OMNIBUS AGREEMENT
BY AND AMONG
XXXXX X. XXXXXXXX, XX.
XXXXX X. XXXXXXXX, XX.
JAJCO II, INC.
PETRO, INC.
MOBIL LONG HAUL INC.
PETRO HOLDINGS GP CORP.
PETRO HOLDINGS LP CORP.
PETRO STOPPING CENTERS, L.P.
dated as of October , 1996
TABLE OF CONTENTS
Page
1. Definitions................................................. 3
2. Transactions................................................ 3
2.1 General Partnership Interest Acquisition.......... 4
2.2 Limited Partnership Interest Acquisitions......... 4
2.3 Holdings LP Contribution.......................... 4
2.4 Mobil Contribution................................ 4
2.5 Xxxxxxxx Group Interests.......................... 4
2.6 New Ownership Structure........................... 4
2.7 Realco Contribution............................... 5
2.8 Cash Contributions................................ 5
2.9 Xxxxxxxxx......................................... 5
3. Deposits.................................................... 5
3.1 Mobil Deliveries.................................. 5
3.1.1 Escrow Agreement..................... 6
3.1.2 Cash or Letter of Credit............. 6
3.2 Chartwell Deliveries.............................. 6
4. Agreements to be Executed at the Closing.................... 6
4.1 Restated Partnership Agreement.................... 6
4.2 Xxxxxxxx Group Documents.......................... 6
4.2.3 Amended and Restated Indemnity and
Hold Harmless Agreements............. 7
4.3 Mobil Documents................................... 7
4.3.1 Franchise Agreement.................. 7
4.3.2 Marketing Services Agreement......... 7
4.3.3 Joint Project Memorandum of
Understanding........................ 7
4.3.4 Personnel Services Agreement......... 8
4.3.5 Lubricant Supply Contracts........... 8
4.4 Chartwell Documents............................... 8
4.4.1 Financial Advisory Agreement......... 8
4.4.2 Management Consulting Agreement...... 8
5. Closing Conditions Precedent................................ 8
5.1 Interest Purchase Agreement Closing............... 8
5.2 Operative Agreements.............................. 8
5.3 New Partner Purchases............................. 9
5.4 Financings........................................ 9
5.4.1 Note Consent......................... 9
5.4.2 Petro Bank Credit Agreement.......... 9
5.5 Realco Transactions............................... 9
5.6 Opinions.......................................... 9
5.6.1 Akin, Gump........................... 9
5.6.2 Xxxx, Xxxxx.......................... 10
5.6.3 Xxxxxxxx, Xxxxxx..................... 10
5.7 Representations and Warranties.................... 10
5.8 Covenant Compliance............................... 10
5.9 Consents.......................................... 11
5.10 No Litigation..................................... 11
5.10.1 No Injunctions....................... 11
5.10.2 Government Action.................... 12
5.10.3 No Orders............................ 12
5.11 Conversion........................................ 12
6. Conduct Pending Closing..................................... 12
6.1 Efforts to Satisfy................................ 12
6.2 Deliveries........................................ 13
6.3 Consents.......................................... 13
6.4 Conversion........................................ 13
7. Effectiveness and Termination............................... 13
7.1 Effectiveness..................................... 13
7.2 Termination....................................... 13
7.2.1 Terminating Party.................... 13
7.2.2 Consent.............................. 14
7.2.3 Interest Purchase Agreement.......... 14
7.2.4 Default Grace Period................. 14
7.3 Effects of Termination............................ 14
8. Representations and Warranties.............................. 15
8.1 Organization...................................... 15
8.2 Power and Authority............................... 16
8.3 No Violations..................................... 16
8.4 No Conflict....................................... 17
8.5 Consents.......................................... 17
8.6 Litigation........................................ 18
8.7 By the Xxxxxxxx Group............................. 18
8.7.1 Ownership............................ 18
8.7.2 The Company.......................... 18
9. Indemnification............................................. 19
9.1 General........................................... 19
9.1.1 Standard............................. 19
9.1.2 Actual Damages....................... 19
9.1.3 Xxxxxxxx Cap......................... 20
9.1.4 Chartwell Cap........................ 20
9.1.5 Mobil Cap............................ 20
9.1.6 Xxxxxxxxx Cap........................ 20
9.1.7 Chartwell and Mobil.................. 20
9.2 No Recourse....................................... 21
9.3 Survival.......................................... 21
10. Miscellaneous............................................... 21
10.1 Interpretation Not Affected by Headings........... 21
10.2 Governing Law..................................... 22
10.3 Severability...................................... 22
10.4 Further Assurances................................ 22
10.5 Amendment; Waiver................................. 22
10.5.1 Amendment............................ 22
10.5.2 Restriction.......................... 23
10.6 Assignment Restricted............................. 23
10.7 Specific Performance.............................. 24
10.8 Notices........................................... 24
10.9 Counterparts...................................... 26
10.10 No Third Party Beneficiaries...................... 26
10.11 Entire Agreement.................................. 26
10.12 Expenses.......................................... 27
10.12.1 At Closing........................... 27
10.12.2 Failure to Close..................... 27
10.12.3 The Company.......................... 27
EXHIBITS
Exhibit A-1 - Fremont Partners and The Xxxxxxxx Group
Ownership Interests and Amounts
Exhibit A-2 - New Partners Ownership Interests and Amounts
Exhibit B - Restated Partnership Agreement
Exhibit C - Interest Purchase Agreement
Exhibit D - Escrow Agreement
Exhibit E - Xxxxx X. Xxxxxxxx, Xx. Employment Agreement
Exhibit F - Xxxxx X. Xxxxxxxx, Xx. Employment Agreement
Exhibit G - Mobil PMPA Distributor Motor Fuels
Franchise Agreement
Exhibit H - Mobil Marketing Services Agreement
Exhibit I - Mobil Memorandum of Understanding Joint
Project Development
Exhibit J - Mobil Secondment Agreement
Exhibit K - Mobil Master Supply Contract for Resale of
Oils and Greases
Exhibit L - Chartwell Financial Advisory Agreement
Exhibit M - Chartwell Management Consulting Agreement
Exhibit N - Consent Solicitation
Exhibit O - First National Bank of Boston Amended and
Restated Credit Facility Commitment Letter
and Term Sheet
Exhibit P-1 - Form of Opinion of Akin, Gump, Strauss,
Exhibit P-2 Xxxxx & Xxxx, L.L.P.
