EX-2.1 2 a13-18224_1ex2d1.htm EX-2.1 ASSET PURCHASE AGREEMENT - LGP
Exhibit 2.1
ASSET PURCHASE AGREEMENT - LGP
THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is entered into as of the 7th day of August, 2013, with an effective date of August 7, 2013 (the “Effective Date”), by and among LEHIGH GAS PARTNERS LP, a Delaware limited partnership (“LGP”), LEHIGH GAS WHOLESALE LLC, a Delaware limited liability company (“LGW”), LGP REALTY HOLDINGS LP, a Delaware limited partnership (“LGP Realty”), and LEHIGH GAS WHOLESALE SERVICES, INC., a Delaware corporation (“LGWS and together with LGP, LGW and LGP Realty, collectively the “Purchaser”), on the one part, and XXXXXXXXXXX X. XXXXXXX, XXXXXXXXX X. XXXXXXX (together with Xxxxxxxxxxx X. Xxxxxxx, “Liposky”), XXXXXX PETROLEUM, INC., a Tennessee corporation (“Xxxxxx Petroleum”), X. X. XXXXXX FAMILY LIMITED PARTNERSHIP, a Tennessee limited partnership (“RFLP”), KEYMAN LIMITED PARTNERSHIP #1, a Tennessee limited partnership (“Keyman 1”), KEYMAN LIMITED PARTNERSHIP #2, a Tennessee limited partnership (“Keyman 2”), KEYMAN LIMITED PARTNERSHIP #3, a Tennessee limited partnership (“Keyman 3”), and KEYMAN LIMITED PARTNERSHIP #6, a Tennessee limited partnership (“Keyman 6”), all having a principal office at 0000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 (collectively the “Sellers” and individually a “Seller”), on the other part.
WHEREAS, Sellers presently own and operate various retail convenience stores, which include the retail sale of motor fuels, at various locations in Tennessee and Virginia and are in the process of selling all of their interest in the real and personal property comprising such stores; and
WHEREAS, simultaneously herewith, Xxxxxx Petroleum, as seller, on the one part, and Lehigh Gas — Ohio, LLC (“LGO”), as purchaser, on the other part, are executing a certain Asset Purchase Agreement (the “LGO Asset Purchase Agreement”) pursuant to which, inter alia, the purchaser thereunder will, at closing thereunder, which shall be simultaneous with the Closing under this Agreement, purchase certain assets and assume certain liabilities from the seller thereunder in connection with the Locations; and
“Agreement” has the meaning set forth in the Preamble.
“Allocation” has the meaning set forth in Section 2.4.
“Asset Purchase Price” has the meaning set forth in Section 2.1.
“Assets” has the meaning set forth in Section 1.1.
“Assignment and Assumption of Purchased Leases” has the meaning set forth in Section 4.3(b).
“Assignment and Assumption of Tenant Leases” has the meaning set forth in Section 4.3(c).
“Assignment of Fund Proceeds” has the meaning set forth in Section 4.3(g).
“Assignment of ROFR’s and Options” has the meaning set forth in Section 4.3(f).
“Assignment of Trade Names” has the meaning set forth in Section 4.3(e).
“Assumed Liabilities” has the meaning set forth in Section 1.3.
“Basket” has the meaning set forth in Section 12.5.
“Xxxx of Sale” has the meaning set forth in Section 4.3(d).
“Books and Records” has the meaning set forth in Section 1.1(e).
“Cap” has the meaning set forth in Section 12.5.
“CERCLA” has the meaning set forth in Section 8.7(b).
“Closing” has the meaning set forth in Section 4.1.
“Closing Date” has the meaning set forth in Section 4.1.
“Code” has the meaning set forth in Section 5.10.
“Confidential Information” has the meaning set forth in Section 7.4.
“Confidentiality Agreement” has the meaning set forth in Section 7.4.
“Consents” has the meaning set forth in Section 7.3.
“Deeds” has the meaning set forth in Section 4.3(a).
“Deposit” has the meaning set forth in Section 2.2.
“Due Diligence Expiration Date” has the meaning set forth in Section 7.1.
“Effective Date” has the meaning set forth in the Preamble.
“Environmental Assets” has the meaning set forth in Section 8.7(d).
“Environmental Disclosures” has the meaning set forth in Section 8.7(a).
“Environmental Escrow” has the meaning set forth in Section 8.7(d).
“Environmental Escrow Agreement” has the meaning set forth in Section 8.7(d).
“Environmental Laws” has the meaning set forth in Section 8.7(b).
“ESA” has the meaning set forth in Section 7.1.
“Escrow Agent” has the meaning set forth in Section 2.2.
“Escrow Agreement” has the meaning set forth in Section 2.2.
“Excise Taxes” has the meaning set forth in Section 4.5.
“Excluded Assets” has the meaning set forth in Section 1.2.
“Excluded Liabilities” has the meaning set forth in Section 1.4.
“Excluded Personal Property” has the meaning set forth in Section 1.2(i).
“Exclusion” has the meaning set forth in Section 8.7(e).
“Exxon Station Consent” has the meaning set forth in Section 4.3(t).
“Fee/Leased Locations” has the meaning set forth in the Preamble.
“Financial Information” has the meaning set forth in Section 5.9.
“FIRPTA” has the meaning set forth in Section 5.7.
“Fiscal Year” has the meaning set forth in Section 4.6.
“Freight Hauling Agreement” has the meaning set forth in Section 4.3(q).
“Fuel Equipment” has the meaning set forth in Section 1.1(d).
“Fund Proceeds” has the meaning set forth in Section 1.1(f).
“GAAP” has the meaning set forth in Section 5.9.
“Hazardous Substances” has the meaning set forth in Section 8.7(b).
“Indemnified Party” has the meaning set forth in Section 12.4.
“Indemnifying Party” has the meaning set forth in Section 12.4.
“Inspection Defects” has the meaning set forth in Section 7.1.
“Keyman 1” has the meaning set forth in the Preamble.
“Keyman 2” has the meaning set forth in the Preamble.
“Keyman 3” has the meaning set forth in the Preamble.
“Keyman 6” has the meaning set forth in the Preamble.
“Knowledge” means with respect to each Seller, the collective knowledge after due inquiry of Xxxxxx X. Xxxxxx, Xxxxxxxxxxx X. Xxxxxxx and Xxxx Xxxxx.
“Known Pollution” has the meaning set forth in Section 8.7(c).
“LGO” has the meaning set forth in the Preamble.
“LGO Asset Purchase Agreement” has the meaning set forth in the Preamble.
“Law” or “Laws” shall mean all applicable local, state, or federal laws, statutes, ordinances, or administrative or judicial decisions.
“Letter of Intent” has the meaning set forth in Section 2.5.
“Liposky” has the meaning set forth in the Preamble.
“Location” or “Locations” has the meaning set forth in the Preamble.
“LOI Payment” has the meaning set forth in Section 2.5.
“Loss Notice” has the meaning set forth in Section 12.4.
“Managed Location” has the meaning set forth in the Preamble.
“Material Adverse Change” has the meaning set forth in Section 9.2(g).
“Material Adverse Effect” has the meaning set forth in Section 9.2(g).
“Material Contracts” has the meaning set forth in Section 5.17.
“Matrix” has the meaning set forth in Section 8.5.
“New Pollution” has the meaning set forth in Section 8.7(e).
“New Title Defect” has the meaning set forth in Section 8.9.
“Non-Compete and Non-Solicitation Agreement” has the meaning set forth in Section 8.12.
“Notice Period” has the meaning set forth in Section 12.4.
“Permitted Encumbrances” means (i) real estate taxes assessed for the Fiscal Year in which the Closing takes place and not yet due and payable, which taxes shall be adjusted as provided in this Agreement; (ii) all building and zoning Laws, rules and regulations affecting the Purchased Owned Real Properties and Purchased Leased Real Properties; (iii) parties in possession other than the applicable Seller pursuant to the Tenant Leases; and (iv) existing easements for telephones and utilities and existing rights of way for public streets and highways.
“PLL Policy” has the meaning set forth in Section 8.7(e).
“Property and Business Studies and Analysis” has the meaning set forth in Section 7.1.
“Property Taxes” has the meaning set forth in Section 4.6.
“Purchased Leased Real Properties” has the meaning set forth in Section 1.1(a)(ii).
“Purchased Leases” has the meaning set forth in Section 1.1(a)(ii)
“Purchased Owned Real Properties” has the meaning set forth in Section 1.1(a)(i).
“Purchaser” has the meaning set forth in the Preamble.
“Purchaser Agreed Damages” has the meaning set forth in Section 10.4.
“Purchaser Documents” has the meaning set forth in Section 6.1.
“Purchaser Indemnitees” has the meaning set forth in Section12.1.
“Purchaser Non-Compete Agreement” has the meaning set forth in Section 8.13.
“Purchaser’s Representatives” has the meaning set forth in Section 7.2.
“RCRA” has the meaning set forth in Section 8.7(b).
“Real Properties” has the meaning set forth in Section 1.1(a)(ii).
“Remedial Measures” has the meaning set forth in Section 8.7(c).
“RFLP” has the meaning set forth in the Preamble.
“ROFR’s and Options” has the meaning set forth in Section 1.1(h)
“Xxxxxx Petroleum” has the meaning set forth in the Preamble.
“Seller” and “Sellers” have the meaning set forth in the Preamble.
“Sellers Agreed Damages” has the meaning set forth in Section 10.2.
“Seller Documents” has the meaning set forth in Section 5.1.
“Seller Employees” shall have the meaning set forth in Section 5.12.
“Sellers Indemnitees” has the meaning set forth in Section 12.2.
“Settlement Statement” has the meaning set forth in Section 4.3(h).
“Subway Leases” has the meaning set forth in Section 9.1(e).
“Tangible Personal Property” has the meaning set forth in Section 1.1(b).
“TDEC” means the Tennessee Department of Environment and Conservation.
“Tenant Leases” has the meaning set forth in Section 1.1(c).
“Title Commitment” and “Title Commitments” have the meaning set forth in Section 8.9.
“Title Company” has the meaning set forth in Section 8.9.
“Title Defect” has the meaning set forth in Section 8.9.
“Total Consideration” has the meaning set forth in Section 2.1.
“Unknown Pollution” has the meaning set forth in Section 8.7(e).
“UST Fund” has the meaning set forth in Section 8.7(b).
“Wholesale ROFO Agreement” has the meaning set forth in Section 4.3(r).
