EXHIBIT 1.1
EXECUTION COPY
PETRO STOPPING CENTERS HOLDINGS, X.X.
XXXXX HOLDINGS FINANCIAL CORPORATION
PETRO WARRANT HOLDINGS CORPORATION
82,707 UNITS CONSISTING OF
$82,707,000 PRINCIPAL AMOUNT AT STATED MATURITY OF
15% SENIOR DISCOUNT NOTES DUE 2008
AND
82,707 WARRANTS TO PURCHASE 82,707 SHARES OF COMMON STOCK OF
PETRO WARRANT HOLDINGS CORPORATION
PURCHASE AGREEMENT
New York, New York
July 19, 1999
First Union Capital Markets Corp.
CIBC World Markets Corp.
C/o First Union Capital Markets Corp.
As Representative of the Initial Purchasers
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Petro Stopping Centers Holdings, L.P., a Delaware limited partnership
(the "Partnership"), and Petro Holdings Financial Corporation, a Delaware
corporation (together with the Partnership, the "Issuers") propose to sell to
the parties named in Schedule I hereto (the "Initial Purchasers"), for whom you
are acting as representative (the "Representative"), 82,707 units (the "Units"),
consisting in the aggregate of $82,707,000 principal amount at stated maturity
of 15% Senior Discount Notes Due 2008 (the "Notes") issued by the Issuers and
82,707 warrants (the "Warrants") exchangeable for an aggregate of 82,707 shares
(the "Warrant Shares") of common stock (the "Common Stock ") of Petro Warrant
Holdings Corporation ("Warrant Holdings") issued by Warrant Holdings. Each Unit
will consist of $1,000 principal amount at stated maturity of the Notes and one
Warrant to purchase one share of Common Stock. The Notes are to be issued under
an indenture (the "Indenture") to be dated the Closing Date (as defined below)
among the Issuers and State Street Bank and Trust Company, as trustee (the
"Trustee"). The Warrants will be issued pursuant to a warrant agreement (the
"Warrant Agreement") to be dated the Closing Date among Warrant Holdings, the
Partnership, Sixty
Eighty, L.L.C., the Initial Purchasers and State Street Bank and Trust Company,
as warrant agent (the "Warrant Agent"). The Notes and the Warrants comprising
each Unit will be separable immediately. The Units, the Notes and the Warrants
are more fully described in the Final Memorandum referred to below.
This Agreement, the registration rights agreement, to be dated the
Closing Date, between the Initial Purchasers and the Issuers (the "Registration
Rights Agreement"), the Notes, the Indenture, the registration rights and
partners' agreement, to be dated the Closing Date, among the Initial Purchasers,
the Partnership, the partners of the Partnership, Sixty Eighty, L.L.C., and
Warrant Holdings (the "Registration Rights and Partners' Agreement"), the
Warrants and the Warrant Agreement are hereinafter collectively referred to as
the "Transaction Documents" and the transactions contemplated therein the
"Transactions."
The limited partnership agreement of Petro Stopping Centers Holdings,
L.P. among Petro, Inc., as general partner, and Xxxxx X. Xxxxxxxx, Xx., Xxxxx X.
Xxxxxxxx, Xx., JAJCO II, Inc., Mobil Long Haul, Inc. ("Mobil"), Volvo Petro
Holdings, LLC ("Volvo") and Warrant Holdings, as limited partners (the "Holdings
Partnership Agreement"), the fourth amended and restated limited partnership
agreement of Petro Stopping Centers, L.P. to be entered into among Petro, Inc.
and Petro Holdings GP, L.L.C., as general partners, and Petro Stopping Centers
Holdings, L.P. and Xxxxx X. Xxxxxxxx, Xx., as limited partners (the "Operating
Partnership Agreement"), the supplemental indenture to the indenture governing
the 10 1/2% Senior Notes Due 2007 of Petro Stopping Centers, L.P., dated January
30, 1997, to be entered into between Petro Stopping Centers, L.P. and the
Trustee (the "First Supplemental Indenture"), the new senior credit agreement to
be entered into among Petro Stopping Centers, L.P., the Partnership and
BankBoston, N.A. (the "New Senior Credit Facility"), the partnership interest
subscription and purchase agreement to be entered into among Petro, Inc., Petro
Holdings GP Corp., Petro Holdings LP Corp., Mobil, Xxxxx X. Xxxxxxxx, Xx., Xxxxx
X. Xxxxxxxx, Xx., JAJCO II, Inc., Volvo, Warrant Holdings, and Petro Stopping
Centers, L.P. (the "Subscription and Purchase Agreement"), whereby Mobil and
Volvo will purchase partnership interests in the Partnership and the Partnership
will purchase the partnership interests in Petro Stopping Centers, L.P. owned by
Chartwell Investments Inc. and the purchase agreement to be entered into between
the Partnership and Xxxxxxxxx Investments, whereby the Partnership will purchase
the partnership interests in Petro Stopping Centers, L.P. owned by Xxxxxxxxx
Investments (the "Kirshner Purchase Agreement") are hereinafter collectively
referred to as the "Recapitalization Documents" and the transactions
contemplated therein the "Recapitalization."
The sale of the Units to the Initial Purchasers will be made without
registration of the Units, Notes or Warrants under the Securities Act of 1933,
as amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the Issuers
that the Initial Purchasers will offer and sell the Units purchased by them
hereunder in accordance with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Units, the Issuers and Warrant
Holdings have prepared a preliminary offering memorandum, dated June 25, 1999
(including any and all exhibits thereto, the "Preliminary Memorandum"), and a
final offering memorandum, dated July 19, 1999 (including any and all exhibits
thereto, the "Final Memorandum"). Each of the Preliminary Memorandum and the
Final Memorandum sets forth certain information concerning the Issuers, Warrant
Holdings and the Units (and the Notes and Warrants included therein). The
Issuers and Warrant Holdings hereby confirm that they have authorized the use of
the
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Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Units by the Initial
Purchasers. Unless stated to the contrary, all references herein to the Final
Memorandum are to the Final Memorandum at the Execution Time (as defined below)
and are not meant to include any amendment or supplement subsequent to the
Execution Time.
As used herein, "Material Adverse Effect" means a material adverse
effect on the financial condition, earnings, business or properties of the
Partnership, its subsidiaries and Warrant Holdings, taken as a whole.
1. Representations and Warranties. The Issuers and Warrant Holdings
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each jointly and severally, represent and warrant to the Initial Purchasers as
set forth below in this Section 1.
(a) Each of the Issuers, Warrant Holdings and Petro Stopping Centers,
L.P. has been duly organized or incorporated and is validly existing as a
limited partnership or corporation in good standing under the laws of the
jurisdiction in which it is organized or incorporated and is duly qualified
to do business as a foreign limited partnership or corporation and is in
good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business, except in such jurisdictions in which the failure to so
qualify would not have a Material Adverse Effect.
(b) Each of the Issuers, Warrant Holdings and Petro Stopping Centers,
L.P. has full power (partnership or corporate) to own or lease its
properties and conduct its business as described in the Final Memorandum;
and each of the Issuers and Warrant Holdings has full power (partnership or
corporate) to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it.
(c) All the limited partnership interests in the Partnership have
been duly authorized and validly issued and are fully paid and non-
assessable; all the outstanding capital stock of Petro Holdings Financial
Corporation and Warrant Holdings has been duly and validly authorized and
issued and is fully paid and nonassessable; on the Closing Date at least
99.0% of the outstanding capital interests in Petro Stopping Centers, L.P.
will be owned by the Partnership either directly or through wholly owned
subsidiaries free and clear of any security interest except such security
interests contained in the New Senior Credit Facility; and on the Closing
Date ten percent of the outstanding common limited partnership interests of
the Partnership will be owned by Warrant Holdings free and clear of any
security interest.