Exhibit Q - Form of Opinion of Kemp, Smith, Xxxxxx &
Xxxxxxx
Exhibit R - Form of Opinion of Xxxxxxxx, Xxxxxx & Finger
SCHEDULES
Schedule 5.9 - Consents
Schedule 8.4 - Items of Conflict
Schedule 8.5 - Consents
Schedule 8.7.1 - Ownership Interests
OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT ("Omnibus Agreement"), is dated as of
October [ ], 1996, by and among Xxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx, Sr."),
Xxxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx, Jr."), JAJCO II, Inc., a Delaware
corporation ("JAJCO"), Petro, Inc., a Texas corporation ("Petro" and
together with Xxxxxxxx, Sr., Xxxxxxxx, Jr., and JAJCO, collectively, the
"Xxxxxxxx Group"), Mobil Long Haul, Inc., a Delaware corporation ("Mobil"),
Petro Holdings GP Corp., a Delaware corporation ("Holdings GP"), Petro
Holdings LP Corp., a Delaware corporation ("Holdings LP", and together with
Holdings GP, "Chartwell") and Petro Stopping Centers, L.P., a Delaware
limited partnership (the "Company").
WITNESSETH:
WHEREAS, the Company is currently owned by Sequoia Ventures, Inc.,
a Delaware corporation ("SVI"), Roadside, Inc., a Delaware corporation
("Roadside", and together with SVI, collectively the "Fremont Partners")
and the Xxxxxxxx Group, in the respective ownership interests and amounts
reflected on Exhibit A-1 hereto; and
WHEREAS, the parties hereto desire to take all actions necessary or
desirable to change the ownership structure of the Company so that, upon
completion of the transactions (the "Transactions") contemplated hereby and
in the Operative Agreements (as defined below), the Company will be owned
by Chartwell, the Xxxxxxxx Group and Mobil (collectively, the "New
Partners") in the respective ownership interests and amounts reflected on
Exhibit A-2 hereto and as more fully described in an amended and restated
partnership agreement of the Company to be executed at the Closing (as
hereafter defined) by the New Partners, in the form attached hereto as
Exhibit B (the "Restated Partnership Agreement"); and
WHEREAS, the Company, the Fremont Partners, Chartwell and Mobil
have, simultaneously with the execution of this Omnibus Agreement executed
and delivered an Interest Purchase Agreement (the "Interest Purchase
Agreement"), a copy of which is attached hereto as Exhibit C, pursuant to
which Roadside and SVI have agreed to sell their interests in the Company
at the Closing (as defined therein) to Chartwell and Mobil, in exchange for
approximately $28,500,000 in cash, subject to adjustments pursuant to the
terms of the Interest Purchase Agreement, to be paid at the Closing (the
"Purchase Price"); and
WHEREAS, Chartwell and Mobil desire to make capital contributions
to the Company and Realco (as defined below) at the Closing for the purpose
of acquiring additional partnership interests in the Company and interests
in Realco; and
WHEREAS, the New Partners wish to establish various contractual
arrangements and relationships among themselves and between each of them
and the Company relating to the Transactions and the operation of the
Company after the Closing;
NOW, THEREFORE, in consideration of the premises, mutual covenants
and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms used herein and not defined
herein shall have the meanings ascribed to them in the Restated Partnership
Agreement.