I. PURCHASE AND SALE OF ASSETS
(a) The following real property and interest therein:
(i) Any real property owned by a Seller comprising the Locations more particularly described on Schedule 1.1(a)(i), together with all buildings and improvements erected thereon and any easements, rights-of-way or use, privileges, licenses, variances, non-conforming use rights, development rights and approvals, zoning rights and approvals, hereditaments, appurtenances, interests and other rights belonging to or inuring to the benefit of such parcel of land and any and all right, title and interest of the Seller in and to any land lying in the bed of any highway, street, road or avenue, opened or proposed, abutting or adjoining such parcels of land, subject only to the Permitted Encumbrances (collectively, the “Purchased Owned Real Properties”);
(ii) Any real property leases, including all rights and interests of any Seller under any ground lease, with a Seller as lessee and a third party, unaffiliated with any Seller, as lessor (the “Purchased Leases”) more particularly described on Schedule 1.1(a)(ii), covering the Locations more particularly described on Schedule 1.1(a)(ii), (collectively, the “Purchased Leased Real Properties” and, together with the Purchased Owned Real Properties, the “Real Properties”);
(b) All buildings and other improvements, together with all machinery, fixtures, equipment, car wash equipment, heating, plumbing, electrical, lighting, ventilating and air-conditioning equipment (excluding Fuel Equipment) owned by a Seller and now situated at the Locations (collectively, the “Tangible Personal Property”);
(c) The leases and other agreements with tenants of the Real Properties, as listed on Schedule 1.1(c) (collectively, “Tenant Leases”);
(d) All fuel fixtures and equipment now attached to or used in connection with the Purchased Owned Real Properties and Purchased Leased Real Properties, including
without limitation all petroleum pumps and dispensers, underground and aboveground fuel storage tanks, canopies, fuel lines, fittings and connections used in the ordinary course of business to receive, store and/or dispense fuels as described on Schedule 1.1(d) (collectively, the “Fuel Equipment”);
(e) All plans, specifications, construction documents, blueprints, real estate files, environmental studies and reports, inspection reports, surveys, underground storage tank registrations and reports, financial records (which shall consist of copies of such records for the past year and subsequent periods pertaining to the business conducted by Sellers at each Location), and government compliance files in any Seller’s possession or control now or as of the Closing related solely to any buildings and improvements at the Fee/Leased Locations or the Sellers’ operations at the Real Properties (collectively, the “Books and Records”);
(f) Rights to proceeds from any state petroleum storage tank fund for claims relating to a Location, except those that relate to Remedial Measures (as defined in Section 8.7 below) previously paid for or accrued by a Seller for claims relating to a Location (the “Fund Proceeds”); and (ii) condemnation proceeds relating to a Location or access to or parking for a Location received by a Seller before or after the Effective Date of this Agreement that relate to relocation or repairs that have not been done by the Seller;
(g) The trade names “Zoomerz,” “Zoomerz Freezie,” “The Original Energy Drink,” “PureJava,” and “Pure Java the Original Energy Drink” and all derivatives thereof, and any and all related trademarks and trade dress;
(h) The rights of first refusal and/or purchase options as listed on the attached Schedule 1.1(h) (collectively, the “ROFR’s and Options”);
(i) The Motor Fuel Supply Agreement (Branded) dated April 15, 2011, by and between Xxxxxx Petroleum, Inc. and Mountain View Express, LLC (the “Mountain View Supply Agreement”); and
(j) All other assets of Sellers, and rights, claims, causes of action, judgments and warranties (express or implied) in favor of the Sellers, relating to any or all of the Assets or otherwise relating to the operation of the Locations.
(a) All minute books and other corporate records of any Seller and its affiliates;
(b) All insurance policies and proceeds thereof payable to a Seller or its affiliates (except to the extent of, and subject to, the provisions of this Agreement regarding a casualty loss to the Locations following the date hereof);
(c) All cash, cash equivalents, refunds and accounts receivable of a Seller and its affiliates;
(d) All tax refunds, credits and benefits with respect to the Assets to the extent the same relate to periods before the Closing;
(e) Sellers’ beer permits and lottery agreements;
(f) All trademarks, patents, copyrights and other intellectual property of a Seller and its affiliates, except the trade names “Zoomerz,” “Zoomerz Freezie,” “The Original Energy Drink,” “PureJava,” and “Pure Java the Original Energy Drink” and all derivatives thereof, and any and all related trademarks and trade dress, which are being conveyed to Purchaser as set forth in Section 1.1(g) above;
(g) All deposits and prepaid expenses for which a Seller is not given credit pursuant to Section 4.7 hereof;
(h) All properties, assets, rights and business interests of Sellers and their respective affiliates situated at sites other than the Locations;
(i) All personal property owned by any third-party at the Locations as particularly identified on Schedule 1.2(i) as being vendor supplied or leased (the “Excluded Personal Property”);
(j) All reimbursements to which any Sellers are entitled under any state petroleum storage tank fund for Remedial Measures (as defined in Section 8.7 below) previously paid for or accrued by Sellers for claims relating to a Location;
(k) All records, files, ledgers, journals, tax returns, tax records, business and financial records, and the like of each Seller (excluding the Books and Records);
(l) Xxxxxx Petroleum’s wholesale gas distribution business, including its consignment sales operations, and all assets thereof, the Subway restaurants operated by Xxxxxx Petroleum and all assets thereof, Xxxxxx Petroleum’s agreement with Exxon-Mobil (subject to the Exxon Station Consent), Xxxxxx Petroleum’s wholesale lubricants distribution business and Xxxxxx Petroleum’s blending operation;
(m) The claim against the Town of Mosheim described in Schedule 5.4; and
(n) The assets to be sold under the LGO Asset Purchase Agreement.
III. Intentionally Omitted.
IV. CLOSING, DELIVERIES AND ADJUSTMENTS
4.1 Closing. Subject to the satisfaction or waiver of all conditions to the obligations of the parties set forth in Article IX below and elsewhere in this Agreement (other than conditions with respect to actions the parties will take at Closing), the purchase and sale of the Assets (the “Closing”) shall occur on a date and time as designated in writing by Purchaser and Sellers, which shall be no later than September 30, 2013; provided, however, that in addition to the rights to extend Closing set forth in Sections 8.7(e) and 9.2(l) below, Sellers or Purchaser may with the consent of the other and by written notice to the other no later than five (5) business days before Closing, extend Closing fifteen (15) business days. The Closing will be held at the offices of the Title Company or at such other location as the parties may agree, and to the extent feasible, the Closing will be held by Federal Express or the electronic exchange of documents in pdf format or by facsimile, without the principals present. The Closing will occur simultaneously with the closing under the LGO Asset Purchase Agreement. The actual date as of which the Closing occurs is referred to herein as the “Closing Date.”
(a) a Tennessee General Warranty deed executed by the applicable Seller with respect to each Purchased Owned Real Property in form and substance reasonably acceptable to Sellers and Purchaser, conveying good and marketable title to each such property subject only to the Permitted Encumbrances (the “Deeds”);
(b) an Assignment and Assumption of the Purchased Leases executed by the applicable Seller of each Purchased Leased Real Property subject only to the Permitted Encumbrances, with consent of the appropriate third party, if required, substantially in the form attached hereto as Exhibit 4.3(b) (the “Assignment and Assumption of Purchased Leases”);
(c) an Assignment and Assumption of the Tenant Leases, executed by the applicable Seller with consent of the appropriate third party, if required, substantially in the form attached hereto as Exhibit 4.3(c) (the “Assignment and Assumption of Tenant Leases”);
(d) a Xxxx of Sale for the Tangible Personal Property, Fuel Equipment, and Books and Records executed by the applicable Seller substantially in the form attached hereto as Exhibit 4.3(d) (the “Xxxx of Sale”);
(e) an Assignment of the trade names “Zoomerz,” “Zoomerz Freezie,” “The Original Energy Drink,” “PureJava,” and “Pure Java the Original Energy Drink” and all derivatives thereof, and any and all related trademarks and trade dress, substantially in the form attached hereto as Exhibit 4.3(e) (the “Assignment of Trade Names”);
(f) an Assignment of the ROFR’s and Options, substantially in the form attached hereto as Exhibit 4.3(f) (the “Assignment of ROFR’s and Options”);
(g) an Assignment of the Fund Proceeds, substantially in the form attached hereto as Exhibit 4.3(g) (the “Assignment of Fund Proceeds”);
(h) a settlement statement executed by Sellers showing all components of the Total Consideration and itemizing the closing costs and pro rations contemplated by this Agreement (the “Settlement Statement”);
(i) with respect to each of the Seller entities, a copy of a certificate of existence for each such Seller from the Tennessee Secretary of State dated as of a date reasonably close to the Closing Date;
(j) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of each of the Seller entities who are legal entities certifying that (i) attached thereto are true and complete copies of the duly executed resolutions of each Seller (which will consist of an unanimous consent of all Directors and shareholders of Xxxxxx Petroleum and an unanimous consent of all general partners of the Sellers who are limited partnerships) which authorize (a) the transactions contemplated by this Agreement, and (b) the execution by such Seller of this Agreement and the documents, instruments and agreements to be executed and delivered by such Seller pursuant to this Agreement, together with proof as to the authority of the person(s) executing and delivering this Agreement and such documents, instruments and agreements on such Seller’s behalf; and (ii) all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
(k) executed FIRPTA certificates from each Seller;
(l) an Affidavit of Sellers certifying that the representations and warranties of Sellers set forth in this Agreement are true and correct in all respects on the Closing Date;
(m) the Environmental Escrow Agreement (as set forth in Section 8.7(d) below);
(n) the Non-Compete and Non-Solicitation Agreement (as set forth in Section 8.12 below);
(o) the $100,000.00 or lesser required amount to fund the Sellers’ share of the premium for the PLL policy pursuant to Section 8.7;
(p) the Subway Leases (as set forth in Section 9.1(e) below);
(q) a freight hauling agreement between Xxxxxx Petroleum and Purchaser in the form attached hereto as Exhibit 4.3(q) (the “Freight Hauling Agreement”);
(r) a right of first offer on Xxxxxx Petroleum’s wholesale business in the form attached hereto as Exhibit 4.3(r) (the “Wholesale ROFO Agreement”);
(s) the Purchaser Non-Compete Agreement to be delivered pursuant to Section 8.13;
(t) a Consent to Transfer Agreement regarding certain Exxon stations in the form attached hereto as Exhibit 4.3(t) (the “Exxon Station Consent”);
(u) an Assignment and Assumption of the Mountain View Supply Agreement, executed by the applicable Seller with consent of the appropriate third party, if required, substantially in the form attached hereto as Exhibit 4.3(u) (the “Assignment and Assumption of Mountain View Supply Agreement”); and
(v) such other documents and instruments as Purchaser may reasonably require.
