EXHIBIT 4.10
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of February 9, 2004 (the
"Supplemental Indenture"), among PETRO STOPPING CENTERS, L.P., a Delaware
limited partnership (the "Company"), and PETRO FINANCIAL CORPORATION, a Delaware
corporation and wholly owned subsidiary of the Company ("PFC" and, together with
the Company, the "Issuers"), as Issuers, PETRO STOPPING CENTERS HOLDINGS, L.P.,
PETRO HOLDINGS FINANCIAL CORPORATION, and PETRO DISTRIBUTING, INC. (the "Initial
Guarantors") and PETRO, INC. as Guarantors and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (the "Trustee").
WITNESSETH
WHEREAS, the Company has issued its 9% Senior Secured Notes due 2012 (the
"Notes") in the aggregate principal amount of $225,000,000 under and pursuant to
the Indenture dated February 9, 2004 among the Issuers and the Initial
Guarantors and the Trustee (the "Indenture");
WHEREAS, Section 8.1 of the Indenture provides that the Issuers and the
Guarantors may enter into a supplemental indenture to add a Guarantor;
WHEREAS, pursuant to Section 8.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture;
WHEREAS, all things necessary for the execution of this Supplemental
Indenture and to make this Supplemental Indenture a valid and binding agreement
of the parties hereto have been done;
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged by
the Issuers, the Initial Guarantors, Petro, Inc. and the Trustee, such parties
hereby agree for the benefit of each other and the equal and ratable benefit of
the Holders of the Notes as follows:
Section 1. Definitions.
Unless otherwise stated or unless the context shall otherwise require,
all capitalized terms used in this Supplemental Indenture shall be given the
same meanings as such terms are defined in the Indenture.
Section 2. Note Guarantee.
(a) By execution and delivery of this Supplemental Indenture, Petro,
Inc. hereby agrees to become a Guarantor pursuant to the Indenture and to assume
all obligations of a Guarantor under the Indenture (including without
limitation, the Note Guarantee as defined in the Indenture), the Notes and the
Registration Rights Agreement, in each case, in accordance with the terms
thereof.
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(b) Petro, Inc. hereby agrees that its execution and delivery of this
Supplemental Indenture shall evidence its Note Guarantee as set forth in Section
11.1 of the Indenture without the need for any further notation on the Notes and
the delivery and authentication of any Note by the Trustee under the Indenture,
including any Note authenticated and delivered on or prior to the date of this
Supplemental Indenture, shall constitute due delivery of the Note Guarantee set
forth in this Supplemental Indenture on behalf of Petro, Inc. Each of the
Initial Guarantors hereby agrees that its Note Guarantee set forth in Section
11.1 of the Indenture shall remain in full force and effect.
Section 3. Effectiveness and Validity.
(a) This Supplemental Indenture shall become effective on the date
first written above. The Indenture, as supplemented by this Supplemental
Indenture, is in all respects ratified and confirmed hereby. Following the
effectiveness hereof, the Indenture shall be deemed supplemented in accordance
herewith, and this Supplemental Indenture shall form a part of the Indenture for
all purposes, and every Holder of Notes heretofore or hereafter authenticated
and delivered under the Indenture shall be entitled to the benefit thereof and
hereof and be bound thereby and hereby.
(b) If an Officer of a Guarantor whose signature is on the Indenture
or this Supplemental Indenture no longer holds that office at the time the
Trustee authenticates the Notes or at any time thereafter, such Guarantor's Note
Guarantee shall be valid nevertheless.
Section 4. Solvency; No Fraudulent Transfer or Conveyance.
Petro, Inc., for the benefit of each Holder, confirms that it is a
solvent corporation and that the granting of the Guarantee is not made with the
purpose of defrauding any of its current creditors. The Issuers, each Initial
Guarantor and Petro, Inc. confirms its intention that the Note Guarantee given
by Petro, Inc. not constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar Federal or state law.
Section 5. No Personal Liability of Directors, Officers, Employees
and Stockholders.
No director, officer, employee, incorporator or stockholder of the
Issuers or any Guarantor, as such, shall have any liability for any obligations
of the Issuers or the Guarantors under the Notes, the Indenture, this
Supplemental Indenture, the Note Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. The acceptance
of a Note by each Holder is deemed to be a waiver and release of all such
liability. This waiver and release are part of the consideration for issuance of
the Note Guarantee set forth in and evidenced by this Supplemental Indenture.
Section 6. Governing Law.
THIS INDENTURE AND THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Section 7. Successors.
All agreements of the Issuers and the Guarantors in the Indenture,
this Supplemental Indenture and the Notes shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 8. Duplicate Originals.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same instrument.
Section 9. Severability.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of the Indenture, this Supplemental Indenture and the Notes
shall not in any way be affected or impaired thereby, and a Holder shall have no
claim therefor against any party hereto.
Section 10. Headings.
The headings of the sections of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part of
this Supplemental Indenture and will in no way modify or restrict any of the
terms or provisions hereof.
Section 11. Trustee.
The Trustee makes no representations as to the validity or sufficiency
of this Supplemental Indenture. The recitals and statements herein are deemed to
be those of the Company and the Guarantors and not of the Trustee.
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SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, as of the date and year first written above.
PETRO STOPPING CENTERS, L.P.
By:
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Name:
Title:
PETRO FINANCIAL CORPORATION
By:
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Name:
Title:
PETRO STOPPING CENTERS HOLDINGS, L.P.
By:
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Name:
Title:
PETRO HOLDINGS FINANCIAL CORPORATION
By:
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Name:
Title:
PETRO DISTRIBUTING, INC.
By:
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Name:
Title:
PETRO, INC.
By:
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Name:
Title:
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BANK OF NEW YORK,
as Trustee
By:
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Name:
Title:
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