Term Defined in Section
---- ------------------
Affiliates 5.10.2
Xxxxxxxx Group Preamble
Xxxxxxxx, Jr. Preamble
Xxxxxxxx, Sr. Preamble
Chartwell Preamble
Closing 2
Company Preamble
Company Material Adverse Effect 5.7
Conversion 2.5
Escrow Agent 3.1.2
Escrow Agreement 3.1.1
Expenses 10.12.1
Financing Arrangements 5.4
Fremont Partners Recitals
General Partnership Interest 2.1
Holdings GP Preamble
Holdings LP Preamble
Indemnitees 9.1
Indemnitor 9.1
Interest Purchase Agreement Recitals
JAJCO Preamble
Letter of Credit 3.1.2
Liens 8.7.1
Limited Partnership Interest 2.2
Mobil Preamble
New Partner Material Adverse Effect 5.7
New Partners Recitals
Notes 5.4.1
Omnibus Agreement Preamble
Operative Agreements 5.2
Petro Preamble
Purchase Price Recitals
Realco 5.5
Restated Partnership Agreement Recitals
Roadside Recitals
SVI Recitals
Terminating Party 7.2.1
Transactions Recitals
2. Transactions. Upon the terms and subject to the conditions set
forth in the Interest Purchase Agreement and the Restated Partnership
Agreement, the following transactions shall close simultaneously with the
Closing under the Interest Purchase Agreement (the "Closing"):
2.1 General Partnership Interest Acquisition. Holdings GP shall
purchase, acquire and accept from Roadside, the 1% Roadside General
Partnership Interest (as defined in the Interest Purchase Agreement).
2.2 Limited Partnership Interest Acquisitions. Holdings LP and
Mobil shall purchase, acquire and accept from SVI the aggregate Limited
Partnership Interests owned by the Fremont Partners (as defined in the
Interest Purchase Agreement).
2.3 Holdings LP Contribution. In consideration of a capital
contribution to the Company, Holdings LP shall purchase, acquire and accept
from the Company the balance of its Limited Partnership Interests.
2.4 Mobil Contribution. In consideration of a capital contribution
to the Company, Mobil shall purchase, acquire and accept from the Company
the balance of its Limited Partnership Interests.
2.5 Xxxxxxxx Group Interests. The Xxxxxxxx Group shall retain
partnership interests in the Partnership, as set forth on Exhibit A-2
hereto, which shall include the conversion prior to the Closing of all but
1.2139% of Petro's General Partnership Interests in the Partnership into
Limited Partnership Interests (the "Conversion").
2.6 New Ownership Structure. At the Closing, after completion of
the transactions contemplated herein and in the Interest Purchase
Agreement, the ownership of the Company shall be as set forth on Exhibit
A-2 hereto.
2.7 Realco Contribution. At the Closing, the Chartwell Partners and
Mobil shall contribute $2,620,733 and $379,267, respectively, to Realco,
and shall contribute $2,620,733 and $379,267 less, respectively, to the
Company.
2.8 Cash Contributions. To accomplish the foregoing, the following
parties hereby agree to provide the following cash funds at the Closing to
be paid to the Fremont Partners, the Company or Realco (subject to
adjustments in the Purchase Price), as applicable:
Person Cash Commitment
Holdings GP $ 400,000
Holdings LP 20,330,000
Long Haul 15,000,000
2.9 Xxxxxxxxx. The New Partners agree that Xxxxxxx Xxxxxxxxx shall
have the opportunity to acquire on the terms hereof, for $1,000,000 in
cash, the limited partnership interests described on Exhibit A-2 hereto and
in the Restated Partnership Agreement. In order to exercise such
opportunity, Xxxxxxxxx must execute and deliver to the parties hereto a
copy of this Agreement on or before November 1, 1996, wherein Xxxxxxxxx
shall become a "New Partner" for purposes of this Agreement.
3. Deposits.
3.1 Mobil Deliveries. Concurrently with the execution hereof and of
the Interest Purchase Agreement, Mobil shall:
3.1.1 Escrow Agreement. Execute and deliver the escrow agreement in
substantially the form of Exhibit D hereto (the "Escrow Agreement"); and
3.1.2 Cash or Letter of Credit. Deliver to Fremont Partners a
letter of credit in the amount of $500,000 naming the Escrow Agent (as
defined in the Escrow Agreement) as account beneficiary in substantially
the form of Exhibit A to the Escrow Agreement (the "Letter of Credit") or
deposit with the Escrow Agent the amount of $500,000 cash, which deposit
shall be governed by the terms of the Escrow Agreement; and
3.2 Chartwell Deliveries. Concurrently with the execution hereof
and of the Interest Purchase Agreement, Chartwell shall:
3.2.1 Escrow Agreement. Execute and deliver the Escrow Agreement;
and
3.2.2 Cash Deposit. Deposit with the Escrow Agent the amount of
$500,000 in cash, which deposit shall be governed by the terms of the
Escrow Agreement.
4. Agreements to be Executed at the Closing.
4.1 Restated Partnership Agreement. At the Closing, the New
Partners shall execute and deliver the Restated Partnership Agreement.