(a) immediately available funds in the amount of the Total Consideration referred to in Section 2.1 hereof, less the LOI Payment pursuant to Section 2.5, and less the Deposit (which shall be paid Sellers pursuant to Section 2.2 hereof);
(b) if delivered by Sellers to Purchaser pursuant to Section 4.3 above, the Assignment and Assumption of the Purchased Leases, the Assignment and Assumption
of Tenant Leases, the Assignment of Trade Names, the Assignment of ROFR’s and Options, Assignment of Fund Proceeds, the Environmental Escrow Agreement, the Non-Compete and Non-Solicitation Agreement, the Settlement Statement, the Subway Leases, the Freight Hauling Agreement, the Wholesale ROFO Agreement, the Exxon Station Consent, the Purchaser Non-Compete Agreement, the Assignment and Assumption of Mountain View Supply Agreement and any other Purchaser Documents;
(c) with respect to Purchaser, if applicable, a copy of a certificate of existence for Purchaser from the applicable State Corporation Commission (or other applicable governmental entity) dated as of a date reasonably close to the Closing Date;
(d) a TDEC Notification for Underground Storage Tanks listing Purchaser as the owner of the Fuel Equipment;
(e) appropriate resolutions of each Purchaser authorizing the transactions contemplated by this Agreement;
(f) an Affidavit of Purchaser certifying that the representations and warranties of Purchaser set forth in this Agreement are true and correct in all respects on the Closing Date;
(g) a commitment from an insurer reasonably acceptable to Sellers for the PLL policy required under Section 8.7; and
(h) such other documents and instruments as Sellers may reasonably require.
Purchaser. All installments of Property Taxes having a due date before the Closing Date shall be paid by the applicable Seller before the Closing Date and Purchaser shall pay all installments of Property Taxes having a due date on or after the Closing Date. At the Closing, the net amount of all Property Tax adjustments computed according to this Section, based upon which party is responsible for such Property Taxes and which party is to pay such Property Taxes, shall be added to or deducted from the Total Consideration. Purchaser shall hereby assume and shall following the Closing pay, discharge and satisfy all installments of Property Taxes due after the Closing. If the amount of any Property Taxes is not fixed and determined as of the Closing, the foregoing Closing adjustment shall be based on the amount thereof as reasonably estimated at Closing.
4.7 Rents, Prepaid Expenses and Security Deposits. Rents, prepaid expenses, and similar items relating to the Assets and benefiting Purchaser shall be prorated between the parties as of the date of Closing. To the extent that any Purchased Lease or Tenant Lease requires payment of additional rent, percentage rental, real estate taxes, insurance and other lease charges, including any amounts calculated based on sales or gross or net income or cost of goods, the applicable Seller shall be responsible for the same to the extent the same accrue related to periods before and ending as of the Closing Date for the applicable Location, and Purchaser shall be responsible and agrees to pay the same for periods after the Closing Date. All security deposits and other security held by the Seller in connection with the Tenant Leases, if any, shall be credited to Purchaser at Closing and Purchaser shall receive a credit against the Asset Purchase Price equal to the amount of such credits. All security deposits held by the fee owners/landlords of the Purchased Leased Real Properties shall be assigned to Purchaser with the Purchased Leases and the amount of such security deposits shall be credited to the Seller at Closing. All deposits made by Seller and held by any party granting any of the ROFR’s and Options shall be assigned to Purchaser with the ROFR’s and Options and the amount of such deposits shall be credited to the Seller at Closing.
4.8 Intentionally omitted.
V. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller covenants and represents to Purchaser, intending for Purchaser to rely thereon, that the following are true, correct and complete as of the date hereof, that the following shall be true, correct and complete as of Closing, and that the following representations and warranties shall survive Closing as set forth below:
executed by one or more Sellers being hereinafter referred to, collectively, as the “Seller Documents”).
5.9 Financial Information. Sellers have previously delivered to Purchaser the financial information described in Schedule 5.9 (the “Financial Information”). The Financial Information (i) has been prepared in accordance with generally accepted accounting principles of the United States of America consistently applied, as in effect from time to time (“GAAP”); and (ii) fairly presents, in all material respects, the financial position presented by such Financial Information for the time periods represented by such Financial Information.
(a) From December 31, 2012 to the date of this Agreement, (i) the respective Seller’s operations at the Locations have been conducted in all material respects in the ordinary course; (ii) no employee of such Seller has been granted any general salary or benefits increase other than in the ordinary course of business; (iii) no Seller has acquired any business, by merger or consolidation, purchase of substantial assets or equity interests, or by any other manner, in a single transaction or a series of related transactions relating to the Locations or Assets, or entered into any contract, letter of intent or similar arrangement with respect to the foregoing other than this Agreement; (iv) no Seller has sold, leased or otherwise disposed of any of its properties or assets that are material to any Seller’s operations at the Locations; and (v) there has been no material change by any Seller in accounting principles, practices or methods except as required by Law or GAAP.
(b) To Sellers’ Knowledge, each Seller maintains internal controls over financial reporting sufficient to provide reasonable assurance regarding the reliability of Financial Information in accordance with GAAP, including policies and procedures that (i) pertain to the maintenance of records that accurately and fairly reflect the transactions
and dispositions of the assets of such Seller in reasonable detail; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of such Seller are being made only in accordance with authorizations of management of such Seller; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of such Seller.
(a) Except as set forth on Schedule 5.12(a), there are no agreements, arrangements, or understandings that would restrict a Seller’s ability to terminate the employment or any or all of the Seller Employees for any lawful reason or for no reason
at all, without penalty or liability. No Seller is a party to, and there does not otherwise exist, any union, collective bargaining or similar agreement with respect to employees of a Seller. To the Knowledge of Sellers, there is no pending or threatened strike, work stoppage or work slowdown, relating to the Assets.
(b) Except as set forth on Schedule 5.12(b), no Seller presently has, or has had within the last five (5) years, any pension, profit sharing, deferred compensation, or other employee pension or health or welfare benefit plan or arrangement in which Seller Employees participate or have participated.
(c) To Sellers’ Knowledge, (i) each Seller is and has been in material compliance with all applicable federal and state laws respecting employment and employment practices, terms and conditions of employment, and wages and hours; (ii) each Seller is not and has not been engaged in any unfair labor practices; and (iii) each Seller has complied with all material applicable requirements of the Immigration and Reform and Control Act of 1986. There are no pending or, to the Knowledge of Sellers, threatened EEOC or DFEH claims, OSHA complaints, union grievances, wage and hour claims, unemployment compensation claims, workers’ compensation claims or the like filed by or relating to any Seller Employees.
such pleading filed against such Seller; (iii) been adjudicated a bankrupt or insolvent; (iv) been in receivership or dissolution; (v) made any assignment for the benefit of creditors; or (vi) admitted in writing its inability to pay its debts as they mature. Each Seller is current in its payments to any creditors of such Seller and is not delinquent in any material respect with respect to any such payments.
VI. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as follows:
referred to, collectively, as the “Purchaser Documents”) and to perform fully its obligations hereunder and thereunder.
VII. DUE DILIGENCE, TITLE EXCEPTIONS, CONSENTS AND DISCLAIMER OF WARRANTIES
7.1 Due Diligence. Until the forty-fifth (45th) day following the Effective Date (the “Due Diligence Expiration Date”), Purchaser and Purchaser’s Representatives (as defined below) shall have the right, without interfering with Sellers’ operations, to conduct due diligence with respect to the Assets and to satisfy itself as to the feasibility and acceptability of the Assets and the Fee/Leased Locations for the Purchaser’s intended use as a retail convenience store and gas station operation and to enter onto each of the Fee/Leased Locations (at reasonable times agreed to by the parties) to inspect and reasonably test the Fee/leased Locations and the other Assets, including all buildings, improvements and equipment located thereon. In addition, Sellers shall permit Purchaser and Purchaser’s Representatives reasonable access, upon twenty-four (24) hours advance notice, to each Seller’s premises, books, records, financial records and key personnel relative to the Seller’s Fee/leased Locations and the Assets and shall cause its key personnel to furnish Purchaser with such financial, operating and other information regarding the Seller’s subject business, the Assets, the Locations, contracts, liabilities, employees and properties as Purchaser may reasonably request. Purchaser’s analysis, inspection and testing may include, but shall not be limited to: soil analysis and borings, utility location availability, perc testing, geological testing, financial analysis, analysis for SEC (as hereinafter defined) compliance and any and all other tests, studies or analysis, which Purchaser, in its sole discretion, deems appropriate, provided however, that borings shall only be performed by mutual agreement of the parties (collectively, the “Property and Business Studies and Analysis”), copies of which shall be promptly forwarded to Sellers. The Property and Business Studies and Analysis may also include, at Purchaser’s discretion, Environmental Site Assessments (“ESA”) at the Fee/Leased Locations, provided the ESA conforms to Schedule 7.1 and applicable ASTM standards, does not damage or interfere with the operation of the Fee/Leased Locations and Purchaser provides Sellers with a copy of the ESA report promptly after the report is issued. At all times, Purchaser and Purchaser’s Representatives shall be covered by adequate insurance and shall comply with all applicable safety and other legal requirements. In the event that the Purchaser determines that the results of any analysis, inspection or testing of the Assets or the Property and Business Studies and Analysis are unacceptable (the “Inspection Defects”), in Purchaser’s sole discretion, Purchaser shall give Sellers written notice thereof, and Purchaser may, by further written notice delivered to the Sellers prior to the expiration of the Due Diligence Expiration Date, either (i) terminate this Agreement as to the specific Asset that has the Inspection Defect that applicable Seller has not corrected within thirty (30) days after Purchaser’s written notice of the existence of the Inspection Defect (but in no event later than ten (10) days before the Closing Date), and in that event, the Asset Purchase Price will be reduced based upon the portion of the Asset Purchase Price allocated to such excluded Asset(s) under
Section 2.4 above (or if a portion of the Asset Purchase Price is not allocated to the specific excluded Asset(s) under Section 2.4 above, by such amount as Sellers and Purchaser shall mutually agree); or (ii) waive as a condition to Purchaser’s obligations hereunder such Inspection Defect. For the purposes of this Section 7.1, Inspection Defects shall not consist of: (i) matters that would not (either individually or in the aggregate) have a Material Adverse Effect on the business and/or operations of any specific Location in the event Purchaser seeks to terminate this Agreement as to such Location (as opposed to a specific Asset other than such Location); or (ii) financial performance or results of operation at any Location that does not materially adversely vary from the Financial Information (as defined in Section 5.9 and set forth in Schedule 5.9) provided by Seller prior to the Effective Date, provided this exclusion shall not be applicable to the extent any such information provided prior to the Effective Date is materially incorrect or incomplete.