(d) On the Closing Date each of the Issuers and Petro Stopping
Centers, L.P. will have an authorized, issued and outstanding
capitalization as set forth in the Final Memorandum.
(e) This Agreement has been duly authorized, executed and delivered
by the Issuers and Warrant Holdings, and constitutes a legal, valid and
binding instrument enforceable against the Issuers and Warrant Holdings, in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization,
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insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect and subject to general principles of equity).
(f) The Notes have been duly and validly authorized for issuance and
sale to the Initial Purchasers pursuant to this Agreement and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers pursuant
to this Agreement, will constitute the legal, valid and binding obligations
of the Issuers, enforceable against the Issuers in accordance with their
terms and entitled to the benefits of the Indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity. The statements set forth under the heading
"Description of the Notes" in the Final Memorandum, insofar as such
statements purport to summarize certain provisions of the Notes and the
Indenture, provide a fair summary of such provisions.
(g) The execution and delivery of the Indenture have been duly
authorized by the Issuers, and when executed and delivered, the Indenture
will constitute a legal, valid and binding instrument enforceable against
the Issuers in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and subject to general principles of equity).
(h) The execution and delivery of the Registration Rights Agreement
have been duly authorized by the Issuers, and when executed and delivered,
the Registration Rights Agreement will constitute a legal, valid and
binding instrument enforceable against the Issuers in accordance with its
terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and subject to
general principles of equity).
(i) The Warrants have been duly and validly authorized for issuance
and sale to the Partnership and their resale by the Partnership to the
Initial Purchasers pursuant to this Agreement has been duly and validly
authorized by the Partnership and, when issued and countersigned in
accordance with the provisions of the Warrant Agreement and delivered to
and paid for by the Initial Purchasers pursuant to this Agreement, will
constitute the legal, valid and binding obligations of Warrant Holdings,
enforceable against Warrant Holdings in accordance with their terms and
entitled to the benefits of the Warrant Agreement, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or similar
laws affecting the rights of creditors generally and subject to general
principles of equity. The statements set forth under the heading
"Description of the Warrants" in the Final Memorandum, insofar as such
statements purport to summarize certain provisions of the Warrants and the
Warrant Agreement, provide a fair summary of such provisions.
(j) The execution and delivery of the Warrant Agreement have been
duly authorized by Warrant Holdings, and when executed and delivered, the
Warrant Agreement will constitute a legal, valid and binding instrument
enforceable against Warrant Holdings in accordance with its terms (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws
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affecting creditors' rights generally from time to time in effect and
subject to general principles of equity).
(k) The execution and delivery of the Registration Rights and
Partners' Agreement have been duly authorized by the Partnership and
Warrant Holdings, and when executed and delivered, the Registration Rights
and Partners' Agreement will constitutes a legal, valid and binding
instrument enforceable against the Partnership and Warrant Holdings in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and
subject to general principles of equity).
(l) The Warrant Shares have been duly authorized and reserved for
issuance upon exchange of the Warrants in accordance with the terms of the
Warrant Agreement, are free of preemptive rights and, when issued upon
exchange of the Warrants in accordance with the terms of the Warrant
Agreement will be validly issued, fully paid and nonassessable.
(m) The financial statements and schedules of the Issuers and Petro
Stopping Centers, L.P. included in the Final Memorandum fairly present in
all material respects the financial position of the Issuers and Petro
Stopping Centers, L.P. and the results of operations and changes in
financial condition as of the dates and periods therein specified. Such
financial statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption "Selected Historical
Consolidated Financial Data" in the Final Memorandum fairly present in all
material respects, on the basis stated in the Final Memorandum, the
information included therein.
(n) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Issuers and Petro Stopping Centers, L.P. and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Final Memorandum, are independent public
accountants within the meaning of the Securities Act and the applicable
rules and regulations thereunder.
(o) No legal or governmental proceedings are pending to which the
Issuers, Warrant Holdings or Petro Stopping Centers, L.P. is a party or to
which the property of the Issuers, Warrant Holdings or Petro Stopping
Centers, L.P. is subject that are not described in the Final Memorandum,
and, to the knowledge of the Issuers, no such proceedings have been
threatened against the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. or with respect to any of their respective properties, except in each
case for such proceedings that, if the subject of an unfavorable decision,
ruling or finding, would not, singly or in the aggregate, result in a
Material Adverse Effect.
(p) The issuance of the Notes by the Issuers, the issuance of the
Warrants by Warrant Holdings, the sale of the Warrants by Warrant Holdings
to the Partnership, the offering and sale to the Initial Purchasers by the
Issuers of the Notes and Warrants pursuant to this Agreement and the
compliance by the Issuers and Warrant Holdings with the other provisions of
this Agreement and the other Transaction Documents do not
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(i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state securities or blue
sky laws or (ii) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Issuers, Warrant Holdings or Petro Stopping Centers, L.P. is a party or
by which the Issuers, Warrant Holdings or Petro Stopping Centers, L.P. or
any of their respective properties are bound, or the charter documents or
by-laws of the Issuers, Warrant Holdings or Petro Stopping Centers, L.P.,
or any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator applicable to the
Issuers, Warrant Holdings or Petro Stopping Centers, L.P.
(q) The consummation of the Recapitalization and the compliance by
the parties thereto with the provisions of the Recapitalization Documents
do not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state securities or blue
sky laws or (ii) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Issuers, Warrant Holdings or Petro Stopping Centers, L.P. is a party or
by which the Issuers, Warrant Holdings or Petro Stopping Centers, L.P. or
any of their respective properties are bound, or the charter documents or
by-laws of the Issuers, Warrant Holdings or Petro Stopping Centers, L.P.,
or any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator applicable to the
Issuers, Warrant Holdings or Petro Stopping Centers, L.P., except where
such conflict, breach or violation, singly or in the aggregate, would not
result in a Material Adverse Effect.
(r) None of the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. has (i) taken, directly or indirectly, any action designed to cause or
to result in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of any
security of any of the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. to facilitate the sale or resale of the Units, Notes or Warrants or
(ii) paid or agreed to pay to any person any compensation for soliciting
another to purchase any securities of the Issuers, Warrant Holdings or
Petro Stopping Centers, L.P. (except for the sale of Units by the Initial
Purchasers under this Agreement).
(s) Subsequent to the respective dates as of which information is
given in the Final Memorandum, (i) none of the Issuers, Warrant Holdings or
Petro Stopping Centers, L.P. has incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction
not in the ordinary course of business; (ii) none of the Issuers, Warrant
Holdings or Petro Stopping Centers, L.P. has purchased any of its
outstanding capital interests, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital interests; and (iii)
there has not been any material change in the capital interests, short-term
debt or long-term debt of the Issuers, Warrant Holdings or Petro Stopping
Centers, L.P., except in each case as described in or contemplated by the
Final Memorandum.
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(t) The Issuers, Warrant Holdings and Petro Stopping Centers, L.P.
have good and indefeasible title in fee simple to all items of real
property free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except as set forth in the New Senior
Credit Facility, and except such as do not materially and adversely affect
the value of such property and do not interfere with the use made or
proposed to be made of such property by the Issuers, Warrant Holdings or
Petro Stopping Centers, L.P., and any real property and buildings held
under lease by the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. are held under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Issuers, Warrant
Holdings or Petro Stopping Centers, L.P., in each case except as described
in or contemplated by the Final Memorandum.
(u) No labor dispute with the employees of the Issuers, Warrant
Holdings or Petro Stopping Centers, L.P. exists or is threatened or
imminent that could result in a Material Adverse Effect.