4.2 Xxxxxxxx Group Documents.
4.2.1 Employment Agreements. At the Closing, the Company, Xxxxxxxx,
Sr. and Xxxxxxxx, Jr., shall each execute and deliver the employment
agreements, each in substantially the forms of Exhibits E and F hereto; and
4.2.2 Extensions. At the Closing, the Company, and the affiliates
of the Xxxxxxxx Group who are parties thereto (the "Xxxxxxxx Parties"),
shall extend for five years and reflect the existence of the Restated
Partnership Agreement, in three of the Xxxxxxxx Parties agreements (C&R
Distributing Inc., El Paso Vending and Amusement Company and Motor Media
Inc.).
4.2.3 Amended and Restated Indemnity and Hold Harmless Agreements.
At the Closing, the Xxxxxxxx Group shall amend and restate, if necessary,
the various Amended and Restated Indemnity and Hold Harmless Agreements
provided for the benefit of the Partnership in whatever manner necessary to
prevent, if possible, any of the Xxxxxxxx Group from incurring any taxable
gain upon closing of the various transactions described herein.
4.3 Mobil Documents. At the Closing, the Company and Mobil Oil
Corporation shall execute and deliver:
4.3.1 Franchise Agreement. A PMPA Distributor Motor Fuels Franchise
Agreement in substantially the form of Exhibit H hereto;
4.3.2 Marketing Services Agreement. A Management Marketing Services
Agreement in substantially the form of Exhibit I hereto;
4.3.3 Joint Project Memorandum of Understanding. A Memorandum of
Understanding Joint Project Development in substantially the form of
Exhibit J hereto;
4.3.4 Personnel Services Agreement. A Secondment Agreement in
substantially the form of Exhibit K hereto; and
4.3.5 Lubricant Supply Contracts. A Master Supply Contract for
Resale of Oils and Greases in substantially the form of Exhibit L hereto.
4.4 Chartwell Documents. At the Closing, the Company and affiliates
of Chartwell shall execute and deliver:
4.4.1 Financial Advisory Agreement. A Financial Advisory Agreement
in substantially the form of Exhibit M hereto; and
4.4.2 Management Consulting Agreement. A Management Consulting
Agreement in substantially the form of Exhibit N hereto.
5. Closing Conditions Precedent. The obligations of each of the New
Partners to close the Transactions are subject to the satisfaction (unless
such condition is waived by each New Partner to the extent such New Partner
is a party thereto or would be materially adversely affected by the
non-fulfillment thereof) of the following conditions:
5.1 Interest Purchase Agreement Closing. The transactions
contemplated under the Interest Purchase Agreement shall have closed;
5.2 Operative Agreements. All other agreements required by Section 4
(together with the Interest Purchase Agreement and the Escrow Agreement,
collectively, the "Operative Agreements") shall have been duly executed and
delivered by all ncessary parties;
5.3 New Partner Purchases. All transactions required by Section 2
hereof have been completed;
5.4 Financings. The following financing arrangements (the
"Financing Arrangements") shall have closed:
5.4.1 Note Consent. The Consent Solicitation relating to the
Company's 12.5% Notes (the "Notes") on substantially the terms attached
hereto as Exhibit O;
5.4.2 Petro Bank Credit Agreement. The debt financing contemplated
in the Commitment Letter and attached term sheet attached hereto as Exhibit
P hereto, shall be available to the Company substantially on the terms
indicated therein; and
5.5 Realco Transactions. Prior to the Closing, a separate Delaware
limited partnership or limited liability company ("Realco") shall have been
formed, to be owned immediately following the Closing proportionately by
the New Partners in the same proportion as their common ownership of the
general partnership interests and limited partnership interests of the
Company; the initial capitalization of which shall be $1,000.
5.6 Opinions. Favorable opinions of the following law firms,
reasonably acceptable to the addressees thereof and their counsel, shall
have been delivered to the New Partners:
5.6.1 Akin, Gump. Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.,
counsel to Chartwell and Mobil substantially in the form of Exhibit P-1 and
P-2 hereto;
5.6.2 Xxxx, Xxxxx. Kemp, Smith, Xxxxxx & Xxxxxxx, counsel to the
Xxxxxxxx Group substantially in the form of Exhibit Q hereto; and
5.6.3 Xxxxxxxx, Xxxxxx. Xxxxxxxx, Xxxxxx & Finger, substantially in
the form of Exhibit R hereto.
5.7 Representations and Warranties. All of the representations and
warranties contained in this Omnibus Agreement shall be true and correct in
all respects (without reference to any materiality qualifications contained
therein) as of the date made and as of the Closing Date as if made on and
as of the Closing Date (except to the extent that any representation or
warranty is made expressly as of a specific date, in which case such
representation or warranty shall be true and correct as of such specified
date), unless the failure of such representations of warranties to be true
and correct as of any of such dates would not, in the aggregate, reasonably
be expected to have a Company Material Adverse Effect (as defined in the
Interest Purchase Agreement) or a or a material adverse effect on the
ability of any party hereto to consummate the transactions contemplated
hereby or, following the Closing, on the business, results of operations or
financial condition of such party (a "New Partner Material Adverse
Effect").