7.2 Conditions to Performance of Due Diligence. Purchaser and its representatives, agents, employees, contractors, engineers, surveyors, appraisers, consultants and attorneys (collectively, “Purchaser’s Representatives”) shall perform Purchaser’s due diligence at Purchaser’s sole and exclusive risk, cost, and expense. Purchaser’s Representatives shall be instructed to avoid conversations with any Seller’s employees, except to the extent Seller’s representative permits. Seller’s representative shall have the right to be present during such conversations. Purchaser shall be responsible and obligated for the repair of any damage and any reasonably advisable restoration of the Assets caused or necessary as a result of Purchaser’s due diligence and Property and Business Studies and Analysis. Such obligation shall survive the termination of this Agreement. The Purchaser’s Representatives performing Purchaser’s due diligence and feasibility inspections, investigations, assessments, tests, and studies shall be properly licensed and qualified and shall have obtained all appropriate permits therefore. Purchaser shall schedule all inspections, investigations, assessments, tests, and studies during normal business hours whenever feasible. Sellers shall have the absolute right to have a representative of Sellers accompany Purchaser and Purchaser’s Representatives while they are at the Fee/Leased Locations. Any entry by Purchaser or its Purchaser’s Representatives shall not unreasonably interfere with Sellers’ use of the Assets. Until repair or restoration shall be complete, Purchaser shall take all steps necessary to ensure that any conditions at the Fee/leased Locations created by Purchaser’s inspections, investigations, assessments, tests, and studies shall not interfere with the normal operation of the Fee/leased Locations or create any unreasonably dangerous, unhealthy, unsightly, or noisy conditions at the Fee/leased Locations. Purchaser shall protect, defend, indemnify, and hold Sellers harmless of, from, and against any and all losses, including, without limitation, mechanics’ liens, any reasonable attorneys’ fees, arising out of any entry by Purchaser or Purchaser’s Representatives on the Fee/Leased Locations. The foregoing indemnity obligation shall survive the Closing or any termination of this Agreement. If Purchaser’s due diligence reveals any condition at the Fee/leased Locations that in Purchaser’s judgment may require disclosure to any governmental agency or authority, Purchaser shall immediately notify Sellers thereof. In such event, the applicable Sellers, and not Purchaser, Purchaser’s Representatives, or anyone acting on Purchaser’s behalf, shall make such legal determinations regarding disclosures as such Seller deems appropriate.
7.3 Consents and Waivers. Sellers shall use reasonably diligent efforts to obtain the consents, waivers or other instruments or documents, if any, necessary for the sale, lease, transfer
or assignment of the Assets which are identified on the attached Schedule 5.3 (collectively, the “Consents, Waivers and Approvals”). If Sellers are unable to obtain any such Consents, Waivers and Approvals, then Sellers shall so notify Purchaser in writing no later than ten (10) business days before Closing, and Purchaser, at its sole option, may elect to: (i) delay Closing for thirty (30) days, or such further time as is reasonably necessary to permit Sellers to obtain such Consents, Waivers and Approvals, provided Sellers are diligently pursuing such Consents, Waivers and Approvals; or (ii) exclude any Asset with respect to which a Seller was unable to obtain applicable Consents, Waivers and Approvals from this Agreement by written notice to Sellers, and in that event, the Asset Purchase Price will be reduced based upon the portion of the Asset Purchase Price allocated to such excluded Asset(s) under Section 2.4 above (or if a portion of the Asset Purchase Price is not allocated to the specific excluded Asset(s) under Section 2.4 above, by such amount as Sellers and Purchaser shall mutually agree). Purchaser agrees to cooperate with Sellers in connection with Sellers’ efforts to obtain the Consents, Waivers and Approvals, provided that such cooperation shall not be deemed to include any obligation upon Purchaser to pay any money or to agree to any “Material Adverse Change” (as hereinafter defined) to the applicable Asset.
7.4 Confidential Information. Purchaser acknowledges that it has received or will, in connection with its due diligence efforts, receive information about the Locations and the Assets (the “Confidential Information”). The Purchaser agrees to continue to be bound by all agreements under which it received such Confidential Information, including that certain confidentiality agreement entered into before the date hereof between Purchaser and Matrix for the benefit of Sellers (the “Confidentiality Agreement”).
7.5 Purchaser Acknowledgements. Purchaser specifically acknowledges that, except for Sellers’ representations set forth in this Agreement, the Schedules attached hereto and the other Seller Documents, Purchaser is not relying on any representations or warranties of any kind whatsoever, express or implied, from any Seller, Matrix, or any director, officer, partner, employee, representative, broker or other agents of either of them, as to any matters concerning the Locations, the Assets and/or the business conducted therewith, including: (a) the condition or safety of the Assets or Real Properties or any improvements thereon, including plumbing, sewer, heating and electrical systems, roofing, air conditioning, if any, foundations, soils and geology, lot size, or suitability of the Real Properties or its improvements for a particular purpose; (b) whether the appliances, if any, plumbing or utilities are in working order; (c) the habitability or suitability for occupancy of any structure and the quality of its construction; (d) the fitness or condition of any personal property; (e) whether the fixtures or improvements, including the Fuel Equipment, are structurally sound, in good condition, or in compliance with applicable Laws; (f) the profits or losses relating to operations at the Locations; (g) the legal or tax consequences of this Agreement or the transactions contemplated hereby; (h) the environmental condition of the Real Properties, including but not limited to the possible presence of petroleum products and/or hazardous substances in, under or near the Real Properties; and (i) the completeness or accuracy of any information provided to Purchaser by Sellers or their agents. Purchaser understands the legal significance of the foregoing provisions and acknowledges that they are a material inducement to Sellers’ willingness to enter into this Agreement.
7.6 Disclaimer of Other Representations and Warranties. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS BEEN GIVEN, OR WILL BE GIVEN, THE OPPORTUNITY TO EXAMINE ALL ASPECTS OF THE REAL PROPERTIES AND OTHER ASSETS AND TO REVIEW ALL FILES CONCERNING THE LOCATIONS MAINTAINED BY THE APPLICABLE SELLER AND ITS ENVIRONMENTAL CONSULTANTS AND ALL FEDERAL AND STATE AGENCIES HAVING JURISDICTION OVER THE LOCATIONS. ACCORDINGLY, PURCHASER AGREES THAT THE ASSETS SHALL BE SOLD AND THAT PURCHASER SHALL ACCEPT POSSESSION OF THE ASSETS AT CLOSING STRICTLY ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE TOTAL CONSIDERATION EXCEPT FOR ADJUSTMENTS EXPRESSLY CONTEMPLATED BY THIS AGREEMENT AND THAT, EXCEPT FOR EACH SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT, THE SCHEDULES ATTACHED HERETO AND THE SELLER DOCUMENTS, THE SALE OF ASSETS AND OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF PROFITABILITY, INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SELLERS DO HEREBY DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY.
VIII. ADDITIONAL AGREEMENTS AND COVENANTS
8.1 Landlord Estoppels. Prior to Closing, Sellers shall exert their good faith efforts to obtain from the fee owner under each Purchased Leased Real Property an estoppel in the form attached as Exhibit 8.1.
8.2 Announcements. Before Closing, neither Sellers nor Purchaser shall make any public announcements concerning the execution and delivery of this Agreement or the transactions contemplated hereby without first obtaining the prior written consent of the other, except as may be required by applicable Law or agreement with any securities exchange, and except that that Purchaser may disclose this Agreement to its lender or potential lender(s) and Sellers may disclose this Agreement to any lender holding a lien on any property subject to this Agreement and to any landlord or landlord lender in order to comply with Sellers’ obligations hereunder, and Sellers or Purchaser may disclose the identity of the other party and terms of this Agreement to its employees, vendors, outside counsel or other outside professionals on a need to know basis in connection with consummating this transaction. Sellers may disclose the identity of Purchaser (without disclosing Purchase Price). If a disclosure is required by a fuel supplier agreement or applicable Law or agreement with any securities exchange, the disclosing party shall make reasonable efforts to afford the other party an opportunity to review and comment on the proposed disclosure before the making of such disclosure.
8.3 Insurance and Casualty. Sellers covenant and agree to keep the Assets insured, at Sellers’ expense, in such amounts as presently insured through the Closing. On any material damage to or destruction of any of the Real Properties or any portion thereof before Closing, the
Closing shall, at the applicable Seller’s sole discretion, nevertheless proceed; provided, however, that unless before Closing the same shall have been restored by such Seller or Seller’s landlord to its condition as of the date hereof, at the Closing, the Seller shall pay over or assign to Purchaser any insurance proceeds due Seller as a result of such damage or destruction (without recourse to Seller) and Purchaser shall assume responsibility for such repair and receive a credit against the Total Consideration for the respective property for any applicable policy deductible or uninsured damage up to a maximum credit equal to the difference between the amount of the Total Consideration for the respective property and the amount of the insurance proceeds payable to such Seller and assigned to Purchaser.
8.4 Condemnation. If before Closing, any part of the Real Properties is taken, or noticed for taking, by eminent domain, Sellers shall promptly give Purchaser written notice thereof and the Closing shall at the applicable Seller’s sole discretion nevertheless proceed; provided, however, such Seller shall, at the Closing, deliver to Purchaser the net proceeds of any award or other proceeds of such taking which may have been collected by the Seller before the Closing or, if the award or other proceeds have not been fully collected, deliver to Purchaser an assignment (without recourse to Seller) of Seller’s right to any such award or other proceeds which may be payable as a result of any such taking, and Purchaser shall pay the full Total Consideration without offset or reduction.
8.5 Matrix; Payment of Brokers. Purchaser acknowledges that Sellers have retained Matrix Capital Markets Group, Inc. (“Matrix”) to act as its financial advisor in connection with the sale of the Assets and the transactions contemplated by this Agreement. Sellers shall be responsible for any fees due to Matrix. Purchaser shall be responsible for any brokerage commission or other fees legally determined to be due to any broker or advisor claiming by, through or under Purchaser and, as between Sellers and Purchaser, shall also be responsible for any loss, liability, damage, cost or expense (including, without limitation, reasonable attorneys’ fees) paid or incurred by Sellers by reason of any claim to any broker’s, finder’s or other fee in connection with the transactions contemplated by this Agreement by any such broker or advisor, except to the extent that it is conclusively determined in a judicial proceeding that such fee is payable as a result of an express contract or undertaking by Sellers to pay the same.