(v) The Issuers, Warrant Holdings and Petro Stopping Centers, L.P.
own or possess all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information currently employed by them in connection with
their respective businesses, except where the absence of which, singly or
in the aggregate, would not have a Material Adverse Effect, and none of the
Issuers, Warrant Holdings or Petro Stopping Centers, L.P. has received any
notice of infringement of or conflict with asserted rights of any third
party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect, except as described in or
contemplated by the Final Memorandum.
(w) The Issuers, Warrant Holdings and Petro Stopping Centers, L.P.
are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are customary in the businesses in
which they are engaged .
(x) No subsidiary of the Partnership is currently prohibited,
directly or indirectly, from paying any dividends to the Partnership, from
repaying to the Partnership any loans or advances to such subsidiary from
the Partnership or from transferring any of such subsidiary's property or
assets to the Partnership or any other subsidiary of the Partnership,
except as described in or contemplated by the Final Memorandum and except
for the restrictions in the indenture, dated May 24, 1994, governing the 12
1/2% Senior Notes Due 2002 of Petro Stopping Centers, L.P., the 10 1/2%
Notes Indenture and the New Senior Credit Facility, restrictions under law
and, in the case of a transfer of property or assets, any restrictions on
transfer contained in purchase money indebtedness, capital leases and anti-
assignment clauses in contracts with respect to the property and assets
which are the subject thereof.
(y) Each of the Issuers, Warrant Holdings and Petro Stopping Centers,
L.P. possesses all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, except where the absence of which,
singly or in the aggregate, would not have a Material Adverse Effect, and
none of the Issuers, Warrant Holdings or Petro Stopping Centers,
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L.P. has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect, except as described in
or contemplated by the Final Memorandum.
(z) None of the Issuers or Petro Stopping Centers, L.P. is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"), without taking account of
any exemption arising out of the number of holders of the securities of any
of the Issuers or Petro Stopping Centers, L.P. Each of the Issuers and
Petro Stopping Centers, L.P. will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act.
(aa) Warrant Holdings is not and, after giving effect to the offering
and sale of the Units and the application of the net proceeds thereof as
described in the Final Memorandum under "Use of Proceeds," will not be,
required to register as an "investment company" under the Investment
Company Act, and Warrant Holdings is not "controlled" by an "investment
company" as defined in the Investment Company Act.
(bb) The Issuers, Warrant Holdings and Petro Stopping Centers, L.P.
have timely filed all foreign, federal, state and local tax or information
returns that are required to be filed or have requested extensions thereof,
which returns are true, correct and complete in all material respects,
except for such failure to file timely or to request an extension that,
singly or in the aggregate, would not have a Material Adverse Effect, and
have paid all taxes required to be paid by each of them and any other
assessment, fine or penalty levied against each of them, to the extent that
any of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith and for
which adequate reserves have been provided, or any such assessment, fine or
penalty the nonpayment of which, singly or in the aggregate, would not have
a Material Adverse Effect, or as described in or contemplated by the Final
Memorandum.
(cc) None of the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. is in violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Issuers, Warrant
Holdings and Petro Stopping Centers, L.P. have received all permits,
licenses or other approvals required of them under applicable federal and
state occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Issuers, Warrant Holdings
and Petro Stopping Centers, L.P. are in compliance with all terms and
conditions of any such permit, license or approval, except any such
violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not, singly
or in the aggregate, result in a Material Adverse Effect and except as
described in or contemplated by the Final Memorandum.
(dd) The books, records and accounts of Petro Stopping Centers, L.P.
accurately and fairly reflect, in reasonable detail, in all material
respects the transactions in and dispositions of its assets and its results
of operations; Petro Stopping Centers, L.P.
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maintains a system of internal accounting controls sufficient to provide
reasonable assurance that in all material respects (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(ee) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other material agreement or instrument to
which the Issuers, Warrant Holdings or Petro Stopping Centers, L.P. is a
party or by which the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. or any of their respective properties is bound or may be affected in
any material adverse respect with regard to the property, business or
operations of the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P., except where such default, singly or in the aggregate, would not have
a Material Adverse Effect.
(ff) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Final Memorandum, at the
date hereof, does not, and at the Closing Date (as defined below) will not
(and any amendment or supplement thereto, at the date thereof and at the
Closing Date, will not), contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Issuers make no representation or
warranty as to the information contained in or omitted from the Preliminary
Memorandum or the Final Memorandum, or any amendment or supplement thereto,
in reliance upon and in conformity with information furnished in writing to
the Issuers by or on behalf of the Initial Purchasers specifically for
inclusion therein.
(gg) None of the Issuers, Warrant Holdings or any of their Affiliates
(as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), or any person acting on their behalf has, directly or
indirectly, made offers or sales of any security, or solicited offers to
buy any security, under circumstances that would require the registration
under the Securities Act of the Units, Notes, Warrants or the notes
identical to the Notes concurrently being issued to Petro Holdings LP Corp.
pursuant to the Subscription and Purchase Agreement, provided that the
Issuers and Warrant Holdings are not making any representation with respect
to any actions of the Initial Purchasers.
(hh) None of the Issuers, Warrant Holdings or any of their Affiliates,
or any person acting on their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Units, Notes or Warrants in the
United States, provided that the Issuers and Warrant Holdings are not
making any representation with respect to any actions of the Initial
Purchasers.
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(ii) The Units, Notes and Warrants satisfy the eligibility
requirements of Rule 144A(d)(3) under the Securities Act.
(jj) The Issuers have been advised by the National Association of
Securities Dealers, Inc. PORTAL Market that the Notes have been designated
PORTAL eligible securities in accordance with the rules and regulations of
the National Association of Securities Dealers, Inc.
(kk) Neither the Issuers nor Warrant Holdings has paid or agreed to
pay to any person any compensation for soliciting another to purchase any
securities of the Issuers or Warrant Holdings (except as contemplated by
this Agreement).
(ll) None of the Issuers, Warrant Holdings or Petro Stopping Centers,
L.P. is party to any material contract other than those listed as a
material contract on Schedule II to this Agreement.
(mm) Set forth on Schedule III to this Agreement is a list of every
jurisdiction in which any of the Issuers, Warrant Holdings or Petro
Stopping Centers, L.P. owns or leases material properties or conducts
material business.
(nn) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Final Memorandum has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
(oo) The information provided by the Issuers and Warrant Holdings
pursuant to Section 5(h) hereof will not, at the date thereof, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
2. Purchase and Sale. Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the Issuers
agree to sell to the Initial Purchasers, and the Initial Purchasers agree to
purchase from the Issuers, that number of Units set forth opposite its name on
Schedule I hereto. The purchase price for the Units shall be $466.71 per Unit.
3. Delivery and Payment. Delivery of and payment for the Units shall
--------------------
be made at 10:00 AM, New York City time, on July 23, 1999, or such later date as
the Representative shall designate, which date and time may be postponed by
agreement between the Representative and the Issuers (such date and time of
delivery and payment for the Units being herein called the "Closing Date").
Delivery of the Units shall be made to the Representative for the respective
accounts of the Initial Purchasers against payment by the Initial Purchasers
through the Representative of the purchase price thereof by wire transfer of
immediately available funds to an account specified by the Issuers or as the
Issuers may direct in writing. Certificates for the Notes and Warrants
comprising the Units shall be registered in such names and in such denominations
as the Representative may request not less than three full business days in
advance of the Closing Date.
10
The Issuers agree to have the Notes and Warrants comprising the Units
available for inspection, checking and packaging by the Representative in New
York, New York, not later than 1:00 PM on the business day prior to the Closing
Date.