5.8 Covenant Compliance. Each party shall have performed and
complied with, in all respects (without reference to any materiality
qualifications contained therein), all of the covenants, conditions and
agreements required by this Agreement to be performed or complied with by
it prior to or at the Closing, unless the failure so to perform or comply
would not, in the aggregate, reasonably be expected to have a Company
Material Adverse Effect or a New Partner Material Adverse Effect; and the
parties shall have received at the time of the Closing certificates from
each of the other parties reasonably satisfactory in form certifying as to
the satisfaction by each party of all of the conditions set forth in
Section 5.7 and this Section 5.8.
5.9 Consents. All material consents, permits, approvals and
requirements of Governmental Authorities (as defined in the Interest
Purchase Agreement) and third parties (including any appraisals or fairness
opinions which may be required under the Indenture relating to the Notes)
necessary for consummation of the transactions contemplated in this
Agreement, all of which are listed on Schedule 5.9 hereto, shall have been
obtained.
5.10 No Litigation.
5.10.1 No Injunctions. No action, suit, claim or administrative
proceeding shall be pending seeking to restrain, enjoin or prohibit or
declare illegal, or seeking damages in connection with, any part of the
Omnibus Agreement or the transactions contemplated hereby, which would
reasonably be expected to result in a preliminary or permanent injunction
against consummating the transactions contemplated hereby or, if the
transactions contemplated hereby were consummated, an order to nullify or
render ineffective this Agreement or such transactions, or the recovery
against any party hereto of substantial damages or otherwise have a Company
Material Adverse Effect or a New Partner Material Adverse Effect.
5.10.2 Government Action. None of the parties to this Agreement or
their Affiliates (as defined in the Restated Partnership Agreement) shall
have received written notice from any Governmental Authority (as defined in
the Interest Purchase Agreement) of: (A) its intention to institute any
action or proceeding to restrain or enjoin or nullify or render ineffective
this Agreement or the transactions contemplated hereby if consummated, or
commence any investigation into the consummation of this Agreement and the
transactions contemplated hereby; or (B) the actual commencement of such an
investigation, which in the case of either clause (A) or clause (B) would
reasonably be expected to have a Company Material Adverse Effect or a New
Partner Material Adverse Effect.
5.10.3 No Orders. No order, decree or judgment of any Governmental
Authority shall be subsisting against any of the parties which would render
it unlawful or materially restrain or limit the ability of such party as of
the Closing Date, to effect the transactions contemplated hereunder in
accordance with the terms hereof.
5.11 Conversion. The Conversion shall have been completed.
6. Conduct Pending Closing.
6.1 Efforts to Satisfy. Each party hereto shall use all
commercially reasonable efforts to satisfy the conditions to Closing set
forth in this Omnibus Agreement and otherwise to consummate the
Transactions.
6.2 Deliveries. Consistent with the terms and conditions hereof,
each party hereto shall execute and deliver such instruments, certificates
and other documents, and take such other action as each other party may
reasonably require in order to carry out this Omnibus Agreement and the
Transactions, including but not limited to authorizing the Company at the
Closing to execute, deliver and perform its Obligations under the Operative
Agreements.
6.3 Consents. Each of the New Partners shall cause the Company
effective at the Closing, to obtain all necessary approvals, and to take
all other actions necessary to authorize the execution and performance of
the Operative Agreements.
6.4 Conversion. Prior to the Closing, Petro shall convert all but
1.2139% of its General Partnership Interest to a Limited Partnership
Interest, and the Company shall consent thereto.
7. Effectiveness and Termination.
7.1 Effectiveness. This Omnibus Agreement shall become effective as
of the date hereof.
7.2 Termination. The Omnibus Agreement shall terminate:
7.2.1 Terminating Party. By any party hereto (the "Terminating
Party") if (x) any other party is in material breach of this Omnibus
Agreement which would give rise to a claim for damages under Section 7.3
hereof and (y) such Terminating Party is not then in material breach of
this Omnibus Agreement;
7.2.2 Consent. By mutual written consent of all parties hereto
including the Company; or
7.2.3 Interest Purchase Agreement. Automatically upon termination
of the Interest Purchase Agreement in accordance with its terms.
7.2.4 Default Grace Period. Notwithstanding any other provision of
this Agreement, if a default by any party hereto can be cured or a
condition satisfied within fifteen (15) business days after the time
initially fixed for Closing as set forth herein, then the Closing Date
shall be extended for the period (not to exceed fifteen (15) business days
and in no event beyond February 1, 1997) required for such party to make
such cure or satisfaction; provided that such extension of time does not,
and would not reasonably be expected to, have a New Partner Material
Adverse Effect (on any party desiring to terminate the Agreement) on the
New Partners or a Company Material Adverse Effect. If such cure or
satisfaction cannot be, or is not, completed within fifteen (15) business
days after such initial time, then the rights of the parties shall be
governed by the applicable provisions of this Agreement.