8.6 Mutual Cooperation. From and after the date hereof and until the date of Closing:
(a) Purchaser hereby covenants and agrees with Sellers that Purchaser shall use its reasonable efforts to cause the consummation of the transactions contemplated hereby according to the terms and conditions hereof, and Sellers hereby covenant and agree with Purchaser that Sellers shall use their reasonable efforts to cause the consummation of the transactions contemplated hereby according to the terms and conditions hereof.
(b) Sellers shall use reasonable efforts to obtain the written consent to the transfer or assignment to Purchaser of any of the Assets, where the consent of any other party may be legally required for such assignment and transfer. Purchaser agrees to cooperate fully with Sellers to secure such consents, including supplying information about Purchaser as may be requested by third parties, if applicable.
(c) Sellers and Purchaser shall each prepare any and all documentation and supply any and all information required by any governmental authority or agency thereof to be filed by Purchaser or any Seller, as the case may be, before conveying the Assets as contemplated hereby, and shall timely make the necessary filings or applications relating thereto. Purchaser and Sellers each agrees to cooperate with the other in the completion, execution and submission of any such filings or applications.
(d) Intentionally omitted.
8.7 Environmental Responsibilities.
(a) To the best of Sellers’ knowledge, Sellers have provided or will provide to Purchaser within ten (10) business days after the Effective Date: (i) all material environmental compliance records for the Locations; (ii) a true and complete copy of each environmental report or environmental data compilation that refers or relates to any of the Locations (the “Environmental Reports”); and (iii) all copies of any material correspondence to or from Sellers and the TDEC, the Federal Environmental Protection Agency, any other local, state or federal environmental agency or any third party that refers or relates to the environmental condition of any of the Locations, to the extent such documents are in any Seller’s, or any Seller’s contractors’ or consultants’, possession or control. For compliance and other such records not in any Seller’s control, Sellers shall (i) use reasonable, good faith efforts to secure copies of any applicable records in the possession or control of contractors and consultants any Seller has used for such purposes within the past five (5) years; and (ii) cooperate with Purchaser and authorize the release of any applicable records in the possession or control of contractors and consultants any Seller has used for such purposes at any time prior to the past five (5) years. In addition, at Closing, Sellers shall deliver compliance records for the time period between the initial delivery addressed above and the Closing. Collectively, all of the materials addressed in the Section 8.7(a) shall hereinafter be referred to as the “Environmental Disclosures.”
(b) Sellers covenant and represent that except as detailed in the Environmental Disclosures and except as specified on Schedule 8.7(b), (i) to Sellers’ Knowledge, the Locations are not contaminated by Hazardous Substances (as hereinafter defined) and are in compliance with all Environmental Laws (as hereinafter defined); (ii) to Sellers’ Knowledge, all past and present activities conducted on the Locations have complied in all material respects with all Environmental Laws; (iii) Sellers have not used, handled, stored, generated, produced, manufactured, treated, released, disposed of or arranged for disposal of any Hazardous Substances in, at, under, on or in connection with the Locations in violation of Environmental Laws; (iv) Sellers have no Knowledge of any previous owner or tenant of the Locations using, handling, storing, generating, producing, manufacturing, treating, releasing, disposing of or arranging for the disposal of any Hazardous Substances in, at, under, on or in connection with the Locations in violation of Environmental Laws which has not been previously remediated; and (v) Sellers have taken all necessary steps and filed all necessary documents so that each Location qualifies for coverage under the Tennessee Petroleum Underground Storage Tank Fund
(“UST Fund”). The term “Environmental Laws” means any federal, state or local statutes, regulations, laws or orders pertaining to environmental matters, including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). The term “Hazardous Substances” means polychlorinated biphenyls, asbestos, petroleum or petroleum by-products and any substances, materials, constituents, wastes, or other elements which are included under or regulated by any federal, state or local law, rule or regulation pertaining to environmental regulation, contamination, clean-up, or disclosure, including, without limitation, CERCLA and RCRA. Except as specified on Schedule 8.7(b), Sellers have not received any material claims, complaints, notices, or requests for information with respect to any alleged violation of, or alleged liability under, any Environmental Laws, rules, regulations or orders with respect to any of the Locations or any real estate adjacent to any of the Locations.
(c) To the extent the Environmental Disclosures, Schedule 8.7(b) or the ESA conducted by Purchaser identify any Hazardous Materials or violations of Environmental Laws that require Remedial Measures (as hereinafter defined), Purchaser, at the Closing, effective from and after the Closing, assumes and shall be responsible for the liability for such Hazardous Materials and violation of Environmental Laws and shall perform the Remedial Measures. The costs of any such Remedial Measures shall be paid from the Environmental Assets (as defined in Section 8.7(d) below). “Remedial Measures” shall consist of those activities required by Environmental Laws and by the TDEC to investigate, assess and/or remediate such releases in order to comply with all applicable Law, Environmental Laws, and regulatory requirements. “Remedial Measures” do not include activities that exceed what is required by Law, Environmental Law, the TDEC or other applicable governmental agencies for the existing use of the Locations. Sellers and Purchaser shall cooperate with each other in Purchaser’s performance of the Remedial Measures, including execution of documents that may be necessary to obtain reimbursement from the Environmental Assets. For the purposes of this Section 8.7, the Hazardous Materials and violation of Environmental Laws that are identified in the Environmental Disclosures, Schedule 8.7(b) or the ESA, which require Remedial Measures, shall be hereinafter referred to as “Known Pollution.”
(d) “Environmental Assets” as used in this Section 8.7 shall consist of: (i) costs for Remedial Measures attributable to Known Pollution that are recoverable, using best efforts, from the UST Fund, and (ii) costs placed in the Environmental Escrow as defined below. An environmental escrow in an amount agreed on by Purchaser and Sellers (the “Environmental Escrow”) pursuant to an environmental escrow agreement (the “Environmental Escrow Agreement”) shall be created at Closing from Sellers’ proceeds for Remedial Measures for Known Pollution that are not recoverable from the UST Fund, if any, including the applicable deductible under the UST Fund. Any funds not so used shall be refunded to Sellers. The Environmental Escrow shall not include matters for which Sellers are providing indemnification under Section 8.7(g).
(e) With respect to any Hazardous Materials in existence as of the Closing not identified as Known Pollution (hereinafter “Unknown Pollution”), Purchaser shall
procure Pollution Legal Liability Insurance (the “PLL Policy”) with terms, limits and deductibles customary for this type of transaction. Such PLL Policy, to the extent available in the marketplace, shall cover remediation costs and third-party liability for Unknown Pollution as well as third-party liability for Known Pollution and shall identify Sellers as an additional insured. The PLL Policy may also include coverage for Hazardous Materials requiring Remedial Measures where such Hazardous Materials first occur after Closing (“New Pollution”). Sellers shall pay one hundred thousand dollars ($100,000.00) towards the premium for the PLL Policy at Closing; provided however, that the amount of such payment shall be reduced by ten thousand dollars ($10,000.00) per each site Purchaser drills for an ESA prior to Closing that results in required remediation. A binding commitment to issue the PLL Policy shall be obtained by Purchaser at least fifteen (15) days prior to the Closing, and a copy of such commitment shall promptly be provided to Sellers. In the event such commitment contains a specific exclusion from coverage for a Location or a specific material Asset at a Location that would otherwise be of the type or kind of property or matter covered by a pollution legal liability insurance policy (an “Exclusion”), Sellers may at their option, elect in writing to either: (i) conduct a Phase II investigation regarding the Exclusion and perform any required remediation, at Sellers’ cost, with any and all responsibility or obligation of Sellers’ regarding the Exclusion terminating upon receipt of a no further action letter or notification from the TDEC or other appropriate governmental body; or (ii) enter into a separate environmental escrow agreement with Purchaser regarding the Exclusion containing reasonable terms and conditions and in a reasonable amount agreed upon by Sellers and Purchaser. The Closing Date shall be extended for a reasonable time to allow Sellers and Purchaser, as applicable, to complete the action required as a result of Sellers’ election of alternative (i) or (ii). In the event Sellers elect to pursue alternative (i), Sellers shall be entitled to the $10,000.00 reduction in their $100,000.00 payment towards the premium for the PLL Policy for each site Sellers have drilled. In the event Sellers fail to elect between alternatives (i) and (ii) within thirty (30) days of being provided with notice of the Exclusion, the parties agree that the Exclusion shall be deemed an Inspection Defect under Section 7.1 of this Agreement and Purchasers shall have the options provided it thereunder.
(f) In addition to the Purchaser’s assumption of the responsibility for Known Pollution at Closing under Section 8.7(c), Purchaser, at the Closing, effective after the Closing, assumes and shall be responsible for all liability for Hazardous Materials and compliance with Environmental Laws and Remedial Measures relating to the Locations or Assets, or both, arising or discovered from and after the Closing. Purchaser hereby agrees to indemnify, defend and hold Sellers and their respective parent, affiliates, subsidiaries, lender(s), successors and assigns and each of their respective owners, members, shareholders, partners, directors, officers, managers, employees and agents harmless from and against any and all losses, actions, suits, claims, demands, judgments, liabilities, damages, penalties, costs (including without limitation court costs and costs of appeal) and expenses (including without limitation reasonable attorneys’ fees and costs and fees and costs of expert witnesses and consultants) incident to, resulting from, or in any way arising out of or in connection with (i) any costs associated with Remedial Measures required by Environmental Laws to address Known Pollution, Unknown
Pollution, and/or New Pollution; and/or (ii) any tort claim or other third-party claim for damages due and owing in connection with Known Pollution, Unknown Pollution, and/or New Pollution, where such claim(s) is first asserted after Closing. Such indemnification shall include reasonable costs incurred by Sellers for investigating, preparing or defending any litigation or proceeding, commenced or threatened, incident to the enforcement of the Purchaser’s indemnification obligations hereunder. This Section 8.7(f) shall survive Closing.