4. Offering. Each Initial Purchaser, severally and not jointly,
--------
represents and warrants to and agrees with the Issuers that:
(a) It has not offered or sold, and will not offer or sell, any Units
except to those it reasonably believes to be qualified institutional buyers
(as defined in Rule 144A under the Securities Act) ("Qualified
Institutional Buyers") that are also "qualified purchasers" (as defined in
Section 2(a)(51) of the Investment Company Act) and that, in connection
with each such sale, (i) it has taken or will take reasonable steps to
ensure that the purchaser of such Units is aware that such sale is being
made in reliance on Rule 144A and (ii) in order to enable Warrant Holdings
to rely on the exemption from registration under the Investment Company Act
provided in Section 3(c)(7) thereof, it has obtained, or will obtain, from
such purchaser the certificate required to be delivered pursuant to the
Warrant Agreement.
(b) It is a Qualified Institutional Buyer and an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act and a
qualified purchaser under the Investment Company Act.
(c) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Units in the United States by means of any form
of general solicitation or general advertising (within the meaning of
Regulation D) in the United States.
(d) It will deliver to each purchaser of the Units from such Initial
Purchaser, in connection with its original distribution of the Units, a
copy of the Final Memorandum, as amended and supplemented at the date of
such delivery, provided that the Issuers furnish to such Initial Purchaser
sufficient copies of the Final Memorandum to make such delivery.
(e) It represents and agrees that (i) it has not offered or sold, and
will not offer or sell, any Units in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or as agent) for the purposes of
their businesses or otherwise or in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995 (the
"Regulations"), (ii) it has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 and the Regulations with
respect to anything done by it in relation to the Units in, from or
otherwise involving the United Kingdom, and (iii) it has only issued or
passed on and will only issue or pass on to any person in the United
Kingdom any document received by it in connection with the issue of the
Units if that person is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom the document may otherwise lawfully be issued
or passed on.
5. Agreements. The Issuers and Warrant Holdings agree with each
----------
Initial Purchaser that:
11
(a) The Issuers will furnish to the Initial Purchasers and to Cleary,
Gottlieb, Xxxxx & Xxxxxxxx ("Counsel for the Initial Purchasers"), without
charge, during the period referred to in paragraph (c) below, as many
copies of the Final Memorandum and any amendments and supplements thereto
as they may reasonably request. The Issuers will pay the expenses of
printing or other production of all documents relating to the offering.
(b) The Issuers will not amend or supplement the Final Memorandum
without the consent of the Representative, which consent shall not be
unreasonably withheld.
(c) If at any time prior to the completion of the sale of the Units
by the Initial Purchasers (as determined by the Representative), any event
occurs as a result of which the Final Memorandum, as then amended or
supplemented, would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Issuers will promptly notify the
Representative of the same and, subject to the requirements of paragraph
(b) of this Section 5, will prepare and provide to the Representative
pursuant to paragraph (a) of this Section 5 an amendment or supplement
which will correct such statement or omission or effect such compliance.
(d) The Issuers will arrange for the qualification of the Units for
sale by the Initial Purchasers under the laws of such jurisdictions as the
Initial Purchasers may designate and will maintain such qualifications in
effect so long as required for the sale of the Units, Notes or Warrants.
The Issuers will promptly advise the Representative of the receipt by the
Issuers or Warrant Holdings of any notification with respect to the
suspension of the qualification of the Units, Notes or Warrants for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) The Issuers and Warrant Holdings will not, and will not permit
any of their Affiliates to, resell any Units, Notes or Warrants that have
been acquired by any of them.
(f) None of the Issuers, Warrant Holdings or any of their Affiliates,
or any person acting on their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of any of the
Units, Notes or Warrants under the Securities Act.
(g) None of the Issuers, Warrant Holdings or any of their Affiliates,
or any person acting on their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Units, Notes or Warrants in the
United States.
(h) So long as any of the Units, Notes or Warrants are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
the Issuers and Warrant Holdings will, unless they become subject to and
comply with Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder)
of such restricted securities, upon the request of such holder or
prospective
12
purchaser, any information required to be provided by Rule 144A(d)(4) under
the Securities Act. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders, from
time to time of such restricted securities.
(i) The Issuers will cooperate with the Representative and use their
best efforts to permit the Notes to be eligible for clearance and
settlement through The Depository Trust Company.
(j) Except as disclosed in the Final Memorandum, the Issuers will
not, until 90 days following the Closing Date, without the prior written
consent of the Representative, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by either of the Issuers (other
than the Notes).
(k) The Issuers and Warrant Holdings will not voluntarily claim, and
will resist actively any attempts to claim, the benefit of any usury laws
against the holders of any Units, Notes or Warrants.
(l) The Issuers and Warrant Holdings will not, and will cause their
affiliates not to, sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Units, Notes
or Warrants in a manner that would require the registration under the
Securities Act of the sale to the Initial Purchasers of the Units or to
take any other action that would result in their resale by the Initial
Purchasers not being exempt from registration under the Act.
6. Conditions to the Obligations of the Initial Purchasers. The
-------------------------------------------------------
obligations of the Initial Purchasers to purchase the Units shall be subject to
the accuracy of the representations and warranties on the part of the Issuers
and Warrant Holdings contained herein at the date and time that this Agreement
is executed and delivered by the parties hereto (the "Execution Time"), and the
Closing Date, to the accuracy of the statements of the Issuers and Warrant
Holdings made in any certificates pursuant to the provisions hereof, to the
performance by the Issuers and Warrant Holdings of their obligations hereunder
and to the following additional conditions:
(a) The Issuers shall have furnished to the Initial Purchasers the
opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Issuers and Warrant
Holdings, dated the Closing Date, to the effect that:
(i) each of the Issuers and Warrant Holdings has been duly
organized or incorporated and is validly existing as a limited
partnership or corporation in good standing under the laws of the
jurisdiction in which it is organized or incorporated, and is duly
qualified to do business as a foreign limited partnership or
corporation and is in good standing under the laws of each
jurisdiction listed on Schedule III hereto;
(ii) each of the Issuers and Warrant Holdings has full power
(partnership or corporate) to own or lease its properties and conduct
its business as described in the Final Memorandum; and each of the
Issuers and Warrant
13
Holdings has full power (partnership or corporate) to enter into this
Agreement and to carry out all the terms and provisions hereof to be
carried out by it;
(iii) all the limited partnership interests in the Partnership
have been duly authorized and validly issued and are fully paid and
non-assessable (except for capital call provisions provided in the
Holdings Partnership Agreement, but which do not apply to any limited
partnership interests owned by Warrant Holdings); all the outstanding
capital stock of Petro Holdings Financial Corporation and Warrant
Holdings has been duly and validly authorized and issued and is fully
paid and nonassessable; and ten percent of the outstanding common
limited partnership interests of the Partnership are owned of record
by Warrant Holdings, and, to the knowledge of such counsel, free and
clear of any security interest;
(iv) this Agreement has been duly authorized, executed and
delivered by the Issuers and Warrant Holdings, and constitutes a
legal, valid and binding instrument enforceable against the Issuers
and Warrant Holdings, in accordance with its terms;
(v) the Notes have been duly and validly authorized for
issuance and sale to the Initial Purchasers pursuant to this Agreement
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Issuers, enforceable against the
Issuers in accordance with their terms and entitled to the benefits of