7.3 Effects of Termination. If this Omnibus Agreement is terminated
and the Transactions contemplated hereby are not consummated, this Omnibus
Agreement shall become null and void and of no further force and effect,
except for any liability incurred by a party hereto as a result of any
breach of a representation, warranty, covenant or agreement contained in
this Omnibus Agreement causing or permitting termination subject to the
limitations set forth in Section 9 hereof; provided, however, that no party
shall have any liability for any such breach unless such breach, together
with all other breaches of such party shall, in the aggregate, constitute a
Company Material Adverse Effect or a New Partner Material Adverse Effect;
provided, further, that for purposes of determining whether or not such
breach or breaches, in the aggregate, constitute a Company Material Adverse
Effect or a New Partner Material Adverse Effect, any materiality
qualification of any individual representation, warranty, covenant or
agreement contained in this Agreement shall be disregarded.
8. Representations and Warranties. In order to induce the parties
to enter into this Omnibus Agreement and the Operative Agreements and to
consummate the transactions contemplated herein, each party hereto knowing
that the other parties are relying thereon, hereby represents and warrants
as follows:
8.1 Organization. Such party: (i) if an entity, is a corporation
duly organized, validly existing and in good standing under the laws of the
applicable jurisdiction of organization; (ii) has full power and authority
to carry on its business as now conducted and as proposed to be conducted
under the Operative Agreements and to own, use and lease its assets; and
(iii) is duly qualified to do business in each jurisdiction in which the
nature of its business or the ownership, leasing or holding of its
properties or assets requires such qualification.
8.2 Power and Authority. Such party has full power and authority to
enter into and to perform its obligations under this Omnibus Agreement and
the Operative Agreements to which it is a party in accordance with their
respective terms. Such party's execution, delivery and performance of this
Omnibus Agreement, the Operative Agreements and the transactions
contemplated thereby have been duly and wholly authorized by all requisite
action, and have been (or, to the extent to be executed in the future, will
be) duly executed and delivered by such party and constitute or will
constitute valid and binding obligations of such party, and enforceable
against such party in accordance with their terms except as such
enforceability is limited by bankruptcy, insolvency, moratorium or other
similar laws of general application relating to or affecting the
enforcement of creditors' rights generally and the exercise of judicial
discretion in accordance with general equitable principles.
8.3 No Violations. There are no violations by such party of any
law, statutes, ordinances, rules, regulations, orders or requirements of
any governmental agency or body having jurisdiction over such party, the
compliance or non-compliance with which could reasonably be expected to
have a material adverse effect on the Company or on the ability of such
party to consummate the Transactions.
8.4 No Conflict. Except as set forth on Schedule 8.4, the
execution, delivery and performance of this Omnibus Agreement and the other
documents to be executed in connection herewith, the consummation of the
transactions contemplated hereby and thereby and the compliance with the
provisions hereof and thereof by any party hereto do not and will not,
after the giving of notice, or the lapse of time, or otherwise: (i)
conflict with or violate any provisions of the Articles of Incorporation or
bylaws of such party; (ii) result in the breach of any of the terms of,
constitute a default under, conflict with, result in, or constitute grounds
for, the termination or alteration of, or result in the acceleration of the
performance required by the terms of, any agreement, license, permit or
other instrument to which any party hereto is a party or by which such
party or any of its property is bound or affected, or result in the
creation of any encumbrance upon any of their assets; (iii) violate, result
in the breach of, or conflict with, any laws, regulations, orders, writs,
ordinances, injunctions, decrees, rules, or judgments applicable to such
party or any of its assets.
8.5 Consents. Except as set forth on Schedule 8.5, no consent,
waiver or approval of, or the filing of any notice or report with, any
third party or Governmental Authority is required in connection with the
execution, delivery and performance by such party of this Omnibus
Agreement, the Operative Agreements or any other document contemplated
hereby, or the consummation of the transactions contemplated hereby (with
or without the giving of notice or lapse of time).
8.6 Litigation. As of the date hereof, there is no civil, criminal
or administrative action, suit, demand, claim, litigation, action,
proceeding or investigation of any nature pending or, to the best of such
party's knowledge, threatened against or affecting such party that would
adversely affect its ability to consummate the transactions contemplated in
this Omnibus Agreement or the Operative Agreements.
8.7 By the Xxxxxxxx Group. Each party in the Xxxxxxxx Group hereby
jointly and severally represents and warrants to the other New Partners
that:
8.7.1 Ownership. Except as set forth in the Second Amended and
Restated Partnership Agreement dated as of December 31, 1994 and, except as
disclosed on Schedule 8.7.1 hereto, the Xxxxxxxx Group owns beneficially
and of record the respective ownership interests and amounts reflected on
Exhibit A-1 hereto, free and clear of all claims, charges, liens, security
interests, pledges, restrictions or other encumbrances of any nature
whatsoever (collectively, the "Liens"); and
8.7.2 The Company. Subject to the authorization of the Operative
Agreements by the Company at the Closing, all representations and
warranties of the Company in Article III of the Interest Purchase Agreement
are true and correct as stated therein; provided that, for purposes of this
Section 8.7.2, the phrases "the transactions contemplated hereby", "the
transactions provided for hereby" or "the obligations hereunder" contained
in such Article III of the Interest Purchase Agreement shall mean all
transactions and obligations contemplated in and under the Interest
Purchase Agreement, this Omnibus Agreement and the other Operative
Agreements; and provided, further, that the transfer of assets by the
Company to Realco requires certain permits and approvals of Governmental
Authorities.
