EXHIBIT 2.1
RESTRUCTURING AGREEMENT
This Restructuring Agreement ("Agreement"), dated as of December 28,
1997, among FFP Partners, L.P. (the "Partnership"), a Delaware limited
partnership and FFP Partners Management Company, Inc. ("FFPMC"), a Delaware
corporation.
WHEREAS FFPMC is now the General Partner of the Partnership.
WHEREAS the Board of Directors of FFPMC and the limited partners of the
Partnership have approved a restructuring of the Partnership as a result of
which:
(1) FFP Real Estate Trust (the "REIT"), a Texas real estate
investment trust, will become the General Partner of the Partnership.
(2) FFP Operating Partners, L.P. (the "Operating Partnership"),
a Delaware limited partnership will form a new subsidiary, FFP Subsidiary
Trust (the "Subsidiary Trust"), contribute to the Subsidiary Trust
substantially all of the real property owned by the Operating Partnership
(the "Real Property") identified on Schedule 2 to this Agreement, and
distribute the interests in the Subsidiary Trust to the Partnership and FFPMC;
(3) The Partnership and FFPMC will contribute to FFP
Properties, L.P., a Delaware limited partnership ("FFP Properties") the
interests in the Subsidiary Trust;
(4) FFPMC will transfer its general partner interest in the
Partnership to the REIT in exchange for shares of stock of the REIT;
(5) The Partnership will transfer its limited partnership
interest in the Operating Partnership and certain related entities to FFP
Marketing Company, Inc. ("FFP Marketing"), a Texas corporation;
(6) FFPMC will transfer its general partner interest in the
Operating Partnership and certain related entities to FFP Operating LLC
("FFPLLC"), a Delaware limited liability company;
(7) FFPMC will transfer all of the outstanding shares of FFPLLC
to FFP Marketing;
(8) Certain corporations, partnerships and trusts associated
with the family of Xxxx X. Xxxxxxxx (collectively, the "Xxxxxxxx Family")
identified on the signature page of this Agreement will surrender their
limited partner interest in the Partnership to the Partnership in exchange
for limited partner interests in FFP Properties;
NOW, THEREFORE, in consideration of the premises and the mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement covenant and agree as follows:
ARTICLE 1
DEFINITIONS
In addition to the other terms which are defined elsewhere in this
Agreement, the following terms shall have the meanings ascribed to them below:
1.1 "Agreement" means this Restructuring Agreement.
1.2 "Closing" means the act of consummating on the Closing Date the
actions contemplated by the terms of this Agreement.
1.3 "Closing Date" means the date on which the restructuring takes
place.
1.4 "Lease" or "Leases" means the leases, subleases, rights to use,
rights to occupy, or licenses of any type whatsoever (whether written or
verbal, recorded or unrecorded) for any portion or all of the real property
as may currently exist under which the Operating Partnership is the landlord,
grantor, licensor, or lessee which are included in the Real Property.
1.5 "License" or "Licenses" means the governmental permits, licenses,
certificates of occupancy, or any other document issued by any governmental
authority with respect to the Real Property.
1.6 "Real Property" means the real estate assets listed on Schedule 2
hereto.
ARTICLE 2
THE OPERATING PARTNERSHIP'S TRANSFER
OF THE REAL PROPERTY TO THE SUBSIDIARY TRUST AND
TRANSFER OF THE SUBSIDIARY TRUST TO THE PARTNERSHIP AND FFPMC
2.1 Transfer of the Operating Partnership's Real Property to the
Subsidiary Trust. Subject to the terms and provisions of this Agreement, the
Operating Partnership is transferring, assigning, and conveying to the
Subsidiary Trust, its successors and assigns, as the initial capital
contribution to the Subsidiary Trust, all its right, title and interest in
the Real Property, in exchange for the issuance by the Subsidiary Trust to
the Operating Partnership of 1,000 common shares of the Subsidiary Trust.
2.2 Assumption of Liabilities. The Subsidiary Trust is assuming, as
of the Closing Date, the following and only the following obligations and
liabilities of the Operating Partnership with respect to the Real Property
being acquired:
(1) all obligations and liabilities accruing, arising out of,
or relating to events or occurrences happening after the Closing Date;
Leases set forth in the Real Property; and
(2) all obligations specifically undertaken by the Subsidiary
Trust pursuant to the other provisions of this Agreement.