the Indenture; and the statements set forth under the heading
"Description of the Notes" in the Final Memorandum, insofar as such
statements purport to summarize certain provisions of the Notes and
the Indenture, provide a fair summary of such provisions;
(vi) the Indenture has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Issuers in accordance with its terms;
(vii) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuers and constitutes a
legal, valid and binding instrument enforceable against the Issuers in
accordance with its terms;
(viii) the Warrants have been duly and validly authorized for
issuance and sale to the Partnership and their resale by the
Partnership to the Initial Purchasers pursuant to this Agreement has
been duly and validly authorized by the Partnership and, when issued
and countersigned in accordance with the provisions of the Warrant
Agreement and delivered to and paid for by the Initial Purchasers
pursuant to this Agreement, will constitute the legal, valid and
binding obligations of Warrant Holdings, enforceable against Warrant
Holdings in accordance with their terms and entitled to the benefits
of the Warrant Agreement; and the statements set forth under the
heading "Description of the Warrants" in the Final Memorandum, insofar
as such statements purport to summarize certain provisions of the
Warrants and the Warrant Agreement, provide a fair summary of such
provisions;
14
(ix) the Warrant Agreement has been duly authorized, executed
and delivered by Warrant Holdings and constitutes a legal, valid and
binding instrument enforceable against Warrant Holdings in accordance
with its terms;
(x) the Registration Rights and Partners' Agreement has been
duly authorized, executed and delivered by the Partnership and Warrant
Holdings and constitutes a legal, valid and binding instrument
enforceable against the Partnership and Warrant Holdings in accordance
with its terms;
(xi) The Warrant Shares have been duly authorized and reserved
for issuance upon exchange of the Warrants in accordance with the
terms of the Warrant Agreement, are free of preemptive rights under
the charter of Warrant Holdings and, to such counsel's knowledge, any
other agreement and, when issued upon exchange of the Warrants in
accordance with the terms of the Warrant Agreement will be validly
issued, fully paid and nonassessable;
(xii) assuming the accuracy of the representations and
warranties and compliance with the agreements contained herein and
contained in the Subscription and Purchase Agreement and the
statements contained in the Final Memorandum under the sections
"Notice to Investors" and "Plan of Distribution," no registration
under the Securities Act of the Units, Notes, Warrants or the notes
identical to the Notes concurrently being issued to Petro Holdings LP
Corp. pursuant to the Subscription and Purchase Agreement, and no
qualification of an indenture under the Trust Indenture Act, are
required for the initial offer and sale by the Initial Purchasers of
the Units, Notes or Warrants in the manner contemplated by this
Agreement provided that, no opinion is expressed with respect to any
subsequent resale of the Units, Notes or Warrants;
(xiii) to the best knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental agency
or body is required for the issuance of the Notes by the Issuers, the
issuance of the Warrants by Warrant Holdings, the sale of the Warrants
by Warrant Holdings to the Partnership, the offering and sale to the
Initial Purchasers by the Issuers of the Notes and Warrants pursuant
to this Agreement and the compliance by the Issuers and Warrant
Holdings with the other provisions of this Agreement and the other
Transaction Documents, except such as may be required under the blue
sky or securities laws of any jurisdiction in connection with the
purchase and sale of the Notes and Warrants by the Initial Purchasers
and such other approvals (specified in such opinion) as have been
obtained;
(xiv) to the best knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental agency
or body is required for the consummation of the Recapitalization and
the compliance by the Issuers and Warrant Holdings with the provisions
of the Recapitalization Documents, except such approvals (specified in
such opinion) as have been obtained, and except where the absence of
which, singly or in the aggregate, would not have a Material Adverse
Effect;
15
(xv) neither the issue of the Notes by the Issuers, the
issuance of the Warrants by Warrant Holdings, the sale of the Warrants
by Warrant Holdings to the Partnership, the offering and sale to the
Initial Purchasers by the Issuers of the Notes and Warrants and the
compliance by the Issuers and Warrant Holdings with the provisions of
this Agreement and the other Transaction Documents, nor the
fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation of, or constitute a default under the
partnership governance agreement, charter or by-laws of the Issuers or
Warrant Holdings or the terms of any indenture or other agreement or
instrument listed as a material contract on Schedule II to this
Agreement and to which the Issuers or Warrant Holdings is a party or
bound or any law, judgment, order or decree known to such counsel to
be applicable to the Issuers or Warrant Holdings of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Issuers or Warrant Holdings;
(xvi) neither the consummation of the Recapitalization and the
compliance by the parties thereto with the provisions of the
Recapitalization Documents nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or
constitute a default under the partnership governance agreement,
charter or by-laws of the Issuers or Warrant Holdings or the terms of
any indenture or other agreement or instrument listed as a material
contract on Schedule II to this Agreement and to which the Issuers or
Warrant Holdings is a party or bound or any law, judgment, order or
decree known to such counsel to be applicable to the Issuers or
Warrant Holdings of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Issuers
or Warrant Holdings, except such conflict, breach, violation or
default which, singly or in the aggregate, would not have a Material
Adverse Effect;
(xvii) neither the consummation of the transactions contemplated
by this Agreement nor the sale, issuance, execution or delivery of the
Notes and Warrants comprising the Units will violate Regulation T, U
or X of the Federal Reserve Board.
The foregoing opinions will be subject to the following assumptions,
qualifications, limitations and exceptions:
A. With respect to the opinions stated in paragraphs (xiii)
and (xv), such counsel expresses no opinion as to violations of state
securities or blue sky laws, or consents, approvals, authorizations,
or orders of, or filings or registrations with, state securities
regulatory authorities (or federal securities authorities, which are
specifically addressed in paragraph (xii)) and any such consents,
approvals, authorizations, or order of, or filings or registrations
with, the Securities and Exchange Commission and any state securities
regulatory authorities as may be required in the future to be obtained
or made pursuant to the Registration Rights Agreement or the
Registration Rights and Partners' Agreement.
B. With respect to the opinions stated in paragraphs (iv),
(v), (vi), (vii), (viii), (ix) and (x) such counsel's opinions are
subject to (i) the effect of any
16
applicable bankruptcy, insolvency, reorganization, moratorium,
arrangement or other similar laws affecting enforcement of creditors'
rights generally, including, without limitation, the effect of
statutory or other laws regarding fraudulent conveyances or transfers,
preferential transfers, and of laws affecting distributions by
corporations to stockholders, and (ii) general principles of equity,
regardless of whether a matter is considered in a proceeding in
equity, at law or in arbitration, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing.
C. Such counsel expresses no opinion as to the legality,
validity, binding nature or enforceability of any provision in the
Transaction Documents relating to indemnification or contribution or
the ability to obtain specific performance, injunctive relief or other
equitable relief as a remedy for noncompliance with any of the
Transaction Documents or any of the Recapitalization Documents.
D. In rendering such counsel's opinions expressed in
paragraphs (xv) and (xvi) insofar as they require interpretation of
contracts, indentures, mortgages, deeds of trust, loan or credit
agreements or instruments ("Material Contracts"), such counsel
expresses no opinion with respect to any financial calculations or
data in respect of financial covenants included in any Material
Contract. Furthermore, with respect to paragraphs (xv) and (xvi) while
such counsel advises that (subject to the other assumptions,
exceptions, qualifications and limitations herein), the Transaction
Documents and Recapitalization Documents may be performed in a manner
that does not result in a conflict, violation, breach or default
described therein, such counsel expresses no opinion as to whether the
actual performance of the terms and provisions of the Transaction
Documents and Recapitalization Documents after the date hereof will
not conflict, violate, breach or constitute a default under any
Material Contract, or violate any statute, regulation, judgment,
decree or order applicable to any of the Issuers or Warrant Holdings.