9. Indemnification.
9.1 General. Each party hereto and their respective successors and
permitted assigns (an "Indemnitor"), shall indemnify, defend and hold each
other party, its directors, officers, shareholders, partners, agents and
employees, and the Company (the "Indemnitees"), harmless from and against
all suits, claims, liabilities, damages, losses and costs (including but
not limited to Expenses) of every kind and character (including reasonable
attorneys' fees and accountants' fees and disbursements and costs of
investigation) resulting from or relating to or arising out of the
inaccuracy, nonfulfillment, nonperformance, or breach of any
representation, warranty, covenant, or agreement made by such Indemnitor
herein; provided that:
9.1.1 Standard. For purposes of this Section 9, each Indemnitor
hereto shall be liable only for actual damages caused, and shall not be
liable for any consequential damages or lost profits;
9.1.2 Actual Damages. No Indemnitor shall have any liability,
obligation or responsibility to any other party hereto or their respective
affiliates under this Section 9 or otherwise in connection with this
Agreement or the Interest Purchase Agreement except for the willful breach
of this Agreement by any Indemnitor which prevents the occurrence of the
consummation of this Agreement;
9.1.3 Xxxxxxxx Cap. For purposes of this Section 9, each Indemnitor
in the Xxxxxxxx Group shall be jointly and severally liable, and the
maximum total liability for all Indemnitors in the Xxxxxxxx Group under
this Section 9 to Mobil and Chartwell shall not exceed $1,000,000;
9.1.4 Chartwell Cap. For purposes of this Section 9, Holdings GP
and Holdings LP shall be jointly and severally liable, and the maximum
total liability for Chartwell under this Section 9 shall not exceed
$500,000 (less any amounts paid by such party to the Escrow Agent and not
repaid to such party by the Escrow Agent); and
9.1.5 Mobil Cap. The maximum total liability for Mobil under this
Section 9 shall not exceed $500,000 (less any amounts paid by such party to
the Escrow Agent and not repaid to such party by the Escrow Agent).
9.1.6 Xxxxxxxxx Cap. The maximum total liability of Xxxxxxxxx, if
he elects to participate, under this Section 9 shall not exceed $50,000.
9.1.7 Chartwell and Mobil. Chartwell and Mobil shall be jointly and
severally liable to the Company for actual damages arising out of any
breach by either of them of any representations, warranties or covenants
under this Agreement which results in the transactions contemplated herein
not Closing, and the Company shall have recourse only to the Escrow Fund
with respect thereto.
9.2 No Recourse. Notwithstanding Section 9.1, no employee, officer,
director, shareholder or partner of a party hereto or of any affiliate
thereof shall have any liability under this Omnibus Agreement or under any
Operative Agreement unless such employee, officer, director, shareholder or
partner is a party hereto or thereto.
9.3 Survival. The representations, warranties and covenants set
forth in this Agreement shall survive the Closing (other than those in
Section 8.7.2 which shall not survive the Closing).
10. Miscellaneous.
10.1 Interpretation Not Affected by Headings. The division of this
Omnibus Agreement into sections, articles, paragraphs and other portions
and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Omnibus
Agreement. The terms "this Omnibus Agreement", "hereof", "herein",
"hereunder" and similar expressions refer to this Omnibus Agreement and not
to any particular Section, article, paragraph or other portion hereof and
include any agreement or instrument supplementary or ancillary hereto.
10.2 Governing Law. This Omnibus Agreement shall be governed and
interpreted in accordance with the laws of the state of Delaware
(regardless of the laws that might be applicable under principles of
conflicts of law) as to all matters, including but not limited to matters
of validity, construction, effect and performance.
10.3 Severability. If any one or more of the provisions contained
in this Omnibus Agreement or any document executed in connection herewith
shall be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the remaining
provisions contained herein or therein shall not in any way be affected or
impaired. In the case of any such invalidity, illegality or
unenforceability, the parties hereto agree to use their best efforts to
achieve the purpose of such provision by a new legally valid and
enforceable stipulation.
10.4 Further Assurances. Each party hereto shall do all such acts
and execute and deliver all such documents or instruments as may reasonably
be requested by any other party hereto or their respective counsel as may
be necessary or desirable to complete the transactions contemplated by this
Omnibus Agreement and the Operative Agreements and to carry out the
provisions hereof and thereof.