(g) Seller Indemnification. Each Seller hereby agrees to indemnify, defend and hold each Purchaser and its respective parent, affiliates, subsidiaries, lender(s), successors and assigns and each of their respective owners, members, shareholders, partners, directors, officers, managers, employees and agents harmless from and against any and all losses, actions, suits, claims, demands, judgments, liabilities, damages, penalties, costs (including without limitation court costs and costs of appeal) and expenses (including without limitation reasonable attorneys’ fees and costs and fees and costs of expert witnesses and consultants) incident to, resulting from, or in any way arising out of or in connection with (i) any misrepresentation under Sections 8.7(a) or 8.7(b) of this Agreement; and/or (ii) any tort claim or other third-party non-governmental claim for damages due and owing in connection with Known Pollution where such claim(s) was known by Seller and asserted prior to Closing; and/or (iii) any fines, penalties or other governmental assessments for any violation(s) of Environmental Laws and/or Laws pertaining to Hazardous Materials constituting Known Pollution, where such violation(s) occurred prior to Closing and are not recoverable from the UST Fund. Such indemnification shall include reasonable costs incurred by Purchaser for investigating, preparing or defending any litigation or proceeding, commenced or threatened) incident to the enforcement of the Seller’s indemnification obligations hereunder. Each Seller’s responsibility for providing indemnification to Purchaser pursuant to this Section 8.7(g) shall be limited to matters relating to or arising from the Locations or Assets it sold and transferred to Purchaser. Xxxxxx Petroleum shall be jointly and severally responsible with each of the respective Sellers for each respective Seller’s indemnification obligations to Purchaser pursuant to this Section 8.7(g). This Section 8.7(g) shall survive Closing.
8.8 Lease Assignment. In the event that any Sellers are unable to assign any of the Purchased Leases for any reason, the applicable lease shall be removed from the Assets to be sold and the Asset Purchase Price shall be reduced by the amount allocated to such Purchased Leased Real Property as set forth on Schedule 2.4.
8.9 Title and Survey Review.
(a) Purchaser shall have obtained title insurance commitments for each of the Real Properties (individually a “Title Commitment” and together the “Title Commitments”) and copies of all exception documents referenced therein, naming Purchaser as the proposed insured for an owner’s title insurance policy in the amount of the Purchase Price allocated to each Real Property. The cost of such Title Commitments and title insurance shall be paid by Purchaser. The Title Commitments shall be issued by
Chicago Title Insurance Company or other insurer chosen by Purchaser (the “Title Company”). Purchaser shall have reviewed and approved, in Purchaser’s sole discretion, all encumbrances, exceptions, requirements, terms, conditions and other matters contained in or disclosed by the Title Commitments and confirmed to its satisfaction that it can obtain any and all endorsements and modifications to the Title Commitments reasonably required by Purchaser in Purchaser’s sole discretion, and Purchaser shall obtain a closing “xxxx-up” of the Title Commitments creating a legally binding obligation to issue a policy of title insurance with Purchaser and, if requested by Purchaser, Purchaser’s lender(s) as the insured(s). Purchaser may obtain, at Purchaser’s cost and expense, an ALTA survey of each of the Real Properties reasonably acceptable to Purchaser certified to such parties as Purchaser may require which shows and discloses no encroachments onto the Real Property shown on such Survey or over the boundaries of the Real Property, and no easements or other matters that would adversely affect Purchaser’s intended use of the Real Property. Any exceptions added by the Title Company to any Title Commitment after its review of a Survey shall be deemed New Title Defects. If, prior to the Closing Date, Purchaser discovers any condition of title not acceptable to Purchaser, in Purchaser’s sole discretion, (any such matter referred to hereinafter referred to as a “Title Defect”) including any raised by any updates to a Title Commitment which disclosed an exception or encumbrance not disclosed previously to Purchaser (any such matter referred to hereinafter referred to as a “New Title Defect”), Purchaser shall notify Sellers of same and the applicable Seller shall cure such Title Defect or New Title Defect. If the Title Defect or New Title Defect cannot be corrected in a manner acceptable to Purchaser prior to Closing, in Purchaser’s reasonable discretion, prior to the date set for Closing, Purchaser may, at its option and as its sole remedy: (i) remove the Real Property with the uncured Title Defect from the Assets purchased and reduce the Total Consideration by the portion of the Total Consideration allocated to such Real Property on Schedule 2.4; or (ii) accept title to the affected Real Property subject to such Title Defect or New Title Defect and proceed to Closing with the right to deduct from the Total Consideration the portion allocated to such Real Property of any liens or encumbrances constituting the Title Defect or New Title Defect of a definite or ascertainable amount and such Title Defect or New Title Defect shall be a Permitted Encumbrance.
(b) Store #68. In addition to the provisions Section 8.9(a) above, in the event that the Title Defect that exists in connection with Store #68 arising from or in connection with the claim against the Town of Mosheim described in Schedule 5.4 has not been resolved to the reasonable satisfaction of Purchaser by Closing, at the request of Purchaser, (i) Closing for Store #68 shall be deferred and the portion of the Total Consideration allocated to Store #68 on Schedule 2.4 shall be deducted from the Total Consideration due at Closing; (ii) Purchaser and the applicable Seller shall, at Closing, enter into a mutually acceptable lease for Store #68 until such time as the Title Defect arising from or in connection with the claim against the Town of Mosheim described in Schedule 5.4 is resolved to the reasonable satisfaction of Purchaser (not to exceed six months); and (iii) at the time the Title Defect arising from or in connection with the claim against the Town of Mosheim described in Schedule 5.4 is resolved to the reasonable satisfaction of Purchaser, the Purchaser and Sellers shall consummate the Closing for
Store #68 at which time the portion of the Total Consideration allocated to Store #68 on Schedule 2.4 shall be paid to Seller. In the event that the Title Defect is not resolved within six months, the above-referenced lease shall continue on a month-to-month basis and either party may thereafter terminate such lease by providing the other party with thirty (30) days written notice. The monthly rent for Store #68 in any such lease shall be as follows:
Month 1 |
|
$ |
9,750 |
|
Month 2 |
|
$ |
8,125 |
|
Month 3 |
|
$ |
5,958 |
|
Month 4 |
|
$ |
4,875 |
|
Month 5 |
|
$ |
3,792 |
|
Month 6 |
|
$ |
3,792 |
|
8.10 [RESERVED]
8.11 Additional Covenants of Sellers.
(a) Except as expressly provided herein, between the Effective Date and the Closing Date, the Sellers shall:
(1) maintain their respective corporate existence and operate in material compliance with all applicable laws and perform all of its obligations under agreements relating to or affecting the Locations or the Assets;
(2) maintain their tangible properties, assets and facilities in good operating order and condition, reasonable wear and tear excepted, in accordance with past practices;
(3) maintain their respective books and records in accordance with past practices, and use its best efforts to maintain in full force and effect all material licenses, permits, registrations and authorizations and all insurance policies and binders;
(4) carry on its operations in substantially the same manner as presently conducted and use its best efforts to preserve intact its present business and business organization and to maintain its relations and goodwill with the payors, suppliers, employees and others having a business relationship with it; and
(5) promptly advise Purchaser in writing of the commencement of, or the threat of, any material dispute, claim, action, suit, proceeding, arbitration or investigation by, against or affecting any Seller, the Assets or its operations, or any action taken or to be taken in connection with this Agreement or the ability of any Seller or Purchaser to consummate the transactions contemplated herein or therein.
(b) Except as otherwise expressly provided herein, between the Effective Date and the Closing Date, without the prior written consent of Purchaser, Sellers shall not:
(1) take any action or fail to take any action that would breach any of Sellers’ covenants contained herein or cause any of its representations or warranties to be untrue in any material respect if made immediately after such event or at Closing;
(2) make any material change in personnel, operations, finance or accounting policies or sell, exchange or otherwise dispose of any material asset or enter into any material contract, commitment, agreement or transaction;
(3) create, assume or permit to exist any new mortgage, pledge or other lien or encumbrance upon any of the Assets, whether now owned or hereafter acquired; or
(4) reduce Inventory except in the ordinary course of business consistent with past practices.
8.12 Non-Compete and Non-Solicitation Agreement. As further consideration for the Asset Purchase Price and the covenants and agreements of Purchaser set forth in this Agreement and the documents provided for herein, at Closing, Sellers shall cause Sellers, Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, as principals of the Sellers that are legal entities, and Xxxxxxxxxxx X. Xxxxxxx, a principal in Xxxxxx Petroleum and a Seller, to enter into a Non-Compete and Non-Solicitation Agreement in the form attached hereto as Exhibit 8.12 (the “Non-Compete and Non-Solicitation Agreement”).
8.13 Purchaser Non-Compete Agreement. At Closing, the Purchaser will execute the Purchaser Non-Compete Agreement in the form attached hereto as Exhibit 8.13 (the “Purchaser Non-Compete Agreement”), protecting Xxxxxx Petroleum’s current Exxon-Mobil branded accounts and prohibiting the solicitation of its employees (other than those working at the Locations and to be hired by Purchaser under Section 4.9).
IX. CONDITIONS PRECEDENT TO CLOSING.
(a) The representations and warranties made by Purchaser in this Agreement shall be true in all material respects when made and on and as of the Closing as though such representations and warranties were made on and as of Closing. Sellers shall have received from Purchaser at Closing a satisfactory certificate to such effect signed by an authorized officer of Purchaser.
(b) Purchaser shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Purchaser before or at Closing. Sellers shall have received from Purchaser at the Closing a satisfactory certificate to such effect, signed by an authorized officer of Purchaser.
(c) Purchaser shall have executed and delivered to Sellers at the Closing each of the Purchaser Documents and such additional documents as may be reasonably requested by Sellers in order to consummate the transactions contemplated by this Agreement.
(d) Purchaser shall have paid or made provisions acceptable to Sellers for the payment of all fees, costs and expenses for obtaining all environmental due diligence, surveys, title examinations, inventory audits, and other inspections performed in connection with the transfer of the Assets pursuant to this Agreement.
(e) Purchaser shall have executed a lease of or concession agreements regarding the Subways (2) locations the form of which is set out in Exhibit 9.1(e) (the “Subway Leases”), which shall grant the Purchaser the right to approve any subsequent sublease or assignment, which approval cannot be unreasonably withheld.
(f) At Closing, the Real Properties transferred shall constitute at least thirteen (13) of the Purchased Owned Real Properties and Purchased Leased Real Properties in aggregate.
(g) Sellers shall have received all consents required to consummate the transactions contemplated by this Agreement. Purchaser shall reasonably cooperate with Sellers in obtaining such consents.
(h) No action or proceeding before a court or any other governmental agency or body shall have been instituted or threatened to restrain or prohibit any of the transactions contemplated in this Agreement.
(i) Sellers’ obligations under this Agreement are conditioned and contingent upon the consummation of the LGO Asset Purchase Agreement simultaneously with or prior to Closing hereunder.