Such counsel shall also state that such counsel has participated
in conferences with officers and other representatives of the Issuers and
Petro Stopping Centers, L.P., representatives of the independent public
accountants for the Issuers and Petro Stopping Centers, L.P.,
representatives of the Initial Purchasers and Counsel for the Initial
Purchasers, at which conferences the contents of the Final Memorandum and
related matters were discussed. Because the purpose of such counsel's
professional engagement was not to establish or confirm factual matters and
because the scope of such counsel's examination of the affairs of the
Issuers and Warrant Holdings is not designed to verify the accuracy,
completeness or fairness of the statements set forth in the Final
Memorandum, such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Final Memorandum (except to the extent in the
final clause of paragraph (v) and the final clause of paragraph (viii)
above). On the basis of the foregoing, no facts have come to such
counsel's attention which lead such counsel to believe that the Final
Memorandum, on the date thereof or the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the
17
statements therein in light of the circumstances in which they were made,
not misleading (it being understood that such counsel expresses no view
with respect to the financial statements and the notes thereto and the
other financial data and accounting data included in the Final Memorandum.)
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
the State of New York, the State of Texas, the State of Delaware or the
United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel and who are satisfactory to
Counsel for the Initial Purchasers and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Issuers and Warrant Holdings and public officials.
All references in this Section 6(a) to the Final Memorandum shall
be deemed to include any amendment or supplement thereto at the Closing
Date.
(b) The Issuers shall have furnished to the Initial Purchasers the
opinion of Kemp, Smith, Xxxxxx & Xxxxxxx, P.C., counsel for Petro Stopping
Centers, L.P., dated the Closing Date, to the effect that:
(i) Petro Stopping Centers, L.P. has been duly organized and is
validly existing as a limited partnership in good standing under the
laws of the State of Delaware, with full partnership power and
authority to own its properties and conduct its business as described
in the Final Memorandum, and is duly qualified to do business as a
foreign limited partnership and is in good standing under the laws of
each jurisdiction listed on Schedule III hereto;
(ii) all the limited partnership interests in Petro Stopping
Centers, L.P. have been duly authorized and validly issued and are
fully paid and non-assessable (except for capital call provisions
provided in the Operating Partnership Agreement); at least 99.0% of
the outstanding capital interests in Petro Stopping Centers, L.P. are
owned by the Partnership either directly or through wholly owned
subsidiaries, free and clear of any perfected security interest,
except such security interests contained in the New Senior Credit
Facility and, to the knowledge of such counsel, any other security
interest;
(iii) the statements set forth under the headings "Description
of Holdings Partnership Agreement" and "Description of Limited
Partnership Interest" in the Final Memorandum, insofar as such
statements purport to summarize certain provisions of the Holdings
Partnership Agreement, provide a fair summary of such provisions;
(iv) neither the issue of the Notes by the Issuers, the issuance
of the Warrants by Warrant Holdings, the sale of the Warrants by
Warrant Holdings to the Partnership, the offering and sale to the
Initial Purchasers by the Issuers of the Notes and Warrants, nor the
fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation of, or constitute a default under the
partnership governance agreement, charter or by-laws of Petro Stopping
Centers, L.P. or any of its subsidiaries or the terms of any indenture
or other agreement or
18
instrument listed as a material contract on Schedule II to this
Agreement and to which Petro Stopping Centers, L.P. or any of its
subsidiaries is a party or bound or any law, judgment, order or decree
known to such counsel to be applicable to Petro Stopping Centers, L.P.
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over Petro Stopping Centers, L.P. or any of its
subsidiaries;
(v) neither the consummation of the Recapitalization and the
compliance by the parties thereto with the provisions of the
Recapitalization Documents nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or
constitute a default under the partnership governance agreement,
charter or by-laws of Petro Stopping Centers, L.P. or any of its
subsidiaries or the terms of any indenture or other agreement or
instrument listed as a material contract on Schedule II to this
Agreement and to which Petro Stopping Centers, L.P. or any of its
subsidiaries is a party or bound or any law, judgment, order or decree
known to such counsel to be applicable to Petro Stopping Centers, L.P.
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over Petro Stopping Centers, L.P. or any of its
subsidiaries, except such conflict, breach, violation or default
which, singly or in the aggregate, would not have a Material Adverse
Effect.
The foregoing opinions will be subject to the following assumptions,
qualifications, limitations and exceptions:
A. With respect to the opinions stated in paragraph (iv), such
counsel expresses no opinion as to violations of state securities or
blue sky laws, or consents, approvals, authorizations, or orders of,
or filings or registrations with, state securities regulatory
authorities and any such consents, approvals, authorizations, or order
of, or filings or registrations with, the Securities and Exchange
Commission and any state securities regulatory authorities as may be
required in the future to be obtained or made pursuant to the
Registration Rights Agreement.
B. In rendering such counsel's opinions expressed in paragraphs
(iv) and (v) insofar as they require interpretation of contracts,
indentures, mortgages, deeds of trust, loan or credit agreements or
instruments ("Material Contracts"), such counsel expresses no opinion
with respect to any financial calculations or data in respect of
financial covenants included in any Material Contract. Furthermore,
with respect to paragraphs (iv) and (v) while such counsel advises
that (subject to the other assumptions, exceptions, qualifications and
limitations herein), the Transaction Documents and Recapitalization
Documents may be performed in a manner that does not result in a
conflict, violation, breach or default described therein, such counsel
expresses no opinion as to whether the actual performance of the terms
and provisions of the Transaction Documents and Recapitalization
Documents after the date hereof will not conflict, violate, breach or
constitute a default under any Material Contract, or violate any
statute, regulation, judgment, decree or order applicable to any of
the Issuers, Warrant Holdings or Petro Stopping Centers, L.P.
19
(c) The Issuers shall have furnished to the Initial Purchasers the opinion
of Xxxxx Xxxxxxx, Esq., Vice President and General Counsel and Secretary of the
Partnership, dated the Closing Date, to the effect that:
(i) the information contained in the Final Memorandum under the
heading "Governmental Regulation" fairly summarizes in all material
respects the matters described therein.
All references in this Section 6(c) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(d) The Issuers shall have furnished to the Initial Purchasers the opinion
of Xxxxxxxx and Worcester LLP, counsel for the Issuers and Warrant Holdings,
dated the Closing Date, to the effect that:
(i) neither of the Issuers is an investment company that is, or is
required to be (or after giving effect to the offering and sale of the
Units and the application of the net proceeds thereof as described in the
Final Memorandum under "Use of Proceeds" will be required to be) registered
under the Investment Company Act without considering the possible
application of the exemption from registration set out in Section 3(c)(1)
of the Investment Company Act;
(ii) assuming the accuracy of the representations and warranties and
compliance with the agreements contained herein, Warrant Holdings is not
and, after giving effect to the offering and sale of the Units and the
application of the net proceeds thereof as described in the Final
Memorandum under "Use of Proceeds" will not be, required to register as an
"investment company" under the Investment Company Act, and is not
"controlled" by an "investment company" as defined in the Investment
Company Act.
All references in this Section 6(d) to the Final Memorandum shall be deemed
to include any amendment or supplement thereto at the Closing Date.