Except as expressly provided above, the Subsidiary Trust is not
assuming any other obligation or liability of the Operating Partnership,
including by way of illustration but not limitation: (a) any obligation or
liability accruing, arising out of, or relating to any act or omission of the
Operating Partnership or any other commitments or events happening before the
Closing Date, and (b) any other obligation or liability of the Operating
Partnership not expressly assumed by the Subsidiary Trust pursuant to the
terms of this Agreement.
2.3 Lease of Real Property. The Subsidiary Trust as lessor is
entering into leases with the Operating Partnership as lessee with respect to
the Real Property.
2.4 Transfer of Subsidiary Trust to Partnership and FFPMC. Subject
to the terms and provisions of this Agreement, the Operating Partnership is
transferring, assigning, and conveying to the Partnership and FFPMC, their
successors and assigns, as a distribution to the sole partners of the
Operating Partnership, one percent (1%) of all of its right, title, and
interest in the Subsidiary Trust to FFPMC and ninety-nine (99%) of all of its
right, title, and interest in the Subsidiary Trust to the Partnership.
ARTICLE 3
THE PARTNERSHIP'S TRANSFER OF ITS LIMITED PARTNER
INTEREST IN THE OPERATING PARTNERSHIP TO FFP MARKETING
3.1 Transfer of Limited Partner Interest in the Partnership.
Pursuant to the terms and provisions of this Agreement the Partnership is
transferring, assigning and conveying to FFP Marketing, its successors and
assigns, all its right, title, and interest in and to its ninety-nine percent
(99%) limited partner interests in the Operating Partnership, FFP Financial
Services, L.P., Direct Fuels, L.P., and FFP Transportation, L.L.C., and its
one hundred percent (100%) interests in Practical Tank Management, Inc. and
FFP Money Order Company, Inc.
3.2 Consideration for Transfer. Pursuant to the terms and provisions
of this Agreement, in consideration for the transfer of such interest in the
Operating Partnership FFP Marketing is issuing and delivering to the
Partnership certificates evidencing 3,741,621 shares of stock of the FFP
Marketing.
ARTICLE 4
FFPMC'S TRANSFER OF ITS GENERAL PARTNER
INTEREST IN THE OPERATING PARTNERSHIP TO FFPLLC
4.1 Transfer of General Partner Interest in the Operating Partnership
and Related Entities. Pursuant to the terms and provisions of this Agreement
FFPMC is transferring, assigning and conveying to FFPLLC, its successors and
assigns, as a Capital Contribution, all the right, title, and interest in and
to its one percent (1%) general partner interest in the Operating
Partnership, FFP Financial Services, L.P. and FFP Transportation, L.L.C., and
its one hundred percent (100%) interest in Direct Fuels Management Company,
Inc.
4.2 Consideration for Transfer. Pursuant to the terms and provisions
of this Agreement, in consideration for the transfer of the one percent (1%)
interest in the Operating Partnership, FFP Financial Services, L.P. and FFP
Transportation, L.L.C., and the one hundred percent (100%) interest in Direct
Fuels Management Company, Inc., FFPLLC is issuing and delivering to FFPMC,
certificates evidencing 1,000 shares of stock of FFPLLC.
ARTICLE 5
FFPMC'S CAPITAL CONTRIBUTION TO FFP MARKETING
5.1 Capital Contribution of FFPMC. Pursuant to the terms and
provisions of this Agreement, FFPMC is transferring, assigning and conveying
to FFP Marketing, its successors and assigns, that portion of all its right,
title, and interest in and to 1,000 shares of FFPLLC as a Capital
Contribution.
5.2 Consideration for Contribution and Transfer. Pursuant to the
terms and provisions of this Agreement, in consideration for the transfer of
the 1,000 shares of FFPLLC, FFP Marketing is issuing and delivering to FFPMC
certificates evidencing 37,794 shares of stock of FFP Marketing.
ARTICLE 6
DISTRIBUTION OF MARKETING COMPANY SHARES
TO PARTNERS OF THE PARTNERSHIP
6.1 Distribution. The Partnership is conveying all of the shares of
FFP Marketing it holds as a result of the previous transactions to its
partners, 3,704,205 shares in the ratio of one share of FFP Marketing for
each Unit of the Partnership each limited partner holds at the Closing Date
and 37,416 shares to FFPMC, as the general partner of the Partnership.
ARTICLE 7
TRANSFER TO FFP PROPERTIES BY
THE PARTNERSHIP AND FFPMC
7.1 Transfer from the Partnership and FFPMC to FFP Properties.
Subject to the terms and provisions of this Agreement, the Partnership and
FFPMC are transferring, assigning, and conveying to FFP Properties, its
successors and assigns, all their right, title and interest in and to the
Subsidiary Trust to FFP Properties.
7.2 Consideration for Transfer to the Partnership. Subject to the
terms and provisions of this Agreement, in consideration for the transfer of
such interest in the Subsidiary Trust, FFP Properties is issuing and
delivering to the Partnership certificates evidencing 3,741,621 general
partner units of FFP Properties.
7.3 Consideration for Transfer to FFPMC. Subject to the terms and
provisions of this Agreement, in consideration for the transfer of its one
percent (1%) interest in the Real Property, FFP Properties is issuing and
delivering to FFPMC certificates evidencing 37,794 limited partner units of
FFP Properties.
ARTICLE 8
FFPMC'S TRANSFER OF ITS GENERAL PARTNER
INTEREST IN THE PARTNERSHIP TO THE REIT
8.1 Transfer of General Partner Interest in the Partnership.
Pursuant to the terms and provisions of this Agreement, FFPMC is
transferring, assigning and conveying to the REIT, its successors and
assigns, all its right, title, and interest in and to its one percent (1%)
general partner interest in the Partnership.
8.2 Consideration for Transfer. Pursuant to the terms and provisions
of this Agreement, in consideration for the transfer of the limited partner
units in the Partnership and FFP Properties, the REIT is issuing and
delivering to FFPMC certificates evidencing 37,794 common shares of the REIT.
ARTICLE 9
THE REIT'S TRANSFER
OF ITS LIMITED PARTNER INTEREST
IN FFP PROPERTIES TO THE PARTNERSHIP
9.1 Transfer of Limited Partner Interest in FFP Properties. Pursuant
to the terms and provisions of this Agreement, the REIT is transferring,
assigning and conveying to the Partnership, its successors and assigns, all
its right, title, and interest in the limited partner units in FFP Properties
to the Partnership, whereupon the units in FFP Properties will represent
general partner units in FFP Properties.
9.2 Consideration for Transfer. Pursuant to the terms and provisions
of this Agreement, in consideration for the transfer of the limited partner
units in FFP Properties, the Partnership is issuing and delivering to the
REIT certificates evidencing 37,794 units of limited partner interest in the
Partnership.
ARTICLE 10
THE XXXXXXXX FAMILY'S TRANSFER
OF ITS LIMITED PARTNER INTEREST
IN THE PARTNERSHIP TO FFP PROPERTIES
10.1 Transfer of Limited Partner Interest in the Partnership.
Pursuant to the terms and provisions of this Agreement, the members of the
Xxxxxxxx Family is transferring, assigning and conveying to the Partnership,
its successors and assigns, all their right, title, and interest in and to
their 39.3% limited partner interest in the Partnership.
10.2 Consideration for Transfer. Pursuant to the terms and provisions
of this Agreement, in consideration for the transfer of the limited partner
interest in the Partnership, the Partnership is transferring, assigning and
conveying to the members of the Xxxxxxxx Family certificates evidencing
1,469,943 units of limited partner interest of FFP Properties in the same
proportion as their prior holdings of the limited partner interest in the
Partnership.
ARTICLE 11
CLOSING
11.1 Time and Place of Closing. The Closing with respect to the
transfer of the Real Property has occurred at the offices of Jenkens &
Xxxxxxxxx, a Professional Corporation, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx on the date of this Agreement (the "Closing Date").
11.2 Effective Time. The Closing will be deemed to have occurred, and
will be effective, for accounting and tax purposes, immediately before
midnight on the Closing Date.
11.3 Further Assurances. Each party agrees to deliver any further
assignments, conveyances and other assurances, documents, and instruments of
transfer requested by the other party, and to take all other actions
consistent with the terms of this Agreement for the purpose of effecting the
transactions contemplated by this Agreement.
11.4 Prorations. Within thirty (30) days after the Closing Date, the
following items will be proportioned and prorated, in cash, on a daily basis,
between the parties as of 12:01 a.m. on the day following the Closing Date:
(1) Taxes. General county, city, and school taxes on a tax
year basis for the Real Property.
(2) Utilities. All utility expenses.
(3) Lease Payments. All Lease Payments.
(4) Insurance. All insurance premiums.
ARTICLE 12
MISCELLANEOUS
12.1 Assignment. Neither this Agreement nor the rights, duties, or
obligations arising hereunder shall be assignable or delegable by either
party without the express prior written consent of the other.
12.2 Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason
of this Agreement on any persons other than any of the parties to this
Agreement, the entities named herein and their respective permitted
successors and assigns, nor is anything in this Agreement intended to relieve
or discharge the obligation or liability of any third persons to any party to
this Agreement, nor shall any provision give any third persons any right of
subrogation or action over or against any party to this Agreement.
12.3 Entire Agreement; Modification; Waiver. This Agreement and the
exhibits hereto constitute the entire Agreement between the parties to this
Agreement, on the other, pertaining to the subject matter contained in it and
supersedes all prior agreements, representations, and all understandings of
the parties. No supplement, modification, or amendment of this Agreement
shall be binding unless expressed as such and executed in writing by the
parties to this Agreement. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provisions hereof, whether or not similar, nor shall any such waiver
constitute a continuing waiver. No waiver shall be binding unless expressed
as such in a document executed by the party making the waiver.
12.4 Publicity. All notices to third parties and all other publicity
concerning the transactions contemplated by this Agreement shall be jointly
planned, coordinated, and released by and between the parties to this
Agreement. None of the parties shall act unilaterally in this regard without
the prior written approval of the other; however, the approval shall not be
unreasonably withheld.
12.5 Records. The parties to this Agreement agree to make available
to each other, all financial or other records relating to any period prior to
the Closing Date in their respective possession which may be reasonably
required by the other party.
12.6 Limited Recourse. Notwithstanding anything to the contrary
contained herein or elsewhere, no general partner, limited partner, officer,
director, stockholder, employee, agent, servant, or other representative of
any party to this Agreement (each an "Individual") shall have any personal
liability for the performance of any obligations, or in respect of any
liability, of any of the parties under this Agreement, and no monetary or
other judgment shall be sought or enforced against any such Individuals or
their assets.
12.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of such
counterparts shall constitute but one agreement.
12.8 Transactions Considered Taken. All of the transactions described
herein shall be taken in the order that they are set forth in Article 2
through 10 of this Agreement, but shall be deemed to have taken place
simultaneously.
12.9 Captions. The captions in this Agreement are for convenience
only and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement. The Schedules attached
hereto shall constitute a part of this Agreement.
12.10 Governing Law. This Agreement and the legal relations between
the parties hereto shall be governed by, and construed in accordance with,
the laws of the State of Texas without regard to the principles of conflicts
of laws. The covenants contained herein are performable in, and are intended
to be performed in, Tarrant County, Texas.
12.11 Binding Effect. All covenants and agreements contained in this
Agreement shall bind and inure to the benefit of, and be enforceable by, the
successors and assigns of the parties hereto.
12.12 Severability. Any article, section, subsection, clause,
sentence, paragraph, or provision of this Agreement held by a court of
competent jurisdiction to be invalid, illegal, or ineffective shall not
impair, invalidate, or nullify the remainder of this Agreement, but the
effect thereof shall be confined to the article, section, subsection, clause,
sentence paragraph, or provision so held to be invalid, illegal, or
ineffective.
12.13 Non-Waiver. No breach of any of the terms or provisions of this
Agreement shall be deemed consented to or excused, nor shall the validity or
performance of any representation, promise, or undertaking herein be deemed
waived, nor any delay in or deviation from the time or manner of any
performance be deemed consented to unless such consent, excuse, or waiver
shall be in writing and signed by the party claimed to have consented,
excused, or waived. Any such consent, excuse, or waiver shall not constitute
a consent to, waiver of, or excuse for any other similar or dissimilar,
breach, delay, or deviation.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized officer of each of the parties hereto, all as of the date first
above written.
FFP PARTNERS MANAGEMENT COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Chairman of the Board
FFP PARTNERS, L.P.
By: FFP PARTNERS MANAGEMENT COMPANY, INC., as
General Partner
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Chairman of the Board
THE XXXXXXXX FAMILY
Economy Oil Company
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
Hi-Lo Distributors, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Vice President
Gas-Go, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
Swifty Distributors
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Vice President
Hi-Lo Corporation
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
Thrift Distributors, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
Thrift Wholesale Company
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
Thrift-Way, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Vice President
Gas-N-Sav, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Vice President
Nu-Way Energy Corporation
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, Vice President
Southway, Inc.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, President