(a) The representations and warranties made by Sellers in this Agreement shall be true in all material respects when made and on and as of the date of Closing as though such representations and warranties were made on and as of Closing. Purchaser shall have received from Sellers at Closing satisfactory certificates to such effect signed by an authorized officer of each Seller.
(b) Sellers shall have performed and complied in all material respects with all provisions of this Agreement required to be performed or complied with by Sellers before or at Closing. Purchaser shall have received from Sellers at Closing satisfactory certificates to such effect signed by an authorized officer of each Seller.
(c) Sellers shall have executed and delivered to Purchaser at the Closing each of the Seller Documents and such additional documents as may be reasonably requested by Purchaser in order to consummate the transactions contemplated by this Agreement.
(d) The applicable Seller shall have executed a lease of the Subways (2) locations the form of which is set out in Exhibit 9.1(e).
(e) Purchaser shall have received the Title Commitments and surveys required under Section 8.9.
(f) At Closing, the Real Properties transferred shall constitute at least thirteen (13) of the Purchased Owned Real Properties and Purchased Leased Real Properties in aggregate.
(g) There shall not have been after the Effective Date: (i) any Material Adverse Change in any of the Seller’s operations at the Locations or any of the Assets; or (ii) any sale, assignment or transfer by any Seller of any of the Assets other than in the normal, regular and customary course of business. For purposes of this Agreement, wherever it is used, “Material Adverse Change” or “Material Adverse Effect” shall mean any event, occurrence, development or state of circumstances or facts which individually or in the aggregate has had or is reasonably expected to result in or have a material adverse effect upon the financial condition, results of operation, business, properties, prospects, condition or operations of a material portion of the Assets or the respective Seller’s operations at the Locations; provided, however, that in determining whether there has been a material adverse change or effect, any adverse effect attributable to the following shall be disregarded: (i) general economic business or financial market conditions, including, without limitation, conditions affecting generally the industries, businesses and customers served by the Locations; (ii) the announcement of this Agreement; (iii) the breach by Purchaser of this Agreement; or (iv) any change in legal requirements or generally accepted accounting principles or interpretations thereof that apply to the applicable Seller’s operation of the Locations.
(h) No action or proceeding before a court or any other governmental agency or body shall have been instituted or threatened to restrain or prohibit any of the transactions contemplated in this Agreement, and no governmental agency or body shall have taken any action or made any request of any party to this Agreement as a result of which Purchaser reasonably and in good faith determines that such action or request would be likely to prevent operation of the Locations substantially as presently conducted by the applicable Seller or which would be likely to Materially Adversely Effect the marketability or value of the Assets.
(i) Purchaser shall have obtained (i) state and county UCC searches regarding Sellers and the Assets showing no liens, encumbrances, easements or restrictions against any of the Assets other than those which Sellers agree to remove on or before Closing; and (ii) judgment, bankruptcy and tax lien searches confirming that there are no judgments or tax liens against the Sellers and/or the Assets which shall not be removed at Closing and that no Seller has been declared bankrupt.
(k) Purchaser’s obligations under this Agreement are conditioned and contingent upon the consummation of the LGO Asset Purchase Agreement simultaneously with or prior to Closing hereunder.
(l) Purchaser’s obligations under this Agreement are conditioned and contingent upon LGO obtaining prior to Closing from each local authority responsible for granting licenses or permits necessary to sell beer, ale and other malt beverages having an alcohol content of five percent (5%) by volume (“Beer Licenses”) either (i) the necessary Beer License for each Location; or (ii) agreements from such local authorities allowing LGO to sell beer, ale and other malt beverages after Closing pursuant to the Assistance and Operation Agreement(s) attached to the LGO Asset Purchase Agreement. If this condition is not satisfied by the Closing Date, Purchaser shall have the right to extend the Closing Date for up to forty-five (45) days by written notice to Seller no later than five (5) days before the Closing Date; provided that, notwithstanding Section 9.2(f) above, if LGO obtains Beer Licenses for a minimum of ten (10) Locations, it shall (assuming the other conditions of closing set forth in this Section 9.2 have been satisfied or waived by Purchaser) close on such Locations and Closing for the balance of the Locations shall be deferred until such time as LGO obtains Beer Licenses for such Locations and the portion of the Total Consideration allocated to the balance of the Locations on Schedule 2.4 shall be deducted from the Total Consideration due at Closing.
allocated to the Fee/Leased Location or Asset under Section 2.4 (or if a portion of the Asset Purchase Price is not allocated to the specific Asset under Section 2.4 above, by such amount as Sellers and Purchaser shall mutually agree). All matters concerning Title Defects or New Title Defects shall be exclusively governed by Section 8.9
in full settlement and discharge of all obligations of Sellers under this Agreement and Xxxxxx Petroleum under the LGO Asset Purchase Agreement, without further recourse in law or equity. The Purchaser and LGO (purchaser under the LGO Asset Purchase Agreement) shall agree among themselves as to the allocation of the Purchaser Agreed Damages between them. The provisions of this Section 10.4 shall survive the Closing or earlier termination of this Agreement.
10.5 Acknowledgement as to Liquidated Damages.
(a) PURCHASER AND SELLERS HEREBY ACKNOWLEDGE AND AGREE THAT, THE AMOUNT OF SELLERS’ DAMAGES IN THE EVENT OF A BREACH OF THIS AGREEMENT BY PURCHASER WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT AN AMOUNT EQUAL TO THE SELLERS AGREED DAMAGES IS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES SELLERS WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE AS A RESULT OF THE BREACH OR DEFAULT BY PURCHASER AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND UNDER THE CIRCUMSTANCES THAT SELLERS AND PURCHASER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. PURCHASER AND SELLERS HEREBY ACKNOWLEDGE THAT PURSUANT TO THE ESCROW AGREEMENT, ON SUCH A BREACH BY PURCHASER, THE ESCROW AGENT SHALL DELIVER THE DEPOSIT TO SELLERS, WHO SHALL APPLY THE DEPOSIT AS THE SELLERS AGREED DAMAGES.
(b) PURCHASER AND SELLERS HEREBY ACKNOWLEDGE AND AGREE THAT, THE AMOUNT OF PURCHASER’S DAMAGES IN THE EVENT OF A BREACH OF THIS AGREEMENT BY SELLERS WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT AN AMOUNT EQUAL TO THE PURCHASER AGREED DAMAGES IS THE PARTIES’ BEST AND MOST ACCURATE ESTIMATE OF THE DAMAGES PURCHASER WOULD SUFFER IN THE EVENT THE TRANSACTION PROVIDED FOR IN THIS AGREEMENT FAILS TO CLOSE AS A RESULT OF THE BREACH OR DEFAULT BY SELLERS AND THAT SUCH ESTIMATE IS REASONABLE UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT AND UNDER THE CIRCUMSTANCES THAT SELLERS AND PURCHASER REASONABLY ANTICIPATE WOULD EXIST AT THE TIME OF SUCH BREACH. PURCHASER AND SELLERS HEREBY ACKNOWLEDGE THAT ON SUCH BREACH BY SELLERS, (i) PURSUANT TO THE ESCROW AGREEMENT, THE ESCROW AGENT SHALL DELIVER THE DEPOSIT TO PURCHASER, AND (ii) SELLERS SHALL IMMEDIATELY PAY TO PURCHASER AND THE PURCHASER AGREED DAMAGES.
XI. POST CLOSING AGREEMENTS.
11.1 Performance by Sellers and Purchaser. Except as set forth in this Agreement, the Schedules attached hereto or the other Seller Documents (i) the representations, warranties, covenants and agreements of Sellers shall merge in the performance of Sellers at the Closing, and the delivery by Seller of the Seller Documents contemplated by Section 4.3 hereof shall constitute full performance of all of Sellers’ obligations hereunder; and (ii) none of the representations, warranties, covenants and agreements of Sellers shall survive the Closing. The obligations of Purchaser under this Agreement shall survive the Closing without limitation except as set forth in this Agreement, the Schedules attached hereto or the other Purchaser Documents.
11.2 Registrations. To the extent not completed as of Closing, Purchaser agrees to change all registration and licensing names in any way related to the Locations and/or operation of the business, including registration of the underground and aboveground fuel storage tanks, if any, at the Locations, with the appropriate federal, state and local agencies, promptly following the Closing but in all events within 30 days following the Closing Date. Purchaser also agrees to obtain, in Purchaser’s own name or in the name of Purchaser’s designee, and at Purchaser’s sole expense, all operating permits and licenses necessary for Purchaser’s operations at the Locations following the Closing.
11.3 Further Assurances; Cooperation. From and after the Closing, the parties shall take such acts and execute such documents and instruments as may be reasonably required to make effective the transactions contemplated hereby. On or after the Closing Date, the parties shall, on request, cooperate with one another by furnishing any additional information, executing and delivering any additional documents and instruments, including contract assignments, and doing any and all such other things as may be reasonably requested by the parties or their counsel to consummate or otherwise implement the transactions contemplated by this Agreement and to allow Purchaser to comply with any and all SEC rules and regulations related to the reporting of the transactions contemplated by this Agreement. To assist in the preparation of SEC disclosures and other reporting related to the transactions contemplated by this Agreement, the Seller agrees that it shall cooperate with Purchaser and it representatives, and shall provide Purchaser and its representatives with copies of and/or access to any and all spreadsheets, work papers and other relevant documents and information, as well as any auditor consents (if any), related to the financials of the Sellers, as may be necessary or desirable for the preparation and filing of complete and accurate disclosures and other reports with the SEC. Purchaser agrees to reimburse each Seller for its reasonable costs and expenses incurred by such Seller in connection with Purchaser’s preparation of SEC disclosures and other reporting related to the transactions contemplated by this Agreement.
11.4 The provisions of this Article XI shall survive Closing.
(collectively, the “Purchaser Indemnitees”) harmless from and against any and all losses, actions, suits, claims, demands, judgments, liabilities, damages, penalties, costs (including without limitation court costs and costs of appeal) and expenses (including without limitation reasonable attorneys’ fees and costs and fees and costs of expert witnesses and consultants) incident to, resulting from, or in any way arising out of or in connection with:
(a) any tort claim or breach of contract claim or other claim for money due and owing in connection with the ownership or operation of any of the Assets and/or Locations prior to or as of Closing; and/or
(b) any breach or default by any Seller of any representation, warranty, covenant or agreement of Sellers contained in this Agreement or in any other Seller Documents executed in connection herewith; and/or
(c) each Seller’s ownership, possession, use or occupancy of any of the Assets prior to or as of Closing not included in the Assumed Liabilities; and/or
(d) any liability of the Sellers not expressly assumed by Purchaser; and/or
(e) investigating, preparing or defending any litigation or proceeding (commenced or threatened) incident to the enforcement of the Sellers’ indemnification obligations hereunder.
