replaced with the following:
"Xxxxxxxx Group" means X.X. Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx, Xx.
and their respective spouses, lineal descendants, estates and
Affiliates, including Petro Inc. (a corporation wholly owned by X.X.
Xxxxxxxx, Xx.), JAJCO II, Inc. (a company wholly owned by Xxxxx X.
Xxxxxxxx, Xx.).
(c) the following provisions shall be added to Section 1.01 of the
Indenture:
"Holdings" means Petro Stopping Centers Holdings L.P., a Delaware
limited partnership.
"Volvo Trucks" means Volvo Trucks of North America, Inc. and its
Affiliates.
(d) the definition of "Permitted Holders" shall be deleted in its
entirety and replaced with the following:
"Permitted Holders" means (i) the Xxxxxxxx Group, (ii) Mobil Oil
and (iii) Volvo Trucks.
(e) the definition of "Public Equity Offering" shall be deleted in
its entirety and replaced with the following:
"Public Equity Offering" means any underwritten public offering
of Capital Interests of Holdings, the Company or a Successor Entity
pursuant to an effective registration statement (other than a
registration statement on Form S-4 or Form S-8 or any successor or
similar form) under the Securities Act.
(f) the definition of "Successor Entity" shall be deleted in its
entirety and replaced with the following:
"Successor Entity" means a corporation or other entity that
succeeds to and continues the business of Petro Stopping Centers, L.P.
or Holdings, as the case may be.
(g) Section 4.8(b)(vi) of the Indenture shall be deleted in its
entirety and replaced with the following:
(vi) the payment to Holdings of any dividend on the Capital
Interests in the Company in an amount sufficient to allow the
purchase, redemption, retirement or other acquisition for value by
Holdings of Capital Interests in Holdings held by employees or former
employees of Holdings, the Company or any Restricted Subsidiary (or
their estates or beneficiaries under their estates) upon death,
disability, retirement, termination of employment or pursuant to the
terms of any agreement under which such Capital Interests were issued;
provided that the
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aggregate amount of any such dividends does not exceed $750,000 in any
fiscal year; and
(h) a new Section 4.8(b)(viii) shall be added as follows:
(vii) the payment to Holdings of any dividend on the Capital
Interests in the Company in an amount sufficient to allow Holdings to
pay its reasonable operating expenses (including, but not limited to,
franchise fees, administrative expenses and expenses relating to any
filings made or to be made by Holdings with the SEC).
ARTICLE II
Section 2.01. Except as specifically modified herein, the Indenture and
the Notes are in all respects ratified and confirmed and shall remain in full
force and effect in accordance with their terms.
Section 2.02. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated in their entirety herein
and made applicable to the Trustee with respect hereto.
Section 2.03 The Trustee has accepted the amendment of the Indenture
effected by this Supplemental Indenture and agrees to execute the trust created
by the Indenture as hereby amended, but only upon the terms and conditions set
forth in the Indenture, including the terms and provisions defining and limiting
the liabilities and responsibilities of the Trustee, and without limiting the
generality of the foregoing, the Trustee shall not be responsible in any manner
whatsoever for or with respect to any of the recitals or statements contained
herein, all of which recitals or statements are made solely by the company and
the Subsidiary Guarantor, or for or with respect to (a) the validity or
sufficiency of this Supplemental Indenture or any of the terms or provisions
hereof, (b) the proper authorization hereof by the company and the Subsidiary
Guarantor by corporate action or otherwise, (c) the execution hereof by the
Company and the Subsidiary Guarantor, (d) the consequences (direct or indirect
and whether deliberate or inadvertent) of any amendment herein provided for, and
the Trustee makes no representation with respect to any such matters and (e) the
validity or sufficiency of the Solicitation or the consent solicitation
materials or procedure in connection therewith.
Section 2.04. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATION LAW, BUT OTHERWISE WITHOUT REGARD TO
CONFLICT OF LAW RULES. THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
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XXX XXXX XX XXX XXXX IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS SUPPLEMENTAL INDENTURE, AND IRREVOCABLY ACCEPT FOR
THEMSELVES AND IN RESPECT OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. THE ISSUERS IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT THAT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY
JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE TRUSTEE OR ANY HOLDER OF THE NOTES TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE ISSUERS IN ANY OTHER JURISDICTION.
Section 2.05. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
PETRO STOPPING CENTERS, L.P.
By:__________________________________
Name:
Title:
PETRO FINANCIAL CORPORATION
By:__________________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:______________________________
Name:
Title:
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