(e) The Initial Purchasers shall have received from Counsel for the
Initial Purchasers such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Notes and Warrants comprising the Units,
the Final Memorandum (as amended or supplemented at the Closing Date) and other
related matters as the Initial Purchasers may reasonably require, and the
Issuers shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Issuers shall have furnished to the Initial Purchasers
certificates of each of the Issuers and Warrant Holdings, dated the Closing
Date, signed by the Chairman of the Board or the President and the principal
financial or accounting officer of each thereof to the effect that the signers
of such certificates have carefully examined the Final Memorandum, any amendment
or supplement to the Final Memorandum and this Agreement and that:
20
(i) the representations and warranties of the Issuers and Warrant
Holdings in this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing
Date, and each of the Issuers and Warrant Holdings have complied with all
the agreements and satisfied all the conditions on each of their parts to
be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included
in the Final Memorandum, there has been no material adverse change in the
financial condition, earnings, business or properties of any of the
Issuers, Warrant Holdings or Petro Stopping Centers, L.P., whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(g) The Representative shall have received from Xxxxxx Xxxxxxxx LLP a
letter or letters dated, respectively, the Execution Date and the Closing Date,
in form and substance satisfactory to the Representative, to the effect that:
(i) they are independent certified public accountants with respect
to the Partnership under Rule 101 of the AICPA's Code of Professional
Conduct and its interpretations and rulings;
(ii) in their opinion, the audited consolidated financial statements
and schedules examined by them and included in the Final Memorandum comply
in form in all material respects with the applicable accounting
requirements of the Securities Act and the related published rules and
regulations;
(iii) on the basis of carrying out certain specified procedures (which
do not constitute an examination made in accordance with generally accepted
auditing standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(iii), a reading of the minute books and consents in lieu of special
meetings of the board of directors of the Partnership and of Petro Stopping
Centers, L.P., and inquiries of certain officials of the Partnership who
have responsibility for financial and accounting matters, nothing came to
their attention that caused them to believe that, at a specific date not
more than five business days prior to the date of such letter, except as
described in the Final Memorandum, there were any changes in the total
partners' capital or total debt of the Partnership or any decreases in
working capital of the Partnership, in each case compared with amounts
shown on the March 31, 1998 unaudited balance sheet of Petro Stopping
Centers, L.P. included in the Final Memorandum, or, for the period from
March 31, 1999 to such specified date, there were any decreases in total
net revenues, EBITDA or total amount of net income of the Partnership, in
each case compared with amounts from the corresponding period of the prior
year of Petro Stopping Centers, L.P., except in all instances for changes,
decreases or increases set forth in such letter;
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records
of the Partnership and its
21
consolidated subsidiaries and are included in the Final Memorandum and have
compared such amounts, percentages and financial information with such
records of the Partnership and its consolidated subsidiaries and with
information derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma
consolidated financial statements included in the Final Memorandum,
carrying out certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (v), inquiries of certain officials of the Partnership who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the unaudited pro forma consolidated financial
statements, nothing came to their attention that caused them to believe
that the pro forma adjustments had not been properly applied to the
historical amounts in the compilation of those statements.
In the event that the letter referred to above sets forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Initial Purchasers that (A) such letters shall be accompanied by a written
explanation from the Partnership as to the significance thereof, unless the
Representative deems such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representative, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Notes and Warrants comprising the Units as contemplated by this Agreement and
the Final Memorandum, as amended as of the date hereof.
All references in this Section 6(g) to the Final Memorandum shall be deemed
to include any amendment or supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change or decrease specified in the letter or letters referred
to in paragraph (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business or
properties of the Issuers and its subsidiaries or Warrant Holdings the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the judgment of the Initial Purchasers, so material and adverse as to
make it impractical or inadvisable to market the Units as contemplated by
the Final Memorandum.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the debt securities of either of the
Issuers or Petro Stopping Centers, L.P. by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Securities Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change.
(j) Each of the Transaction Documents (including any amendments
thereto) shall have been duly authorized, executed and delivered by each of
the parties thereto, and the Representative shall have received copies of
each such Transaction Document (including any amendments thereto) as so
executed and delivered in the form provided to
22
the Representative on or before the date hereof except for changes approved
by the Representative or changes which do not materially adversely affect
the holders of the Notes and the Warrants.
(k) Each of the Recapitalization Documents (including any amendments
thereto) shall have been duly authorized, executed and delivered by each of
the parties thereto, and the Representative shall have received copies of
each such Recapitalization Document (including any amendments thereto) as
so executed and delivered in the form provided to the Representative on or
before the date hereof except for changes approved by the Representative or
changes which do not materially adversely affect the Issuers, Warrant
Holdings or Petro Stopping Centers, L.P.
(l) Prior to the Closing Date, the Issuers shall have furnished to
the Representative such further information, certificates and documents as
the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and Counsel for the Initial Purchasers, this
Agreement and all obligations of the Initial Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representative.
Notice of such cancellation shall be given to the Issuers in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Xxxxxx, Xxxx & Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx xx the Closing Date.
7. Reimbursement of Expenses; Fees. The Issuers will, whether or
-------------------------------
not the sale of the Units provided for herein is consummated, (i) pay all
expenses incident to the performance of their obligations under the offering
documents, including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the Preliminary
Memorandum, the Final Memorandum, all amendments thereof and supplements thereto
and all other documents relating to the offering of the Units, the cost of
preparing, printing, packaging and delivering the Notes and Warrants comprising
the Units, the fees and disbursements, including fees of counsel incurred in
compliance with Section 5(d), the fees and disbursements of the Trustee and the
fees of any agency that rates the Notes, the fees and expenses, if any, incurred
in connection with the admission of the Notes for trading in the PORTAL Market
and (ii) reimburse the Initial Purchasers as requested for all reasonable
out-of-pocket expenses (including reasonable legal fees and expenses) incurred
by the Initial Purchasers in connection with the proposed purchase and resale of
the Units.
8. Indemnification and Contribution. (a) The Issuers jointly agree
--------------------------------
to indemnify and hold harmless each Initial Purchaser, the directors, officers,
employees and agents of the Initial Purchasers and each person who controls any
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or
23
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Memorandum, the
Final Memorandum or any information provided by the Issuers to any holder or
prospective purchaser of Units, Notes or Warrants pursuant to Section 5(h), or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agree to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that the Issuers will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Memorandum or the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of any Initial Purchaser
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Issuers may otherwise have. However, with respect to
any untrue statement or omission of material fact made in any Preliminary
Memorandum or Final Memorandum or any amendment or supplement thereto, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any Initial Purchaser from whom the person asserting any such loss,
claim, damage or liability purchased the securities concerned, to the extent
that any such loss, claim, damage or liability of such Initial Purchaser results
from the fact that (x) the Issuers had previously furnished copies of the Final
Memorandum as then amended or supplemented to the Representative in accordance
with this Agreement, (y) the untrue statement or omission of a material fact
contained in the Preliminary Memorandum (or Final Memorandum) was corrected in
the Final Memorandum (as then amended or supplemented) and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Final Memorandum (as then
amended or supplemented).
(b) Each Initial Purchaser severally agrees to indemnify and hold
harmless the Issuers, their directors, their officers, and each person who
controls the Issuers within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Issuers to
each Initial Purchaser, but only with reference to written information relating
to such Initial Purchaser furnished to the Issuers by or on behalf of such
Initial Purchaser through the Representative specifically for inclusion in the
Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto). This indemnity agreement will be in addition to any
liability which the Initial Purchasers may otherwise have. The Issuers
acknowledge that the statements set forth in the third and fourth paragraphs
under the heading "Plan of Distribution" in the Preliminary Memorandum and the
Final Memorandum constitute the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless
24
and to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
-------- -------
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Issuers, on the one hand, and the Initial
Purchasers, on the other hand, agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Issuers, on the one hand, and one or both of the Initial
Purchasers, on the other hand, may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Issuers, on the one
hand, and by the Initial Purchasers, on the other hand, from the offering of the
Units; provided, however, that in no case shall any Initial Purchaser (except as
-------- -------
may be provided in any agreement between the Initial Purchasers relating to the
offering of the Units) be responsible for any amount in excess of the purchase
discount or commission applicable to the Units purchased by such Initial
Purchaser hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Issuers, on the one hand, and the
Initial Purchasers, on the other hand, shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Issuers, on the one hand, and of the Initial Purchasers, on the
other hand, in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Issuers shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Initial
25
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions received by the Initial Purchasers from the Issuers in connection
with the purchase of the Units hereunder. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Issuers or the Initial Purchasers. The Issuers and
the Initial Purchasers agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Initial Purchaser within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of an Initial Purchaser shall have the same rights to contribution as such
Initial Purchaser, and each person who controls the Issuers within the meaning
of either the Securities Act or the Exchange Act and each officer and director
of the Issuers shall have the same rights to contribution as the Issuers,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Default by an Initial Purchaser. If either of the Initial
-------------------------------
Purchasers shall fail to purchase and pay for any of the Units agreed to be
purchased by it hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Initial Purchaser shall be obligated severally to take up and pay for
the Units which the defaulting Initial Purchaser agreed but failed to purchase;
provided, however, that in the event that the aggregate number of Units which
-------- -------
the defaulting Initial Purchaser agreed but failed to purchase shall exceed 10%
of the aggregate number of Units set forth in Schedule I hereto, the remaining
Initial Purchaser shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Units, and if such non-defaulting Initial
Purchaser does not purchase all the Units, this Agreement will terminate without
liability to the non-defaulting Initial Purchaser or the Issuers. In the event
of a default by either Initial Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representative shall determine in order that the required changes in the
Final Memorandum or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve a defaulting Initial Purchaser
of its liability, if any, to the Issuers or the non-defaulting Initial Purchaser
for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representative, by notice given to the Issuers
prior to delivery of and payment for the Notes and Warrants comprising the
Units, if prior to such time (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Initial Purchasers, impracticable or inadvisable to proceed with the
offering or delivery of the Notes and Warrants comprising the Units as
contemplated by the Final Memorandum.
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Issuers and Warrant Holdings or any of their officers and of the Initial
Purchasers set forth in or made pursuant to this
26
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Initial Purchasers or the Issuers, Warrant Holdings
or any of the officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Notes and Warrants
comprising the Units. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telegraphed and confirmed to First Union Capital Markets Corp., 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, XX 00000-0000, attention: Xxxxx Xxxxx;
or, if sent to the Issuers, will be mailed, delivered or telegraphed and
confirmed to them at 0000 Xxxxxx Xxxxx, Xx Xxxx, XX 00000, attention: General
Counsel.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
15. Business Day. For purposes of this Agreement, Business Day means
------------
any day excluding Saturday, Sunday or any other day which is a legal holiday
under the laws of Charlotte, North Carolina or New York, New York or is a day on
which banking institutions therein located are authorized or required by law or
other governmental action to close.
16. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Issuers, Warrant Holdings and the Initial Purchasers.
Very truly yours,
Petro Stopping Centers Holdings, L.P.
By___________________________________
Name:
Title:
Petro Holdings Financial Corporation
By___________________________________
Name:
Title:
Petro Warrant Holdings Corporation
By___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
First Union Capital Markets Corp.
CIBC World Markets Corp.
By First Union Capital Markets Corp.
By__________________________________
Name:
Title:
For themselves and the other Initial Purchaser
named in Schedule I to the foregoing Agreement
EXECUTION COPY
SCHEDULE I
Number of Units
Initial Purchasers to be Purchased
__________________ _______________
First Union Capital Markets Corp. 74,437
CIBC World Markets Corp. 8,270
_______________
Total 82,707
SCHEDULE II
Material Contacts
-----------------
1. All agreements to be entered into as of July 23, 1998 and defined as
Transaction Documents in the Purchase Agreement to which this Schedule is
attached.
2. All agreements to be entered into as of July 23, 1998 and defined as
Recapitalization Documents in the Purchase Agreement to which this
Schedule is attached.
3. Indenture, dated as of May 24, 1994, among Petro Stopping Centers, L.P.,
Petro Financial Corporation and First Trust National Association, as
trustee, for $100,000,000 principal amount 12 1/2% Senior Notes due 2002.
4. Indenture dated as of January 30, 1997, among Petro Stopping Centers,
L.P., Petro Financial Corporation and State Street Bank and Trust
Company, as trustee, relating to $135,000,000 principal amount 10 1/2%
Senior Notes due 2007.
5. Second Amended and Restated Revolving Credit and Term Loan Agreement, to
be dated as of July 23, 1999, among Petro Stopping Centers, L.P., the
Lenders party thereto, and The First National Bank of Boston, as Agent.
6. Employment Agreement, dated February 10, 1999, by and between Xxxxx X.
Xxxxxxxx, Xx. and the Company.
7. Employment Agreement, dated February 10, 1999, by and between Xxxxx X.
Xxxxxxxx, Xx. and the Company.
8. Employment Agreement dated March 1999, by and between Xxxx Xxxxxxx and
the Company.
9. PMPA Motor Fuels Franchise Agreement, to be dated July 23, 1999, by and
between Mobil Oil and Petro Stopping Centers, L.P.
10. Master Supply Contract for Resale of Oils and Greases, to be dated July
23, 1999 by and between Mobil Oil and Petro Stopping Centers, L.P.
11. Joint Operating and Supply Agreement to be dated as of July 23, 1999,
between Petro Stopping Centers, L.P. and Volvo Trucks North America.
12. Second Amended and Restated Indemnity and Hold Harmless Agreement, to be
dated July 23, 1999, by Xxxxx X. Xxxxxxxx, Xx. for the benefit of Petro
Holdings GP Corp., Petro, Inc., Petro Stopping Centers, L.P. and Petro
Financial Corporation.
13. Second Amended and Restated Indemnity and Hold Harmless Agreement, to be
dated July 23, 1999, by Xxxxx X. Xxxxxxxx, Xx. and for the benefit of
Petro Holdings GP Corp., Petro, Inc., Petro Stopping Centers, L.P. and
Petro Financial Corporation.
14. Second Amended and Restated Indemnity and Hold Harmless Agreement, to be
dated July 23, 1999, by JAJCO II for the benefit of Petro Holdings GP
Corp., Petro, Inc., Petro Stopping Centers, L.P. and Petro Financial
Corporation.
15. Indemnity and Hold Harmless Agreement, to be dated July 23, 1999, by
Petro, Inc. for the benefit of Petro Holdings GP Corp., Petro, Inc.,
Petro Stopping Centers, L.P. and Petro Financial Corporation.
16. Limited Liability Company Operating Agreement of Petro Travel Plaza, LLC,
dated as of December 5, 1997, among Petro Stopping Centers, L.P., Tejon
Development Corporation, and Tejon Ranch Company, as Guarantor.
17. Franchise Agreements between Petro Stopping Centers, L.P. and Highway
Service Ventures Inc., dated September 30, 1985, March 14, 1988, February
11, 1991 and January 16, 1995.
18. Franchise Agreements between Petro Stopping Centers, L.P. and Welsh,
Inc., dated March 8, 1996, October 15, 1987, July 1, 1989 and April 8,
1999.
19. Franchise Agreements between Petro Stopping Centers, L.P. and All
American Plazas, Inc. dated March 19, 1998 and February 19, 1998.
SCHEDULE III
Material Property and Lease Jurisdictions
-----------------------------------------
Petro Stopping Centers, L.P.
----------------------------
Alabama
Arizona
Arkansas
California
Delaware
Florida
Georgia
Idaho
Indiana
Illinois
Kansas
Kentucky
Louisiana
Maryland
Michigan
Mississippi
Missouri
Nebraska
New Jersey
New Mexico
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
Tennessee
Texas
Virginia
Wisconsin
Wyoming
Petro Stopping Centers Holdings, L.P.
-------------------------------------
Texas
Petro Holdings Financial Corporation
------------------------------------
Texas
Petro Warrant Holdings Corporation
----------------------------------
Texas