The obligations of Sellers under this Section 12.1 shall survive Closing for a period of eighteen (18) months, except with respect to obligations of Sellers under this Section 12.1 pertaining to the representations and warranties of Sellers contained in Section 5.10 hereof, which obligations shall survive until six (6) months after the expiration of the applicable statute of limitations (including any waivers or extensions thereof), provided that such obligation shall not terminate as to any indemnification obligation for which Purchaser has provided Sellers written notification prior to the end of the applicable survival period.
(a) any tort claim or breach of contract claim or other claim for money due and owing in connection with the Purchase’s ownership or operation of any of the Assets and/or Locations after the Closing; and/or
(b) any breach or default by Purchaser of any representation, warranty, covenant or agreement of Purchaser contained in this Agreement or in any other documents executed in connection herewith; and/or
(c) the Purchaser’s ownership, possession, use or occupancy of any of the Assets after Closing; and/or
(d) investigating, preparing or defending any litigation or proceeding (commenced or threatened) incident to the enforcement of the Purchaser’s indemnification obligations hereunder.
The obligations of Purchaser under this Section 12.2 shall survive the Closing.
liability of the Indemnifying Party, when aggregated with all Indemnified Loss paid by the Indemnifying Party, shall not exceed the Cap. Except as hereinafter provided, in the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it will defend the Indemnified Party against such claim or demand, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings, and with competent, experienced and qualified legal counsel approved by the Indemnified Party, which consent shall not be unreasonably withheld. If any Indemnified Party desires to participate in any such defense, it may do so at its sole cost and expense. The Indemnified Party shall not settle a claim or demand without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld, settle, compromise or offer to settle or compromise any such claim or demand on a basis that would result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any affiliate thereof. If (i) the Indemnifying Party elects to settle any claim or demand, (ii) the terms of such proposed settlement are accepted by all interested third parties, (iii) the proposed settlement would neither result in any liability to or obligation of the Indemnified Party, or risk thereof, nor the imposition of any consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any affiliate thereof and (iv) the Indemnified Party refuses to consent to such compromise or settlement, then the liability of the Indemnifying Party to the Indemnified Party for such matter shall be limited to the amount offered by the Indemnifying Party in compromise or settlement. If the Indemnifying Party elects not to defend the Indemnified Party against such claim or demand, whether by not giving the Indemnified Party timely notice as provided above or otherwise, then the amount of any such claim or demand or, if the same be contested by the Indemnified Party, then that portion thereof as to which such defense is unsuccessful (and the reasonable costs and expenses including without limitation reasonable attorneys’ fees pertaining to such defense), shall be the liability of the Indemnifying Party hereunder; provided, however, that the amount of such costs and expenses, when aggregated with all Indemnified Loss paid by the Indemnifying Party, shall not exceed the Cap. To the extent the Indemnifying Party shall direct, control or participate in the defense or settlement of any third-party claim or demand, the Indemnified Party will give the Indemnifying Party and its counsel, without charge, access to, during normal business hours, the relevant business records and other documents, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party shall use its commercially reasonable efforts to assist and cooperate in the defense of all such claims or demands. Notwithstanding the foregoing, the Indemnified Party shall have the right to employ separate counsel at the Indemnifying Party’s expense and solely to control its own defense of such asserted liability if in the reasonable written opinion of counsel to the Indemnified Party, a conflict or potential conflict exists between the Indemnifying Party and the Indemnified Party that would make such separate representation necessary under the applicable canons of ethics; provided, however, that the Indemnified Party shall not settle or compromise any claim or demand without the consent of the Indemnifying Party, such consent not to be unreasonably withheld.
Agreement, respectively and as applicable, unless and until the total aggregate of all amounts from or due such party (including the Sellers and Xxxxxx Petroleum as a whole and Purchaser and LGO as a whole) before fees, expenses and costs of collection for any and all indemnification for any matter or matters under this Agreement and the LGO Asset Purchase Agreement equals or exceeds, in the aggregate, One Hundred Thousand Dollars ($100,000.00) (the “Basket”). The maximum total aggregate liability of Sellers for indemnification under Section 12.1 of this Agreement and Xxxxxx Petroleum under Section 12.1 of the LGO Asset Purchase Agreement shall be One Million Dollars ($1,000,000.00) and the maximum aggregate liability of Purchaser for indemnification under Section 12.2 of this Agreement and LGO under Section 12.2 of the LGO Asset Purchase Agreement, shall be One Million Dollars ($1,000,000.00) (each, the “Cap”). Notwithstanding the foregoing, the following shall not in any way be subject to either the Cap or the Basket set forth in this Section 12.5:
(i) any breach by Purchaser of the its obligations under Section 8.7;
(ii) any breach by Sellers of their obligations under Section 8.7;
(iii) any breach by Sellers of the representations and warranties set forth in Section 5.10; and
(iv) any indemnification resulting from fraud.
12.9. The provisions of this Article XII shall survive Closing.
13.6 Obligations of Parties; Successors and Assigns.
(a) Subject to following provisions, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. If more than one person or entity is named as Purchaser, the term “Purchaser” shall refer to each person or entity so named and any one or more of them in any combination, and the representations, warranties, covenants, obligations and liabilities of Purchaser herein shall constitute their joint and several representations, warranties, covenants, obligations and liabilities. If more than one person or entity is named as Sellers, the term “Sellers” shall refer to each person or entity so named and any one or more of them in any combination, and the representations, warranties, covenants, obligations and liabilities of Sellers herein shall, except as set forth in Section 8.7(g) and Article XII above, constitute their joint and several representations, warranties, covenants, obligations and liabilities.
(b) Without the prior written consent of Sellers and in Sellers’ sole discretion, Purchaser shall not, directly or indirectly, assign this Agreement or any of its rights hereunder. Any attempted assignment in violation hereof shall, at the election of Sellers,
be of no force or effect and shall constitute a default by Purchaser. Notwithstanding the foregoing, Purchaser may assign its rights under this Agreement (in whole or in part) without the prior written consent of Sellers subject to the following conditions: (i) such assignee must assume all of Purchaser’s obligations so assigned in a manner reasonably acceptable to Sellers and become jointly and severally liable with Purchaser for all such obligations; and (ii) at least five days before the proposed assignment, Purchaser shall provide Sellers with notice thereof and evidence that the foregoing conditions are satisfied.
(c) A Seller may assign this Agreement or any of its rights hereunder where such assignment is required, necessary or beneficial to facilitate a charitable contribution in which such Seller, or any one of them, is the donor.
defined therein, capitalized terms used in the Exhibits and Schedules to this Agreement shall have the meanings given to such terms respectively in the body of this Agreement.
prepaid) by certified mail (in this case, notice to be deemed given three days after mailing), or (d) delivered by a recognized commercial courier to the party entitled thereto at the address set forth below or such other address as such party shall have designated by five days’ notice to the other:
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X.X. Xxx 0000 | ||
Xxxxxx: |
Xxxxxxxxxx, XX 00000-0000 | ||
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Or via email at: | ||
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Xxxxxx X. Xxxxxxx | ||
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Xxxxx, Xxxxxx and Xxxxxxx Attorneys | ||
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Xxxxxxxxxx, Xxxxxxxxx 00000 | ||
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If to Purchaser, to: |
Xxxxx Xxxxxxxx, General Counsel | ||
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Lehigh Gas Partners LP | ||
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Xxxxxxxxx, XX 00000 | ||
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Or via email at: | ||
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Xxxxxxx & XxXxxxxx, P.C. | ||
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law or in equity, including the right to retain the Deposit as liquidated damages for such recording.
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XXXXXXXXX X. XXXXXXX | ||
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XXXXXX PETROLEUM, INC. | ||
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X.X. XXXXXX FAMILY LIMITED PARTNERSHIP, a Tennessee limited partnership | ||
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Schedules and Exhibits
Schedule A |
The Fee/Leased Locations and Managed Location |
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Schedule 1.1(a)(i) |
Purchased Owned Real Properties |
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Schedule 1.1(a)(ii) |
Purchased Leases and Purchased Leased Real Properties |
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Schedule 1.1(c) |
Tenant Leases |
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Schedule 1.1(d) |
Fuel Equipment |
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Schedule 1.1(h) |
ROFR’s and Options |
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Schedule 1.2(i) |
Excluded Personal Property |
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Schedule 1.3 |
Assumed Liabilities |
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Schedule 2.4 |
Allocation |
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Schedule 5.3 |
Sellers’ Consents, Waivers and Approvals |
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Schedule 5.4 |
Litigation |
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Schedule 5.8 |
Violations of Laws or Permits |
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Schedule 5.9 |
Financial Information |
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Schedule 5.10 |
Taxes |
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Schedule 5.11 |
Condemnations |
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Schedule 5.12(a) |
Employment Agreements |
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Schedule 5.12(b) |
Benefit Plans |
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Schedule 5.15 |
Rights and Options |
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Schedule 5.19 |
Default |
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Schedule 6.3 |
Purchaser’s Consents and Approvals |
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Schedule 7.1 |
ASTM Standards |
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Schedule 8.7(b) |
Environmental Claims |
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Exhibit 2.2 |
Escrow Agreement |
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Exhibit 4.3(b) |
Form Assignment and Assumption of Purchased Leases |
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Exhibit 4.3(c) |
Form Assignment and Assumption of Tenant Leases |
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Exhibit 4.3(d) |
Form Xxxx of Sale |
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Exhibit 4.3(e) |
Form Assignment of Trade Name |
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Exhibit 4.3(f) |
Form Assignment of ROFR’s and Options |
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Exhibit 4.3(g) |
Form Assignment of Fund Proceeds |
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Exhibit 4.3(q) |
Form Freight Hauling Agreement |
Exhibit 4.3(r) |
Form Wholesale ROFO Agreement |
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Exhibit 4.3(t) |
Form Consent to Transfer Agreement |
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Exhibit 4.3(u) |
Form Assignment and Assumption of Mountain View Supply Agreement |
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Exhibit 8.1 |
Form Landlord Estoppel |
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Exhibit 8.12 |
Form Non-Compete and Non-Solicitation Agreement |
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Exhibit 8.13 |
Form Purchaser Non-Compete Agreement |
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Exhibit 9.1(e) |
Form Subway Leases |