10.5 Amendment; Waiver.
10.5.1 Amendment. This Omnibus Agreement may be amended, modified
or superseded, and any of the terms, covenants or conditions hereof may be
waived, at any time by a written instrument executed by the parties hereto
(other than the Company) or, in the case of a waiver, by the party waiving
compliance. The failure at any time of any party hereto to require
performance by another party of any responsibility or obligation provided
for in this Omnibus Agreement shall in no way affect the full right to
require such performance at any time thereafter, nor shall the waiver by
any party of a breach of any provision of this Omnibus Agreement by another
party constitute a waiver of the responsibility or obligation itself.
10.5.2 Restriction. Except with the prior written consent of the
Company, the parties hereto shall not amend, waive or otherwise modify this
Agreement in any manner that would be reasonably likely to have the effect
of (i) increasing any cost or liability on the part of the Fremont Partners
in connection with the consummation of the transactions provided for hereby
or thereby or (ii) decreasing the likelihood of the Closing occurring under
this Agreement or of the closing occurring under the Interest Purchase
Agreement.
10.6 Assignment Restricted. This Omnibus Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and permitted assigns. No party hereto may assign this Omnibus
Agreement, or its rights or obligations hereunder, to any other person
without the prior written consent of each of the other parties hereto,
other than to a wholly owned Affiliate and where the assignor continues to
remain fully liable for all its obligations hereunder.
10.7 Specific Performance. Each of the parties hereto agrees that
the other parties hereto shall be entitled, in addition to any other
remedies or damages available to any of them in the event of any breach of
this Omnibus Agreement to specific performance of the obligations of the
other parties under this Omnibus Agreement.
10.8 Notices. Any and all notices or other communications required
or permitted by this Omnibus Agreement or by law to be served on or given
to any party hereto by another party to this Omnibus Agreement shall be in
writing and shall be deemed duly served when personally delivered to the
party to whom they are directed, or in lieu of such personal service when
deposited in the United States mail, first-class postage prepaid, or by
confirmed telecopy, or by recognized overnight delivery service, addressed
as follows:
If to any member of
the Xxxxxxxx Group: Xxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxxx, Xx.
Petro Stopping Centers, L.P.
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000;
With copy to: Kemp, Smith, Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxxx
00xx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to the Company: Petro Stopping Centers, L.P.
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copies to: Skadden, Arps, Slate, Xxxxxxx
& Xxxx
Four Embarcadero Center
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Kemp, Smith, Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxxxxx Xxxx Xxxxx
Xx Xxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Mobil: Mobil Long Haul Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Breed and
Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(000) 000-0000
With copy to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx., P.C.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to Holdings LP
or Holdings GP: c/o Chartwell Investments Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With copy to: Akin, Gump, Strauss, Xxxxx
& Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx., P.C.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
10.9 Counterparts. This Omnibus Agreement shall be executed in
multiple counterparts, and may be executed in any number of additional
counterparts by any one or more of the parties bound hereby. A counterpart
shall be deemed to an original and such counterparts shall together
constitute the same agreement.
10.10 No Third Party Beneficiaries. Except as set forth in Section
10.12.3 hereto, none of the provisions of this Omnibus Agreement shall be
for the benefit of, or enforceable by, any person other than the parties
hereto and their permitted successors and assigns.
10.11 Entire Agreement. This Omnibus Agreement (including the
Exhibits and Schedules hereto, which are incorporated herein and made a
part hereof and the arrangements referred to in Section 10.12.2 below),
together with the Operative Agreements, sets forth the entire understanding
and agreement between the parties as to the matters covered herein and
supersedes and replaces any prior understanding, agreement or statement of
intent, in each case, written or oral, including without limitation the
letters of intention and other correspondence heretofore exchanged between
the parties.
10.12 Expenses.
10.12.1 At Closing. The parties agree that at the Closing, all
out-of-pocket costs and expenses of the New Partners and their affiliates
incurred in connection with the negotiation, preparation, execution and
delivery of this Agreement, the Operative Agreements, the Financing
Arrangements and all other documentation and transactions contemplated
hereby and thereby, the due diligence investigation, and the closing of the
transactions contemplated hereby and thereby (collectively, the "Expenses")
shall, except as otherwise provided in the Interest Purchase Agreement, be
borne and paid by the Company.
10.12.2 Failure to Close. In the event that the transactions
contemplated herein are not consummated, subject to separate arrangements
heretofore entered into between Chartwell and Mobil, and subject to any
party's right to indemnification pursuant to Section 9 hereof, each party
shall bear its own expenses.
10.12.3 The Company. The Company shall be a party to this Agreement
solely for purposes of Section 6.4, Section 7.2.2, Section 9 and Section
10.5.2 hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Omnibus Agreement as of the date first above written.
Xxxxx X. Xxxxxxxx, Xx.
Xxxxx X. Xxxxxxxx, Xx.
JAJCO II, INC.
By:
Name:
Title:
PETRO, INC.
By:
Name:
Title:
MOBIL LONG HAUL INC.
By:
Name:
Title:
PETRO HOLDINGS GP CORP.
By:
Name:
Title:
PETRO HOLDINGS LP CORP.
By:
Name:
Title:
PETRO STOPPING CENTERS, L.P.
By:
Name:
Title:
