EXHIBIT 10.50
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INTEREST PURCHASE AGREEMENT
dated as of October 18, 1996
Between
Mobil Long Haul Inc., Petro Holdings GP Corp. and Petro Holdings LP Corp.
as Purchasers
and
Roadside, Inc., Sequoia Ventures Inc.,
and Petro Stopping Centers, L.P.
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TABLE OF CONTENTS
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ARTICLE I
PURCHASE AND SALE OF THE FREMONT INTERESTS
1.1 Definitions................................................... 2
1.2 Purchase and Sale............................................. 5
1.3 Consideration................................................. 5
1.4 Closing....................................................... 6
1.5 Purchase Price True-Up........................................ 7
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE FREMONT PARTNERS
2.1 Organization and Authority; Validity; No Conflict............. 8
2.2 Capitalization................................................ 10
2.3 Good Title.................................................... 10
2.4 No Brokers.................................................... 10
2.5 No Other Representations...................................... 10
2.6 Financial Statements.......................................... 10
2.7 Material Adverse Change....................................... 11
2.8 Omnibus Agreement............................................. 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 Organization and Authority; Validity; No Conflict............. 11
3.2 Equity of the Company......................................... 13
3.3 SEC Reports; Financial Statements............................. 13
3.4 Undisclosed Liabilities....................................... 14
3.5 Absence of Certain Changes and Events......................... 14
3.6 Litigation; Injunctions....................................... 16
3.7 Government Authorizations and Permits; Compliance
with Applicable Laws........................................ 16
3.8 Real Property................................................. 17
3.9 Contracts..................................................... 17
3.10 Taxes......................................................... 18
3.11 Employment Matters............................................ 19
3.12 Employment, Severance and Termination Agreements, etc......... 20
3.13 Insurance..................................................... 21
3.14 Affiliated Party Transactions................................. 21
3.15 Environmental Matters......................................... 22
3.16 No Brokers.................................................... 23
3.17 No Other Representations...................................... 23
3.18 Assets........................................................ 23
3.19 Intangible Property........................................... 23
3.20 Franchises.................................................... 24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
4.1 Accredited Investor........................................... 24
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4.2 Investment.................................................... 24
4.3 No Public Market.............................................. 25
4.4 Organization; Authority; Validity; No Conflict................ 25
4.5 Financing..................................................... 26
4.6 No Brokers.................................................... 27
4.7 No Other Representations...................................... 27
ARTICLE V
COVENANTS OF THE COMPANY AND THE FREMONT PARTNERS
5.1 Reasonable Efforts............................................ 27
5.2 No Solicitation............................................... 27
5.3 Further Assurances............................................ 28
5.4 Notice of Certain Events...................................... 28
5.5 Designated Employees.......................................... 28
5.6 1995 Class B Limited Partnership Interest Options............. 29
5.7 Partnership Agreement......................................... 29
5.8 Board of Control.............................................. 29
5.9 Conversion of General Partnership Interests................... 29
ARTICLE VI
COVENANTS OF THE COMPANY
6.1 Notice of Certain Events...................................... 29
6.2 Conduct of Business Prior to the Closing...................... 30
6.3 Access to Properties and Records.............................. 31
ARTICLE VII
COVENANTS OF THE PURCHASER
7.1 Consent Solicitation.......................................... 32
7.2 Reasonable Efforts............................................ 32
7.3 Further Assurances............................................ 32
7.4 Amendment to Omnibus Agreement................................ 33
7.5 Amendment to Partnership Agreement............................ 33
ARTICLE VIII
ENVIRONMENTAL MATTERS
8.1 Environmental Assessment and Indemnification.................. 33
ARTICLE IX
TAX MATTERS
9.1 Cooperation................................................... 35
9.2 Closing Tax Return............................................ 36
9.3 Pre-Closing Date Tax Audits................................... 36
9.4 Purchase Price Allocation..................................... 37
9.5 Treatment of Purchaser Interest............................... 38
9.6 Transfer Taxes................................................ 38
ARTICLE X
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CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
10.1 Conditions Precedent to the Obligations of the Purchasers... 38
10.2 Conditions Precedent to the Obligations of the Fremont
Partners.................................................... 41
10.3 Conditions Precedent to the Obligations of the Company...... 42
ARTICLE XI
TERMINATION OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
11.1 Termination of Representations and Warranties............... 43
11.2 Fremont Partners' Indemnification........................... 43
11.3 Purchasers' Indemnification................................. 44
11.4 Limitation.................................................. 44
11.5 Indemnity Procedure......................................... 44
ARTICLE XII
TERMINATION
12.1 Grounds for Termination..................................... 46
12.2 Effect of Termination....................................... 47
ARTICLE XIII
MISCELLANEOUS
13.1 Costs and Expenses.......................................... 47
13.2 Notices..................................................... 47
13.3 Counterparts................................................ 49
13.4 Entire Agreement............................................ 49
13.5 Captions.................................................... 49
13.6 Governing Law............................................... 50
13.7 No Third Party Rights....................................... 50
13.8 Amendment and Waiver........................................ 50
13.9 Construction and Representation by Counsel.................. 50
13.10 Further Assurances.......................................... 50
13.11 Severability................................................ 50
13.12 Binding Effect; No Assignment............................... 51
13.13 Company's Knowledge......................................... 51
13.14 Fremont's Knowledge......................................... 51
13.15 Specific Performance........................................ 51
13.16 Transactions Provided Hereby................................ 51
13.17 Joint and Several Liability................................. 51
13.18 Limitation of Liability..................................... 52
13.19 Fremont Cap................................................. 52
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INTEREST PURCHASE AGREEMENT
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This INTEREST PURCHASE AGREEMENT (the "Agreement"), made and entered
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into this 18th day of October, 1996, by and among Mobil Long Haul Inc., a
Delaware corporation and wholly-owned subsidiary of Mobil Corporation ("Mobil
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Co"), Petro Holdings GP Corp., a Delaware corporation and Petro Holdings LP
Corp., a Delaware corporation (collectively, "Chartwell Co" and together with
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Mobil Co, the "Purchasers"), Petro Stopping Centers, L.P., a Delaware limited
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partnership (the "Company"), Roadside, Inc., a Delaware corporation
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("Roadside"), and Sequoia Ventures Inc., a Delaware corporation ("SVI" and
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together with Roadside, the "Fremont Partners").
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WHEREAS, the Fremont Partners own a Partnership Interest (as defined in the
Partnership Agreement (defined hereinafter)) in its capacity as a general
partner in the Company (the "General Partnership Interest") and a Partnership
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Interest in its capacity as a limited partner in the Company (the "Limited
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Partnership Interest" and together with the General Partnership Interest, the
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"Fremont Interests"), which Partnership Interests include a one percent (1%)
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general partnership percentage interest and a forty-four point seventeen percent
(44.17%) limited partnership percentage interest in the profits, losses and
distributions of the Company;
WHEREAS, the Fremont Partners desire to sell to the Purchasers, and the
Purchasers desire to purchase from the Fremont Partners, in each case in the
manner and subject to the terms and conditions set forth in this Agreement, the
Fremont Interests;
WHEREAS, concurrently with the execution of this Agreement, each of
Chartwell Co and Mobil Co is depositing into escrow cash in an amount of
$500,000.00, which escrow shall be governed by the terms of the escrow agreement
being executed concurrently herewith, in each case, in order to secure the
obligations of the Purchasers hereunder; and
WHEREAS, the parties hereof are entering into this Agreement to provide for
such purchase and sale, and to establish certain rights and obligations in
connection therewith.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, representations and warranties herein contained, and
intending to be legally bound hereby, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE FREMONT INTERESTS
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1.1 Definitions:
Defined in
Term Section
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"Acquisition Proposal" 5.2
"Agreement" Preamble
"Amendments" 7.1
"Article VIII Remediation" 8.1(b)
"Assessments" 8.1(a)
"Balance Sheet Date" 3.4
"Balance Sheet" 3.4
"Benefit Plan" 3.11(a)
"Business Day" 1.4(a)
"Cap" 1.5(b)
"Chartwell Co" Preamble
"Claims" 9.6(a)
"Closing" 1.4(a)
"Closing Date" 1.4(a)
"Closing K-1" 8.2
"Commitment Letter" 4.5
"Company" Preamble
"Company Estimate" 1.5(b)
"Company Intangible Property" 3.20(a)
"Company Intangible Property Licenses 3.19(a)
"Consent Solicitation" 7.1
"Consent Solicitation Expenses" 7.1
"Confidentiality Agreements" 6.3(b)
"Coopers Determination" 1.5(a)
"Damages" 11.2
"Date of Notice of Claim" 11.5
"Debt Financing" 4.5
"Environmental Laws" 3.15(a)
"Equity Commitments" 4.5
"ERISA" 3.11(a)
"Exchange Act" 3.3
"Excess Contamination" 8.1(b)
"Fremont Interests" Recitals
"Fremont Material Adverse Effect" 2.1(a)
"Fremont Partners" Preamble
"General Partnership Interest" Recitals
"Governmental Authority" 2.1(a)
"Indemnitee" 11.5
"Indemnitor" 11.5
"Knowledge" 13.14 or 13.15
"Limited Partnership Interest" Recitals
"Material Contracts" 3.9
"Mobil Co" Preamble
"Notice of Claim" 11.5
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"Offer" 7.1
"Omnibus Agreement" 7.4
"Option Agreement" 5.6
"Partnership Agreement" 1.4(c)
"Permits" 3.1(a)
"Permitted Liens" 3.5(d)
"Person" 3.9(c)
"Petro" 5.9
"Petro Partners" 8.3
"Pre-Closing Period" 9.6(a)
"Pre-Closing Date Period" 9.2(a)
"Purchase Price" 1.3
"Purchasers" Preamble
"Purchaser Interest" 1.2
"Purchaser Material Adverse Effect" 4.4(c)
"Roadside" Preamble
"Schedule 3.9 Material Contracts" 3.9
"Schedule 3.11 Plan" 3.11(a)
"Schedule 3.12 Agreements" 3.12
"Schedule 3.13 Insurance Policies" 3.13
"Xxxxxxxxx" 5.5
"SEC Reports" 3.3
"Subsidiaries" 3.1(a)
"SVI" Preamble
"Tax Matters Partner" 9.3
"Tax Returns" 3.10(a)
"Taxes" 3.10(a)
"Code" means the Internal Revenue Code of 1986, as amended.
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"Company Material Adverse Effect" means a material adverse effect on the
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ability of the Company to consummate the transactions contemplated hereby or on
the business, results of operations or financial condition of the Company and
its Subsidiaries taken as a whole.
"Company Transaction Costs" means the costs and expenses to be paid by the
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Company pursuant to Sections 5.5, 5.6, 8.1(a),(b) and (c) and fees to Xxxxxxx
Sachs in Section 3.16.
"Consent Solicitation Expenses" shall mean the actual out-of-pocket fees
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and expenses payable by the Purchasers to (i) Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P., (ii) a solicitation agent, (iii) the indenture trustee and its counsel,
(iv) a printer selected by the Purchasers, if any, in each case related solely
to the Consent Solicitation in an aggregate amount not in excess of $200,000.
"Contracts" means all contracts, leases, agreements, commitments and other
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legally binding arrangements, whether oral or written, that relate to the
business or assets of the Company.
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"Employee Plan" means any employee benefit plan, as defined in section 3(3)
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of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
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(including, without limitation, defined benefit pension plans, defined
contribution pension plans, and medical and other welfare plans), and any
retirement, deferred compensation, medical, dental, cafeteria, stock purchase,
stock option, savings, severance, bonus, incentive, vacation, or other benefit
plan, arrangement, program, or arrangement, whether or not subject to ERISA,
whether written or oral, whether maintained for current employees, former
employees, or retirees, and whether currently in effect or terminated or frozen.
"Escrow Agent" means Citibank, N.A.
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"Escrow Agreement" means the Escrow Agreement, dated of even date herewith,
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by and among the Purchasers, the Company and the Escrow Agent.
"GAAP" means generally accepted accounting principles in effect in the
----
United States of America at the time of determination, and which are
consistently applied.
"Hazardous Materials" means hazardous or toxic wastes, or chemicals,
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substances, constituents, pollutants, contaminants or regulated materials,
whether solids, liquids, or gases, regulated under the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. (S)(S) 9601-
9675; the Resource Conservation and Recovery Act, 42 U.S.C. (S)(S) 6901 -6992k;
the Toxic Substances Control Act, 15 U.S.C. (S)(S) 2601 -2671; the Safe Drinking
Water Act, 42 U.S.C. (S)(S) 300f - 300j-11; the Clean Air Act, as amended, 42
U.S.C. (S)(S) 7401 - 7642; the Clean Water Act, 33 U.S.C. (S)(S) 1251 - 1387;
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. (S)(S)
11001 -11050; or any analogous state laws.
"Liability" or "Liabilities" means all obligations, indebtedness,
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commitments, and other items constituting "liabilities" under GAAP, whether
direct or indirect, absolute, accrued, contingent, or otherwise, known or
unknown, or due or to become due, asserted or unasserted, matured or unmatured,
including without limitation trade accounts payable, accrued liabilities for
payroll and related expenses, obligations with respect to "self-insurance,"
obligations for borrowed money or for the deferred purchase price of property or
services, obligations secured by encumbrance on or with respect to any property
or assets owned by a Person or acquired by a Person subject thereto (whether or
not the obligation secured thereby shall have been assumed), obligations under
direct or indirect guarantees, other obligations (contingent or otherwise) to
purchase, to provide funds for payment or otherwise acquire property or to
assure a creditor against loss, obligations to
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reimburse the issuer with respect to letters of credit, liabilities in respect
of unfunded accrued vested benefits under any Employee Plan, capitalized lease
obligations and any other known or unknown obligations or liabilities.
"Notes" means the 12-1/2% Senior Notes due 2002.
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"Pension Plan" means an employee pension benefit plan as defined in
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Section 3(2) of ERISA.
"Warrants" means those certain Exchange Debt Warrants issued pursuant to
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that certain Warrant Agreement, dated as of May 24, 1994, among Petro PSC
Properties, L.P., Petro Financial Corporation and First Trust National
Association.
1.2 Purchase and Sale. Upon the terms and subject to the conditions
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of this Agreement, at the Closing (as defined hereinafter), the Fremont Partners
shall sell, convey, transfer and deliver to the Purchasers, and Chartwell Co
shall purchase, acquire and accept from Roadside, the General Partnership
Interest and Chartwell Co and Mobil Co shall purchase, acquire and accept from
SVI, 1.00% and 44.17% of the aggregate Limited Partnership Interest, such
interests being sold by the Fremont Partners to the Purchasers pursuant to this
Agreement shall be referred to herein as the "Purchaser Interest". The
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aggregate consideration for the General Partnership Interest and the Limited
Partnership Interest shall be paid as provided in Section 1.3 hereof.
1.3 Consideration.
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(a) The aggregate consideration for the Fremont Interests shall
consist of Twenty-eight Million Five Hundred Thousand U.S. Dollars ($28,500,000)
(as adjusted pursuant to Section 1.3(b), the "Purchase Price"), to be paid as
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provided in Section 1.4 hereof.
(b) The Purchase Price shall be reduced at the Closing by an amount
equal to 45.17% of:
(i) every dollar by which the sum of (A) the aggregate cost
(including any premiums) to the Company of cancelling or retiring all
outstanding principal and interest relating to the indebtedness for
borrowed money of the Company other than the Notes and Warrants, plus
accrued but unpaid interest on the Notes as of the Closing Date, (B)
$105,538,000 and (C) the present value of the sum of (1) 3.57% multiplied
by $105,538,000 plus (2) interest of 1.5% per annum accruing from the
Closing Date to June 1, 1999 multiplied by $100,000,000, in each case,
discounted at 8.25% per annum computed for the period commencing at
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the Closing Date and ending on June 1, 1999, and (C) the Consent
Solicitation Expenses, including any sums paid to Noteholders to obtain
their consent pursuant to the Consent Solicitation, and all fees, costs and
expenses of the Company relating thereto (other than legal and accounting
fees within the limit set forth in the last sentence of Section 13.1
hereof), exceeds $173.0 million;
(ii) every dollar by which the trade accounts payable and
accrued expenses of the Company as of the Closing Date exceeds $42,429,000
(as estimated by the Company, as of the Closing Date and confirmed by
Coopers & Xxxxxxx within 45 days following the Closing Date) pursuant to
agreed upon procedures in accordance with Section 1.5 hereof; and
(iii) the aggregate amount of the Company Transaction Costs.
1.4 Closing.
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(a) Subject to the conditions set forth in Article X, unless this
Agreement shall have been terminated pursuant to the provisions of Section 12.1
hereof, the closing (the "Closing") of the purchase and sale of the Fremont
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Interests shall take place at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx,
L.L.P., 0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. on November 18, 1996
or, in the event that the conditions set forth in Article X will not have been
satisfied or waived by such date, on the fifth Business Day (as defined
hereinafter) following the date that each of the conditions set forth in Article
X will have been satisfied or waived, or at such other place and time as the
parties may mutually agree. "Business Day" shall mean a day other than a
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Saturday or a Sunday or other day on which commercial banks in New York City are
authorized or required by law to close. The date and time of such Closing are
herein referred to as the "Closing Date".
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(b) At the Closing, the Purchasers shall deliver the Purchase Price to
the Fremont Partners by wire transfer of immediately available funds to an
account designated in writing by the Fremont Partners.
(c) At the Closing, upon delivery of the Purchase Price, (i) the
Purchasers shall execute a counterpart to an amendment to the Second Amended and
Restated Limited Partnership Agreement of Petro Stopping Centers, L.P., dated as
of December 31, 1994 (the "Partnership Agreement"), admitting Chartwell Co to
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the Company as a substituted general partner and Chartwell Co and Mobil Co
substituted limited partners and terminating, to the fullest extent permitted by
law, all
6
obligations of each of Roadside and SVI arising from each entity's status as
general partner and limited partner, respectively, in the Company, and (ii) the
Company shall take all necessary action required to admit the Petro Holdings GP
Corp to the Company as a substituted general partner and the other Purchasers as
substituted limited partners; provided, however, that, except as set forth
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elsewhere in this Agreement, the Purchasers shall not be required to obtain
releases from third parties.
(d) At the Closing, Purchasers shall cause the Company, or pay at the
direction of the Company to a third Person or Persons, sufficient funds, by wire
transfer of immediately available funds, to enable the Company to effect the
cancellation or retirement of all indebtedness contemplated by Section 1.3(b)(i)
other than the Notes and the Warrants.
1.5 Purchase Price True-Up.
----------------------
(a) Within 45 days after the Closing, the Company shall cause Coopers
& Xxxxxxx to complete their procedures with respect to confirmation of the
balances of trade accounts payable and accrued expenses at the Closing Date (the
"Coopers Determination").
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(b) If (i) the Company's estimate of the aggregate balance of trade
accounts payable and accrued expenses at the Closing (the "Company Estimate") is
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less than $42,429,000 (the "Cap") and (ii) the Coopers Determination exceeds the
Cap, then the Purchase Price shall be reduced post-Closing by an amount equal to
45.17% of every dollar by which the Coopers Determination exceeds the Cap.
Within five business days following delivery of the Coopers Determination, the
Fremont Partners shall remit such amount to the Purchasers.
(c) If (i) the Company Estimate exceeds the Cap, and (ii) the Coopers
Determination exceeds the Company Estimate, then the Purchase Price shall be
reduced post-Closing by an amount equal to 45.17% of every dollar by which the
Coopers Determination exceeds the Company Estimate. Within five business days
after the delivery of the Coopers Determination, the Fremont Partners shall
remit such amount to the Purchasers.
(d) If (i) the Company Estimate exceeds the Cap and (ii) the Coopers
Determination is less than the Company Estimate but greater than the Cap, then
the Purchase Price shall be increased post-Closing by an amount equal to 45.17%
of every dollar by which the Company Estimate exceeds the Coopers Determination.
Within five business days of the delivery of the Coopers Determination, the
Purchasers shall remit such amount to the Fremont Partners.
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(e) If (i) the Company Estimate exceeds the Cap and (ii) the Coopers
Determination is less than or equal to the Cap, then the Purchase Price shall be
increased post-Closing by an amount equal to 45.17% of every dollar by which the
Company Estimate exceeds the Cap. Within five business days of the delivery of
the Coopers Determination, the Purchaser shall remit such amount to the Fremont
Partners.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE FREMONT PARTNERS
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Each of Roadside and SVI hereby represents and warrants to the Purchasers
as follows:
2.1 Organization and Authority; Validity; No Conflict.
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(a) Each of Roadside and SVI is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of Roadside and SVI has all requisite power and authority to possess all
franchises, licenses, permits, consents, waivers, authorizations and approvals
from any nation or government, any state or other political subdivision thereof
and any entity (including without limitation a court, agency, department or
other instrumentality) exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, government ("Governmental
------------
Authority") necessary to enable it to use its name and to own, lease or
---------
otherwise hold its properties and assets and to carry on its business as
presently conducted and proposed to be conducted, except where the failure to
have such franchises, licenses, permits, consents, waivers, authorizations and
approvals would not, individually or in the aggregate, have a material adverse
effect on the ability of either Roadside or SVI to consummate the transactions
contemplated hereby or on the business, results of operations or financial
condition of either of Roadside or SVI, including, in the case of Roadside,
indirectly as a result of its being a general partner of the Company (a "Fremont
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Material Adverse Effect"). Each of Roadside and SVI is duly qualified to do
-----------------------
business as a foreign corporation in each jurisdiction in which the nature of
its business or the ownership, leasing or holding of its properties or assets
requires qualification, except where the failure to be so qualified would not
have a Fremont Material Adverse Effect.
(b) Each of Roadside and SVI has the requisite power and authority
to enter into this Agreement and to carry out its obligations hereunder.
Neither the execution or delivery of this Agreement nor the consummation of the
transactions provided for hereby requires any further corporate action on the
part of either Roadside or SVI. This Agreement has been duly executed by each
of Roadside and SVI and, assuming due
8
execution by the Purchasers, and the Company, is a legal, valid and binding
obligation of each of Roadside and SVI, enforceable against each of Roadside and
SVI in accordance with its terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in an action at law or a suit in equity).
(c) Except as set forth on Schedule 2.1(c), neither the execution and
delivery of this Agreement by either Roadside or SVI, nor the compliance by
either Roadside or SVI with or fulfillment of the terms and provisions hereof,
will:
(i) Conflict with or result in a breach of any provision of the
certificate of incorporation and by-laws or similar documents of either
Roadside or SVI;
(ii) Violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) or require any consent
under, or give any right to terminate, modify or accelerate or to penalize
either Roadside or SVI, or result in the imposition of any Lien (as defined
hereinafter) upon or the creation of any security interest in any of the
assets of either Roadside or SVI under, any note, bond, mortgage,
indenture, deed of trust, permit, lease, contract, agreement or other
instrument, commitment or obligation to which either Roadside or SVI is a
party or by which its properties may be bound, other than (A) consents the
failure of which to obtain would not, individually or in the aggregate,
have a Fremont Material Adverse Effect and (B) violations, conflicts,
breaches, defaults, terminations, modifications, accelerations, penalties,
liens and security interests that would not, individually or in the
aggregate, have a Fremont Material Adverse Effect;
(iii) Violate any order, writ, injunction, decree, judgment,
ruling, law, rule or regulation of any Governmental Authority, applicable
to either Roadside or SVI or any of its properties, other than violations
that would not, individually or in the aggregate, have a Fremont Material
Adverse Effect; or
(iv) Require, on the part of either Roadside or SVI any order,
consent, approval or authorization of, or notice to, or declaration, filing
or registration with, any Governmental Authority, other
9
than those the failure of which to obtain would not, individually or in the
aggregate, have a Fremont Material Adverse Effect.
2.2 Capitalization. Except as set forth in Schedule 2.2 hereto, (i)
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there are no outstanding options, warrants, calls, rights, commitments or
agreements of any kind to which either Roadside or SVI is party or by which it
is bound relating to the sale, issuance or voting of, or the granting of rights
to acquire, the Fremont Interests or any securities convertible or exchangeable
into or evidencing the right to purchase the Fremont Interests or obligating the
Company to grant, extend or enter into any such option, warrant, call, right,
commitment or agreement and (ii) the Fremont Interests outstanding on the date
hereof are not subject to any preemptive, first refusal or other subscription
rights.
2.3 Good Title. Except as set forth in the Partnership Agreement, each
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of Roadside and SVI owns beneficially and of record the General Partnership
Interest and the Limited Partnership Interest, respectively, free and clear of
all claims, charges, liens, security interests, pledges, restrictions or
encumbrances of any nature whatsoever (collectively, "Liens"). The transfer and
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delivery of the Fremont Interests to the Purchaser as contemplated by this
Agreement will, upon consummation of the Closing, transfer good and marketable
title thereto to the Purchaser, free and clear of all Liens.
2.4 No Brokers. Neither Roadside nor SVI has employed or is subject to the
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valid claim of, or incurred any liability that would be payable by either of
them, for any brokerage, finder's or other fees or commissions of any broker,
finder or other financial intermediary in connection with the transactions
contemplated by this Agreement.
2.5 No Other Representations. The Fremont Partners acknowledge that, except
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as set forth in Article IV, the Purchasers have made no representation or
warranty whatsoever to the Fremont Partners.
2.6 Financial Statements. Each of (i) the audited consolidated financial
--------------------
statements of the Company (including any related notes and schedules) included
(or incorporated by reference) in its Annual Report on Form 10-K for the fiscal
year ended December 29, 1995 (ii) the unaudited consolidated interim financial
statements for the Company (including any related notes and schedules) included
(or incorporated by reference) in its Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, and (iii) the unaudited consolidated interim
financial statements for the Company (including any related notes and schedules)
included (or incorporated by reference) in its Quarterly Report on Form 10-Q for
the quarter ended September 30,
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1996, if filed by the Company prior to the Closing hereunder, fairly present or
will fairly present, in conformity with GAAP(except as may be indicated in the
notes thereto), the consolidated financial position of the Company and its
Subsidiaries as of the dates thereof and the consolidated results of their
operations and changes in their financial position for the periods then ended
(subject to normal year-end adjustments and the absence of footnotes in the case
of any unaudited interim financial statements).
2.7 Material Adverse Change. To the Knowledge of Fremont Partners, since
-----------------------
June 30, 1996, except as set forth on Schedule 3.5 or as otherwise disclosed in
this Agreement or schedules hereto, there has occurred no Company Material
Adverse Effect.
2.8 Omnibus Agreement. In its capacity of general partner of the Company,
-----------------
Roadside has consented to the consummation of the transactions contemplated by
the Omnibus Agreement in accordance with its terms and has not modified or
withdrawn such consent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to the Purchasers as follows:
3.1 Organization and Authority; Validity; No Conflict.
-------------------------------------------------
(a) The Company is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has all requisite power and authority to possess all franchises,
licenses, permits, consents, waivers, authorizations and approvals
(collectively, "Permits") from Governmental Authorities necessary to enable it
-------
to use its name and to own, lease or otherwise hold its properties and assets
and to carry on its business as presently conducted and to consummate the
transactions provided for hereby. The Company is duly qualified to do business
as a foreign entity in each jurisdiction in which the nature of its business or
the ownership, leasing or holding of its properties or assets requires
qualification. Each of the Subsidiaries of the Company is a corporation, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, each with full corporate power and authority
to own, lease and operate the properties held or used by it and to carry on its
business as currently conducted. Attached hereto as Schedule 3.1(a) is a true,
correct and complete chart showing the
11
corporations and partnerships in which the Company owns, directly or indirectly,
any equity interest. For purposes of this Agreement, "Subsidiaries" means each
corporation and partnership in which the Company owns, directly or indirectly,
50 percent or more of the voting stock or other equity interest and each other
corporation and partnership that the Company controls or has the ability to
control.
(b) The Company has the requisite power and authority to enter into
this Agreement and to carry out its obligations hereunder. Neither the
execution or delivery of this Agreement nor the consummation of the transactions
provided for hereby requires any further partnership action on the part of the
Company. This Agreement has been duly executed by the Company and, assuming due
execution by the Purchasers, Roadside and SVI, is a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in an
action at law or a suit in equity).
(c) Except as set forth on Schedule 3.1(c), neither the execution and
delivery of this Agreement by the Company, nor the compliance by the Company
with or fulfillment of the terms and provisions hereof, nor the consummation of
the transactions provided for hereby, will:
(i) Conflict with or result in a breach of any provision of the
Partnership Agreement;
(ii) Violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) or require any consent
under, or give any right to terminate, modify or accelerate or to penalize
the Company or its Subsidiaries, or result in the imposition of any Lien
upon or the creation of any security interest in any of the assets of the
Company or its Subsidiaries under, any note, bond, mortgage, indenture,
deed of trust, Permit, lease, contract, agreement or other instrument,
commitment or obligation to which the Company or its Subsidiaries is a
party or by which its properties may be bound;
(iii) Violate any order, writ, injunction, decree, judgment,
ruling, law, rule or regulation of any Governmental Authority, applicable
to the Company or any of its Subsidiaries or any of their properties; or
12
(iv) Require, on the part of the Company or any of its
Subsidiaries any order, consent, approval or authorization of, or notice
to, or declaration, filing or registration with, any Governmental
Authority.
3.2 Equity of the Company.
---------------------
(a) Set forth in Schedule 3.2(a) is a true and complete list of the
general partners and limited partners and their respective percentage interests
in the Company as of the date hereof. Except (i) as set forth in the Partnership
Agreement, (ii) the Warrants as listed on Schedule 3.2(a) and (iii) options
listed on Schedule 3.2(a) issued pursuant to the Petro Stopping Centers, L.P.
1995 Class B Limited Partnership Interests Option Plan effective July 15, 1995,
there are no outstanding warrants, options, rights, securities, agreements,
subscriptions, antidilution rights, first refusal rights or other commitments
pursuant to which the Company is or may become obligated to issue, deliver or
sell any additional interests in the Company or any of its Subsidiaries or to
issue, grant, extend or enter into any such warrant, option, right, security,
agreement, subscription or other commitment.
(b) The Fremont Interests are duly authorized, validly issued, fully
paid and nonassessable.
3.3 SEC Reports; Financial Statements. The Company has delivered to the
---------------------------------
Purchasers true and complete copies of each registration statement and report
and any other document (including exhibits and any amendments thereto) filed by
the Company with the Securities and Exchange Commission since May 17, 1994
(collectively, the "SEC Reports"), which are all the documents (other than
-----------
preliminary materials) that the Company has been required to file with the SEC
since such date. As of the respective dates the SEC Reports were filed or, if
any such SEC Reports were amended, as of the date such amendment was filed, each
of the SEC Reports (i) complied in all material respects with all applicable
requirements of the Securities Act of 1933, as amended and Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
------------
promulgated thereunder; (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Each of (i) the audited consolidated
financial statements of the Company (including any related notes and schedules)
included (or incorporated by reference) in its Annual Report on Form 10-K for
the fiscal year ended December 29, 1995; (ii) the unaudited consolidated interim
financial statements for the Company (including any related notes and schedules)
included (or incorporated by reference) in its Quarterly Report on Form 10-Q for
the
13
quarter ended June 30, 1996; and (iii) the unaudited consolidated interim
financial statements for the Company (including any related notes and schedules)
included (or incorporated by reference) in its Quarterly Report on Form 10-Q for
the quarter ended September 30, 1996, if filed by the Company prior to the
Closing hereunder, fairly present or will fairly present, in conformity with
GAAP (except as may be indicated in the notes thereto), the consolidated
financial position of the Company and its subsidiaries as of the dates thereof
and the consolidated results of their operations and changes in their financial
position for the periods then ended (subject to normal year-end adjustments in
the case of any unaudited interim financial statements).
3.4 Undisclosed Liabilities.
-----------------------
(a) Neither the Company nor its Subsidiaries has any Liabilities,
whether accrued, absolute or contingent, and whether due or to become due, which
are of a type required to be reflected on, or described in a footnote to, an
audited consolidated balance sheet prepared under GAAP, practices and methods
applicable to it, except (i) to the extent specifically disclosed or provided
for in the consolidated balance sheet of the Company for the period ended June
30, 1996 (the "Balance Sheet"), (ii) incurred since the date of the Balance
-------------
Sheet (the "Balance Sheet Date") in the ordinary and usual course of business
------------------
consistent with past practices or, (iii) as set forth on Schedule 3.4.
(b) To the Knowledge of the Company, neither the Company nor its
Subsidiaries has any Liabilities in excess of $100,000, individually, or
$250,000, in the aggregate, whether accrued, absolute or contingent, and whether
due or to become due, whether or not of a type required to be reflected on, or
described in a footnote to, an audited consolidated balance sheet prepared under
the GAAP, practices and methods applicable to it, except (i) to the extent
specifically disclosed or provided for in the Balance Sheet, (ii) incurred since
the Balance Sheet Date in the ordinary and usual course of business, (iii) as
set forth on Schedule 3.4 or (iv) as otherwise disclosed in this Agreement or
the Schedules hereto.
3.5 Absence of Certain Changes and Events. Except as set forth on Schedule
-------------------------------------
3.5, from the Balance Sheet Date each of the Company and its Subsidiaries has
conducted its business only in the ordinary and usual course and has not
undergone or suffered or become aware of any event, occurrence, development, or
state of circumstances or fact which has had or would reasonably be expected to
have a Company Material Adverse Effect. Without limiting the generality of the
first sentence of this Section 3.5 (and except as set forth on Schedule 3.5 or
as otherwise disclosed in or permitted or required by this Agreement
14
or Schedules hereto), since the Balance Sheet Date neither the Company nor any
of its Subsidiaries has:
(a) Authorized for issuance, issued, delivered or sold any debt or
equity securities, or altered the terms of any outstanding securities issued by
it, or increased its indebtedness for borrowed money other than in the ordinary
and usual course of business;
(b) Made or set aside for making any distribution (whether in cash,
interests or property or otherwise) in respect of any partnership or other
interest, or redeemed, purchased or otherwise acquired any such partnership or
other interests, any securities convertible into or exchangeable for such
partnership or other interests or any options, warrants or other rights to
purchase or subscribe to any of the foregoing;
(c) Paid, discharged or satisfied any Liability or obligation (whether
accrued, absolute, contingent or otherwise) other than the payment, discharge or
satisfaction, in the ordinary and usual course of business, of Liabilities or
obligations shown or reflected on the financial statements included in the SEC
Reports or incurred in the ordinary and usual course of business;
(d) Except in the ordinary and usual course of business, permitted or
allowed any assets (whether real, personal or mixed, tangible or intangible) to
be subjected to any Lien except (i) Liens disclosed on the Schedules hereto and
(ii) (A) mechanics', carriers', workmen's, repairmen's, and other like liens
arising or incurred in the ordinary course of business, (B) liens for Taxes,
assessments and other governmental charges that are not yet due and payable or
that may thereafter be paid without penalty, or that are being contested in good
faith by appropriate proceedings (which liens are set forth in Schedule 3.5) and
(C) imperfections of title and other encumbrances that, individually or in the
aggregate, are not substantial in character or amount and do not, except in
immaterial respects, detract from, or interfere with the Company's business as
presently conducted (the Liens described in clauses (i) and (ii) being herein
referred to as "Permitted Liens");
---------------
(e) Written off as uncollectible any notes or accounts receivable
other than in immaterial amounts or in the ordinary and usual course of
business;
(f) Cancelled or waived any claims or rights of value or sold,
transferred, distributed or otherwise disposed of any assets except in the
ordinary and usual course of business;
15
(g) Granted any increase in the compensation of any member of the
Board of Control, management committee member, officer or employee, whether now
or hereafter payable (other than increases in compensation in the ordinary and
usual course of business and consistent in timing and amount with past practice)
or granted any severance or termination pay (other than for severance pay in
amounts consistent with its established severance pay practices), or entered
into or varied the terms of any employment agreement (other than employment
agreements terminable at will without any liability other than severance
consistent with its established severance policies) with any such person or
adopted, amended in any material respect or terminated (except in the ordinary
and usual course of business and consistent with past practice) any Schedule
3.12 Plan (as defined in Section 3.12 hereof), non-ERISA arrangement, bonus,
profit sharing or other employee benefit plan, agreement or arrangement of
general applicability for the benefit of its members of the Board of Control,
management committee members, officers or employees or for the benefit of
members of the Board of Control, management committee members, officers or
employees of any of its affiliates;
(h) Other than as provided in the Company's 1996 capital expenditure
plan previously provided to the Purchaser, made any capital expenditure or
commitment for additions to property or equipment, or leased or agreed to lease
any assets in excess of $250,000 individually or in the aggregate, or made any
advance or capital contributions to, or investment in, any Person (other than to
wholly-owned subsidiaries);
(i) Made any material change in any method of accounting or keeping
its books of account or accounting practices, except as required as a result of
changes in GAAP;
(j) Incurred any material obligation or Liability, except Liabilities
incurred in the ordinary and usual course of business; or
(k) Prior to the date hereof, experienced any damage, destruction, or
other casualty loss (whether or not covered by insurance) detrimental to the
business or assets of the Company or any facility.
3.6 Litigation; Injunctions. As of the date hereof, except as set forth on
-----------------------
Schedule 3.6, (i) there is no lawsuit, claim, arbitration or other proceeding or
investigation or review pending or, to the Knowledge of the Company, threatened
by or against the Company, its Subsidiaries, or their properties or assets; and
(ii) there is no outstanding judgment, order or decree of any Governmental
Authority or arbitrator applicable to
16
the Company, its Subsidiaries or any of their properties, assets or business.
3.7 Government Authorizations and Permits; Compliance with Applicable Laws.
----------------------------------------------------------------------
The Company and each of its Subsidiaries hold all authorizations and permits
necessary or required for the conduct of its business, which authorizations and
permits are set forth in Schedule 3.7. All such authorizations and permits are
valid and in full force and effect, and no proceeding is pending, or, to the
Knowledge of the Company threatened, to modify, suspend, revoke or otherwise
limit any of such authorizations and permits and no administrative or
governmental actions have been taken or, to the Knowledge of the Company are
threatened, in connection with the expiration or renewal of any of such
authorizations and permits. The Company and its Subsidiaries are conducting its
business, in compliance with all applicable laws.
3.8 Real Property. Schedule 3.8 is a complete list of all real property,
-------------
leaseholds, options to purchase and rights of first refusal and other interests
in real property owned, leased or used by the Company or its Subsidiaries for or
in the conduct its business. Each of the Company and its Subsidiaries has good
and marketable title in fee simple to all real property and interests in real
property and leasehold interests identified on Schedule 3.8 to be owned by it,
free and clear of all Liens other than the following: (i) Liens disclosed on
Schedule 3.8 and (ii) (A) Permitted Liens, (B) easements, covenants, rights-of-
way and other encumbrances or restrictions of record, (C) zoning, building and
other similar restrictions, and (D) unrecorded easements, covenants, rights-of-
way or other restrictions, none of which unrecorded items materially impair the
current use of the property to which they relate. The Company is the lessee of
all the leasehold estates purported to be granted by the leases shown on
Schedule 3.8 which is a complete and correct list of all leases in which Company
or any of its Subsidiaries has an interest and is in possession of the premises
purported to be leased thereunder. There are no events or proceedings affecting
any such property pending, or to the Knowledge of the Company, threatened, which
would reasonably be expected to detract from the value of such property or
impair its existing use except as otherwise disclosed in Section 3.15 hereof.
3.9 Contracts. Schedule 3.9 and Schedule 3.20 set forth a list of all of
---------
the agreements, contracts and arrangements to which the Company or any of its
Subsidiaries is a party or by which its assets or properties are bound or
affected as of the date of this Agreement and which are material to the conduct
of the Company's or its Subsidiaries' business including, without limitation,
agreements relating to capital expenditures or the acquisition of tangible or
intangible property (other than in connection with such investments) under which
the Company or any of its Subsidiaries is obligated to pay in excess of
$100,000, or
17
which have a term greater than one year (such agreements, contracts and
arrangements, the "Material Contracts"). As of the date of this Agreement:
------------------
(a) each Material Contract is valid and in full force and effect and
is enforceable in accordance with its terms against the Company or any of its
Subsidiaries, as applicable, and against any Person party to such contract;
(b) except as disclosed on Schedule 3.9, no default or event of
default has occurred and, to the Knowledge of the Company, there exists no
condition or event which, after notice or lapse of time or both, would
constitute a default by the Company or any of its Subsidiaries, as applicable,
under such Material Contract, or would give to any other Person (as defined
below) any rights of termination, cancellation or acceleration of any
performance required thereunder or result in the creation of any Lien; and
(c) to the Knowledge of the Company, none of the other parties to the
Material Contracts is in default thereunder, nor is the Company or any of its
Subsidiaries aware of any event which, with the passage of time, the giving of
notice or both, would constitute a default under such Material Contract by such
other party. For purposes of this Agreement, "Person" shall mean any individual,
------
partnership, corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture or other entity (including,
without limitation, any government or political subdivision or any agency,
department or instrumentality thereof).
3.10 Taxes. Except as set forth in Schedule 3.10 hereto:
-----
(a) All Taxes relating to the Company's business or to any of its
wholly owned subsidiaries that are incurred by the Company or by any of its
wholly owned subsidiaries and that are due and payable by the Company or by any
of its wholly owned subsidiaries prior to or as of the Closing Date have been
duly paid, or adequate reserves have been established with respect thereto in
accordance with GAAP.
(b) The Company and each of its wholly owned subsidiaries have timely
filed, or will file or cause to be timely filed, all Tax Returns required by
applicable law to be filed by them prior to or as of the Closing Date. All such
Tax Returns are or will be true, complete, and correct in all material respects.
(c) There is no claim or assessment for Taxes pending or threatened
against the Company or any of its wholly
18
owned subsidiaries, and the Company does not know of any audit or investigation
with respect to any Taxes due from the Company or any of its wholly owned
subsidiaries. There are no agreements in effect to extend the period of
limitations for the assessment or collection of any Taxes for which the Company
or any of its wholly owned subsidiaries may be liable.
(d) At no time during its existence has any of the Company's wholly
owned subsidiaries been a member of an affiliated group of corporations as
defined in section 1504 of the Code.
(e) There are no liens for Taxes upon any of the assets of the Company
or its wholly owned subsidiaries, except for statutory liens for current Taxes
not yet due.
(f) For purposes of this Agreement, the following definitions shall
apply:
"Taxes" shall mean all Federal, state, local and foreign taxes, and other
-----
assessments of a similar nature (whether imposed directly or through
withholding), including fuel and employment related taxes, and any interest,
additions to tax, or penalties applicable thereto, but excluding any liability
relating to any Benefit Plan (as defined below).
"Tax Returns" shall mean all Federal, state, local and foreign Tax returns,
-----------
declarations, statements, reports, schedules, forms and information returns and
any amendments thereto.
3.11 Employment Matters.
------------------
(a) Schedule 3.11(a) sets forth a true and complete list of each plan,
program, arrangement, agreement or commitment which is an employment, consulting
or deferred compensation agreement, or an executive compensation, incentive
bonus or other bonus, employee pension, profit-sharing, savings, retirement,
severance pay, life, health, disability or accident insurance plan, or vacation,
or other employee benefit plan, program, arrangement, agreement or commitment,
including, without limitation, any Employee Plan (each such plan, a "Benefit
-------
Plan"), that is maintained by the Company or any Person for the benefit of
----
persons in their capacities as members of the Board of Control, management
committee members, officers or employees of the Company and its Subsidiaries and
any organization which is a member of a controlled group of organizations within
the meaning of Code section 414(b) or (c) (an "ERISA Affiliate") (each such
---------------
Benefit Plan, a "Schedule 3.11 Plan").
------------------
(b) Except as set forth in Schedule 3.11(b), with respect to each
Schedule 3.11 Plan, (i) the Company and any
19
ERISA Affiliate has complied with, and each such Schedule 3.11 Plan complies
with, currently applicable provisions of all applicable laws (including, without
limitation and to the extent applicable, ERISA and the Code), and (ii) there are
no actions, suits or claims pending (other than routine claims for benefits) or,
to the Knowledge of the Company, threatened with respect to such Schedule 3.11
Plan or against the assets of such Schedule 3.11 Plan.
(c) Except pursuant to the Schedule 3.11 Plans listed in Schedule
3.11(c), no Schedule 3.11 Plan provides benefits, including, without
limitation, death or medical benefits (whether or not insured) with respect to
any current or former employee of the Company and any ERISA Affiliate beyond
their retirement or other termination of service (other than (i) coverage
mandated by applicable law, (ii) retirement or death benefits under any
employee pension plan, (iii) disability benefits under any employee welfare
plan that have been fully provided for by insurance or otherwise, (iv) deferred
compensation benefits accrued as liabilities on the books of the Company or (v)
benefits in the nature of severance pay).
(d) Except as set forth in Schedule 3.11(d), with respect to each
Schedule 3.11 Plan that is funded wholly or partially through an insurance
policy, all premiums required to have been paid to date under the insurance
policy have been paid, all premiums required to be paid under the insurance
policy through the Closing Date will have been paid on or before the Closing
Date and, as of the Closing Date, there will be no liability of the Company and
any ERISA Affiliate under any such insurance policy or ancillary agreement with
respect to such insurance policy in the nature of a retroactive rate adjustment,
loss sharing arrangement or other actual or contingent liability arising wholly
or partially out of events occurring prior to the Closing Date.
(e) No Schedule 3.11 Plan is subject to Title IV of ERISA, section 302
of ERISA or section 412 of the Code.
(f) Neither the Company nor any ERISA Affiliate has maintained or
contributed to any Employee Plan which is "a multiemployer plan" as defined in
section 3(37) of ERISA which covers, is maintained for the benefit of or relates
to any Person in his or her capacity as an employee of the Company or any ERISA
Affiliate.
(g) The Company is not a party to any collective bargaining agreement.
There is no labor strike, dispute, slowdown or stoppage actually pending or, to
the Knowledge of the Company, threatened against or involving the Company or any
of its Subsidiaries.
20
3.12 Employment, Severance and Termination Agreements, etc. Schedule 3.12
-----------------------------------------------------
lists all employment, severance, "golden parachute" or termination or
compensation agreements, arrangements or understandings of the Company or any of
its Subsidiaries with any present member of the Board of Control, management
committee member, officer, employee, consultant or group of employees of the
Company or any of its Subsidiaries, other than agreements terminable by the
Company or any of its Subsidiaries at will without expense or liability to the
Company or any of its Subsidiaries (except for customary severance payments in
accordance with existing practices) ("Schedule 3.12 Agreements"). Except as
------------------------
indicated on Schedule 3.12, none of the Schedule 3.12 Agreements provides for
payments by the Company or any of its Subsidiaries in connection with the sale
of the Fremont Interests and no amount will become due from the Company or any
of its Subsidiaries to any employee, consultant, officer, management committee
member or member of the Board of Control of the Company or any of its
Subsidiaries as a result of the transactions contemplated by this Agreement.
3.13 Insurance. The Company and its Subsidiaries have or have made
---------
provision for, usual and customary insurance coverage through October 31, 1996
and have made or will make provision for renewal of such coverage through the
Closing Date. Set forth on Schedule 3.13 is a true and complete list of all
insurance policies and their respective initial dates of coverage to the extent
they are for the benefit of or relate to the Company or any of its Subsidiaries
or their employees (the "Schedule 3.13 Insurance Policies") listing (to such
--------------------------------
extent) (i) the name of the insurer with which such policy is carried, (ii) the
annual premium payable thereunder, (iii) a brief description of the categories
of liabilities covered thereunder and (iv) the amount of coverage and
deductibles thereunder. None of the Schedule 3.13 Insurance Policies is in
default, and neither the Company nor any of its Subsidiaries has failed to give
any notice or present any claim thereunder in due or timely fashion or as
required by any of such Schedule 3.13 Insurance Policies so as to jeopardize
full recovery under the Schedule 3.13 Insurance Policies. Except as set forth in
Schedule 3.13, no amount is owing by the Company under any Schedule 3.13
Insurance Policy for the benefit of any Subsidiary or affiliate. Prior to the
date hereof, no pending claim by the Company under any policy in excess of
$100,000, individually or in the aggregate, has been questioned or disputed, nor
has any insurer reserved any rights with respect to any such claims. Except as
set forth in Schedule 3.13, as of the date hereof, there are no claims by the
Company pending under any Schedule 3.13 Insurance Policies in excess of
$100,000, individually, or $250,000 in the aggregate.
3.14 Affiliated Party Transactions. Except as set forth on Schedule 3.14,
-----------------------------
no contracts or agreements are in effect
21
as of the date hereof between (i) on the one hand, the Company or its
subsidiaries and (ii) on the other hand, any of its partners or their respective
affiliates. For purposes of this Section 3.14 an "affiliate" of any Person shall
mean any other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such Person. For the purposes of
this definition, "control", when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings that correspond to
the foregoing.
3.15 Environmental Matters. Except as set forth in Schedule 3.15, to the
---------------------
Knowledge of the Company:
(a) the Company and each of its Subsidiaries is in compliance with all
federal, state, and local laws, rules, regulations and ordinances governing
pollution or the protection of human health or the environment ("Environmental
-------------
Laws");
----
(b) neither the Company nor any of its Subsidiaries has received any
written notice, pursuant to which it is reasonably likely that the Company or
any of its subsidiaries may be required to pay an amount in excess of $100,000,
individually, or $250,000, in the aggregate, that remains pending or outstanding
with respect to the business of, or any property now or formerly owned or leased
by, the Company or any of its subsidiaries from any Governmental Authority or
third party alleging that the Company or any of its Subsidiaries is not in
compliance with any Environmental Law;
(c) there has been no release of a Hazardous Material, other than
releases permitted under federal, state or local laws or regulations, in excess
of a reportable quantity on any real property now or formerly owned or leased by
the Company or any of its subsidiaries during such time, with respect to the
Company's or any subsidiaries formerly owned or leased properties, used for the
business of the Company or any of its subsidiaries, and neither the Company nor
any of its subsidiaries has received any notice of actual or potential liability
for any such release, pursuant to applicable Environmental Laws for Hazardous
Materials sent to off-site locations from any real property now or formerly
owned or leased by the Company or any of its subsidiaries during such time as
such property was used for the business of the Company or any of its
subsidiaries;
(d) there is no response or remediation or other similar corrective
action, or related investigation, by the Company or any of its subsidiaries
pursuant to any Environmental Law or under the direction of any Governmental
Authority currently being performed or that has been performed or has been
22
required by any Governmental Authority to be performed by the Company or any of
its Subsidiaries at any real property now or formerly owned or leased by the
Company or any of its subsidiaries for the business of the Company during the
last of its two (2) years in connection with Hazardous Materials; and
(e) there are no underground or above-ground storage tanks at any real
property owned by the Company or its Subsidiaries or otherwise owned by the
Company or any of its Subsidiaries or, in the case of leased property, used
currently or previously, by the Company or any subsidiaries.
3.16 No Brokers. The Company has not employed any broker or finder or
----------
incurred any liability for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated by this Agreement except for
Xxxxxxx, Xxxxx & Co. (whose fees and expenses have been previously disclosed in
writing to the Purchasers).
3.17 No Other Representations. The Company acknowledges that, except as set
------------------------
forth in Article IV and the Partnership Agreement, the Purchasers have made no
representation or warranty whatsoever to the Company.
3.18 Assets. Except as set forth in Schedule 3.18, the Company and its
------
Subsidiaries own or have the right to use all assets necessary to permit the
Company and its Subsidiaries to conduct their business as it is currently being
conducted, and the assets of the Company and its Subsidiaries have been
adequately maintained in accordance with industry standards and are in good
repair, reasonable wear and tear excepted.
3.19 Intangible Property.
-------------------
(a) Schedule 3.19 sets forth a list of each material trademark, trade
name, patent, service xxxx, computer program (other than readily available off-
the-shelf programs) and copyright of the Company and its Subsidiaries as well as
a list of all registrations thereof and pending applications therefor, and each
material license or other contract relating thereto (collectively, the "Company
-------
Intangible Property"). Other than the trademarks and service marks listed on
-------------------
Schedule 3.19, the Company owns no material intellectual property which is
necessary to permit the Company and its Subsidiaries to conduct their business
as is currently being conducted. Except as set forth in Schedule 3.19, all of
the Company Intangible Property set forth on Schedule 3.19 is owned by the
Company or its Subsidiaries free and clear of any and all Liens, other than
Permitted Liens. Except as set forth in Schedule 3.19, the use of the Company
Intangible Property set forth on Schedule 3.19, and to the Knowledge of the
Company, the use of Company Intangible Property other than the Company
Intangible Property set forth on Schedule
23
3.19, by the Company or its Subsidiaries does not infringe upon any intellectual
property right, including, without limitation, any trademark, trade name,
patent, service xxxx, computer program, or copyright of any other Person and
neither the Company nor any of its Subsidiaries has received any notice of any
claim that any of the Company Intangible Property is invalid or unenforceable or
violates or infringes upon the rights of any other Person and none of the
Company Intangible Property has been abandoned, cancelled or rendered
unenforceable.
(b) Each of the Company and its Subsidiaries owns, or has a valid
right to use, all Company Intangible Property necessary for the operation of its
respective business.
(c) Except as set forth in Schedule 3.19, each of the material
licenses or other Contracts relating to the Company Intangible Property
(collectively, the "Company Intangible Property Licenses") is in full force and
------------------------------------
effect and is valid and enforceable in accordance with its terms, and there is
no default under any Company Intangible Property License either by the Company
or any of its Subsidiaries or, to the Knowledge of the Company, by any other
party thereto and there has been no failure to maintain or enforce any Company
Owned Intangible Property.
3.20 Franchises. Schedule 3.20 contains a list of all franchisees with whom
----------
the Company or any of its Subsidiaries has franchise agreements, and all such
franchise agreements and other contracts with such franchisees, each of which
agreement, except as otherwise set forth in Schedule 3.20, is a written
agreement. Except as set forth in Schedule 3.20, all contracts, agreements and
commitments set forth in Schedule 3.20 are valid, binding and enforceable and in
full force and effect and neither the Company or any of its Subsidiaries, nor to
the Knowledge of the Company or any of its Subsidiaries, any other party thereto
has breached any provision thereof nor is the Company or any of its
Subsidiaries, to the Knowledge of the Company, any other party thereto in
default thereunder in any material respect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
------------------------------------------------
Each of the Purchasers hereby represents and warrant(s), jointly and
severally, to the Fremont Partners and the Company as follows:
4.1 Accredited Investor. Each Purchaser is an "accredited investor" as such
-------------------
term is defined in Regulation D under the Securities Act.
24
4.2 Investment. Each Purchaser is acquiring the Purchaser Interest
----------
for investment for its own account, not as a nominee or agent, and not with the
view to, or for resale in connection with, any distribution thereof in violation
of the Securities Act. Each Purchaser understands that the Purchaser Interest
to be purchased has not been, and will not be registered under the Securities
Act by reason of a specific exemption from the registration provisions of the
Securities Act, the availability of which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of each Purchaser's
representations as expressed herein. Each Purchaser understands and
acknowledges that the Purchaser Interest is subject to restrictions on transfer
pursuant to the terms of the Partnership Agreement.
4.3 No Public Market. Each Purchaser understands that no public
----------------
market now exists for the Fremont Interests and acknowledges that the Purchaser
Interest must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. Each
Purchaser is aware of the provisions of Rule 144 promulgated under the
Securities Act which permit limited resales of securities purchased in a private
placement, subject to the satisfaction of certain conditions, and that there can
be no assurance that Rule 144 or any other exemption from the registration
requirements of the Securities Act will ever be available for resales of the
Purchaser Interest.
4.4 Organization; Authority; Validity; No Conflict.
----------------------------------------------
(a) Each Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Purchaser has full corporate power and authority to own,
lease and operate the properties held or used by it and to carry on its business
as currently conducted and to consummate the transactions provided for hereby.
(b) Each Purchaser has the corporate power and authority to enter
into this Agreement, and to carry out its obligations hereunder. Neither the
execution or delivery of this Agreement nor the consummation of the transactions
provided for hereby requires any further corporate action on the part of any of
the Purchasers. This Agreement has been duly executed by each Purchaser and,
assuming due execution by each of Roadside, SVI and the Company, is a legal,
valid and binding obligation of the Purchaser, enforceable against each
Purchaser in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and subject,
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in an action at law or a suit in equity).
25
(c) Neither the execution and delivery of this Agreement by any
of the Purchasers, nor the consummation by any of the Purchasers of the
transactions contemplated hereby, nor compliance by any of the Purchasers with
or fulfillment of the terms and provisions hereof, nor the consummation of the
transactions provided for hereby, will:
(i) Conflict with or result in a breach of any provision of
the charter, bylaws or similar documents of any of the Purchasers;
(ii) Violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) or require any consent
under, or give any right to terminate, modify or accelerate or to penalize
any of the Purchasers or result in the imposition of any Lien upon or the
creation of any security interest in any of the assets of any of the
Purchasers, under, any note, bond, mortgage, indenture, deed of trust,
permit, lease, contract, agreement or other instrument, commitment or
obligation to which any of the Purchasers is a party or by which its
properties may be bound, other than (A) consents the failure of which to
obtain would not, individually or in the aggregate, have a material adverse
effect on the ability of any of the Purchasers to consummate the
transactions contemplated hereby or, following the Closing, on the
business, results of operation or financial condition of any of the
Purchasers (a "Purchaser Material Adverse Effect") and (B) violations,
---------------------------------
conflicts, breaches, defaults, terminations, modifications, accelerations,
penalties, liens and security interests which would not, individually or in
the aggregate, have a Purchaser Material Adverse Effect;
(iii) Violate any order, writ, injunction, decree, judgment,
ruling, law, rule or regulation of any court or Governmental Authority,
applicable to any of the Purchasers or any of its properties, other than
violations which would not, individually or in the aggregate, have a
Purchaser Material Adverse Effect; or
(iv) Require, on the part of any of the Purchasers any
order, consent, approval or authorization of, or notice to, or declaration,
filing or registration with, any Governmental Authority, other than those
which shall have been obtained on or before the Closing Date or the failure
of which to obtain
26
would not, individually or in the aggregate, have a Purchaser Material
Adverse Effect.
4.5 Financing. In order to pay the Purchase Price required by
---------
Section 1.3 (a), the cancellation or repurchase of indebtedness contemplated by
Section 1.3(b)(i) and other costs associated with the transactions contemplated
hereby and with the operation of the Company after the Closing Date, the
Purchasers have (i) commitments for equity financing in an amount equal to
$35.73 million (the "Equity Commitments"), with no conditions attached to such
------------------
commitments other than satisfaction of the conditions to the Purchaser's
obligations under this Agreement set forth in Section 10.1 and (ii) obtained a
letter from the Bank of Boston, a true and correct copy of which, dated October
17, 1996 has been previously provided to the Fremont Partners (the "Commitment
----------
Letter"). The financing proposed in such letter is referred to herein as the
------
"Debt Financing." The Equity Commitments together with the Debt Financing are
sufficient to pay the Purchase Price, the cancellation or retirement of
indebtedness contemplated by Section 1.3(b)(i) and other costs associated with
the transactions contemplated hereby and with the operation of the Company after
the Closing Date. The Purchasers do not know of any event or occurrence as a
result of which any of the conditions to the availability of the Debt Financing,
set forth in the Commitment Letter or otherwise, would not be satisfied.
4.6 No Brokers. The Purchasers have not employed any broker or
----------
finder or incurred any liability for any brokerage fees, commissions or
finders' fees in connection with the transactions contemplated by this
Agreement.
4.7 No Other Representations. Each Purchaser acknowledges that,
------------------------
except as set forth in (i) Article II, the Fremont Partners have not made
any representation or warranty whatsoever to any of the Purchasers and (ii)
Article III, the Company has not made any representation or warranty
whatsoever to any of the Purchasers.
ARTICLE V
COVENANTS OF THE COMPANY AND THE FREMONT PARTNERS
-------------------------------------------------
5.1 Reasonable Efforts. Each of the Company and the Fremont Partners
------------------
shall use all commercially reasonable efforts to satisfy the conditions to
Closing set forth in Section 10.1 of this Agreement and otherwise to consummate
the transactions contemplated by this Agreement as expeditiously as possible.
5.2 No Solicitation. Neither the Company nor the Fremont
---------------
Partners shall directly or indirectly (or shall cause its
27
advisors to) solicit, authorize the solicitation of or enter into any discussion
(or continue any discussion) with any third party (other than the Purchasers)
concerning any offer or possible offer from any such third party (i) to purchase
any partnership or other interest in the Company, any option or warrant to
purchase such interests or any securities convertible into such interests or any
other security of the Company, (ii) to purchase, lease or otherwise acquire
assets of the Company or any of its Subsidiaries other than in the ordinary
course of business or (iii) to merge, consolidate or otherwise combine with the
Company or any of its subsidiaries (any such offer or possible offer being, an
"Acquisition Proposal"). Each of the Company and the Fremont Partners shall use
--------------------
their best efforts to obtain the return of all confidential information provided
to any third parties (other than the Purchasers) relating to any such potential
transactions involving the Company. Each of the Company and the Fremont Partners
shall immediately notify the Purchaser if any inquiries are received in respect
thereof, and shall provide details with respect thereto, including the identity
of such third party and the price and terms of any such offer.
5.3 Further Assurances. Consistent with the terms and
------------------
conditions hereof, each of the Company and the Fremont Partners shall execute
and deliver such instruments, certificates and other documents and take such
other action as the Purchaser may reasonably require in order to carry out this
Agreement and the transactions contemplated hereby.
5.4 Notice of Certain Events. The Fremont Partners shall
------------------------
notify each Purchaser and the Company promptly of: (a) any event or condition
that would cause any of the representations and warranties made by the Fremont
Partners contained herein no longer to be complete and accurate as of any date
on or before the Closing Date or that may otherwise be necessary to update,
supplement or amend the schedules attached hereto, (b) any failure on the part
of the Fremont Partners to comply with any of its covenants or agreements
contained herein at any time on or before the Closing Date, provided, however,
-------- -------
that any such notice shall not be deemed to cure or waive any breach of a
representation or warranty or of a covenant or agreement made as of the date of
this Agreement unless the Purchaser shall have waived such breach by
consummating the transactions contemplated hereunder notwithstanding such
notice. In addition, the Fremont Partners shall notify each Purchaser promptly
of any Fremont Material Adverse Effect.
5.5 Designated Employees. Prior to the Closing, the Company
--------------------
shall terminate, or cause the termination of, Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
The Company shall be solely liable for any severance, termination, "golden
parachute" or other payments or benefits due Xxxxxxxxx under law or contract,
including without limitation, any and all payments, awards and benefits
28
that may be due Xxxxxxxxx under the "Employment Agreement of Xxxxxx X.
Xxxxxxxxx," dated January 1, 1993, with Petro PSC, L.P. and Petro PSC
Properties, L.P. (predecessors of the Company), or any other agreement between
Xxxxxxxxx and the Company. The Company shall use commercially reasonable efforts
to obtain a general release from Xxxxxxxxx, on or prior to the Closing Date,
with respect to any and all claims that he may have against the Company or any
of its Affiliates; provided, however, that the Company shall not be required to
-------- -------
make any expenditures or otherwise incur any obligations whatsoever in
connection therewith (other than as required by his employment agreement).
5.6 1995 Class B Limited Partnership Interest Options. On or
-------------------------------------------------
prior to the Closing Date, any nonvested portions of options granted to
employees under a "Petro Stopping Centers, L.P. 1995 Class B Limited Partnership
Interest Option Agreement," or under any other agreement or arrangement granting
any option to an employee to acquire an interest in the Company (the "Option
------
Agreement"), shall be cancelled in accordance with the terms of the Option
---------
Agreement, and any vested portions of options granted to employees under an
Option Agreement shall be repurchased by the Company or be deemed to lapse in
accordance with the terms of the Option Agreement. Any and all costs, fees,
repurchase amounts or compensation paid to employees or otherwise arising from
or in connection with the forfeiture, repurchase or lapse of their options under
an Option Agreement shall be for the Company's account and, in the event that
the aggregate amount of all such costs, fees, and compensation exceeds $100,000,
shall require Purchaser's prior consent (which consent shall not be unreasonably
withheld).
5.7 Partnership Agreement. The Partnership Agreement shall not
---------------------
be amended in any manner inconsistent with the transactions contemplated
hereby.
5.8 Board of Control. The Fremont Partners will not, as members
----------------
of the Board of Control, consent to any action by the Company that would
cause the Company to breach Section 6.2 hereof.
5.9 Conversion of General Partnership Interests. Upon the
-------------------------------------------
request, and at the election, of the Purchasers, Roadside, and SVI if required,
and the Company shall consent to the conversion by Petro, Inc., a Texas
corporation ("Petro"), of up to 12.33% of its General Partnership Interest to a
-----
Limited Partnership Interest; provided, that the Fremont Partners shall not be
liable for any Tax liability or other adverse Tax consequence that Petro may
suffer in connection with this Section 5.9.
29
ARTICLE VI
COVENANTS OF THE COMPANY
------------------------
6.1 Notice of Certain Events. The Company shall notify each
------------------------
Purchaser and the Fremont Partners promptly of: (a) any event or condition that
would cause any of the representations and warranties made by the Company
contained herein no longer to be complete and accurate as of any date on or
before the Closing Date, and (b) any failure on the part of the Company to
comply with any of its covenants or agreements contained herein at any time on
or before the Closing Date; provided, however, that any such notice shall not be
-------- -------
deemed to cure or waive any breach of a representation or warranty or of a
covenant or agreement made as of the date of this Agreement (as distinguished
from those representations and warranties made as of the Closing Date) unless
the Purchaser shall have waived such breach by consummating the transactions
contemplated hereunder notwithstanding such notice. In addition, the Company
shall notify the Purchaser promptly of any Company Material Adverse Effect.
6.2 Conduct of Business Prior to the Closing. On and after the date
----------------------------------------
hereof and prior to the Closing Date, and except as otherwise provided in this
Agreement or consented to or approved by each Purchaser (which consent or
approval will not be unreasonably withheld), the Company agrees that:
(a) The Company shall, and shall cause each of its Subsidiaries
to, carry on the Company's business in the ordinary course in substantially the
same manner as presently conducted and maintain its business records with
respect to the Company's business accurately and completely in all material
respects;
(b) The Company shall not, and shall cause each of its
Subsidiaries not to, take any action or omit to take any action which will
result in a violation by the Company or any subsidiary of any applicable law,
authorization or permit or cause a breach of any Material Contract by the
Company or any of its Subsidiaries; and
(c) Company shall not, and shall cause each Subsidiary not to,
without the prior written consent of each Purchaser, take or fail to take any
commercially reasonable action that results in the condition set forth in
Section 10.1(a) failing to be satisfied. Company shall promptly notify each
Purchaser in writing of the occurrence of any matter or event that is material
to the business, assets, working capital, financial condition, results of
operations or liabilities (absolute, accrued, contingent or otherwise) of the
Company;
30
(d) The Company shall furnish to the Purchasers within twenty
(20) days after the end of each month, commencing with the month ending
September 30, 1996: (a) an unaudited statement of operations and cash flow
statement of the Company for such month and for the period of its fiscal year
ended at the end of such month; and (b) an unaudited balance sheet of the
Company as of the end of such month. The Company shall timely file its Quarterly
Report on Form 10-Q for the period ended September 30, 1996. The financial
statements to be delivered by the Company hereunder shall be prepared from the
books and records of the Company and shall be presented in form and substance
consistent with the past practice of the Company with respect to monthly
financial statements prepared by the management of the Company for the Board of
Control of the Company;
(e) After the date hereof, other than (i) in the ordinary course
of business and (ii) actions by officers of the Company permitted by the
Partnership Agreement following approval of the 1996 Annual Budget without
further approval of the Board of Control, the Company shall not and shall cause
its Subsidiaries not to enter into any agreement, contract or arrangements, or
amend any existing agreement or contract, by which its assets or properties are
bound or affected under which the Company or any of its Subsidiaries is
obligated to pay in excess of $100,000 individually, or $250,000 in the
aggregate, without the written consent of each Purchaser;
(f) Except as otherwise contemplated herein, the Company shall
use commercially reasonable efforts to preserve the goodwill and relationship of
the Company with all third parties, including but not limited to customers,
franchisees, suppliers and employees; and
(g) It will not make any distributions in respect of any
Partnership or other interests; and
(h) With respect to the matters referred to in Schedule 3.11(b),
the Company shall use its commercially reasonable efforts to file as soon as
practicable with the Internal Revenue Service the Petro PSC, L.P. 401(k) Plan
for a compliance statement under Revenue Procedure 94-62.
6.3 Access to Properties and Records. Between the date of this
--------------------------------
Agreement and the Closing Date:
(a) The Company shall afford to the Purchasers and their
accountants, counsel and other authorized representatives, reasonable access
during normal business hours to any and all premises, properties, contracts,
commitments, books, records and other information of the Company's business upon
reasonable notice to the Company and shall cause the
31
officers and employees of the Company to furnish to the Purchasers and its
authorized representatives any and all financial, technical and operating data
and other information pertaining to the Company's business as the Purchasers
shall from time to time reasonably request; and
(b) Each Purchaser acknowledges that the information being
provided to it and its representatives by the Company is subject to the terms of
a confidentiality agreement between Xxxxxxx, Xxxxx & Co., on behalf of the
Company, and Chartwell Investments, Inc. and Mobil Oil Company, dated April 13,
1996 and April 10, 1996, respectively (as each was amended July 23, 1996, the
"Confidentiality Agreements"), which terms are incorporated herein by reference.
---------------------------
ARTICLE VII
COVENANTS OF THE PURCHASERS
---------------------------
7.1 Consent Solicitation. As soon as practicable following the date
--------------------
hereof, but in no event later than October 30, 1996, the Purchasers shall
commence a solicitation of consents from the holders of all outstanding Notes
(the "Consent Solicitation") to certain amendments (the "Amendments") to that
certain Indenture, dated as of May 24, 1994 among Petro PSC Properties, L.P. (as
predecessor to the Company), Petro Financial Corporation and First Trust
National Association, as Trustee. The effectiveness of the Amendments will be
conditioned upon obtaining valid consents from holders of not less than 75% in
aggregate principal amount of the Notes outstanding. The other terms and
conditions of the Consent Solicitation, and the terms of the Amendments, will be
substantially, as set forth in the draft form of Consent Solicitation, dated
October 18, 1996, previously provided to the Company and the Fremont Partners.
The Purchasers and the Company shall cooperate in the making and completion of
the Consent Solicitation and in causing the Amendments to become effective prior
to the Closing. If requested by the Purchasers, the Company shall (i) provide
the Purchasers with such lists of the registered holders of the Notes as the
Purchasers may request; (ii) fix a record date for the purpose of determining
the holders of Notes entitled to consent to the Amendments; (iii) execute, and
request the Trustee to execute, an amendment to the Indenture reflecting the
Amendments, all as soon as the Company is advised by the Purchasers that the
holders of the requisite principal amount of the Notes have consented (and not
theretofore revoked such consent to such amendments); provided, however, that
-------- -------
the Purchasers shall (A) deliver to the Company, promptly after receipt but in
no case, more than 3 Business Days after receipt, all consents received pursuant
to the Consent Solicitation and (B) deliver to the Trustee any required legal
opinions. The Purchasers shall ensure that the Consent Solicitation is
conducted in accordance with all
32
applicable laws and the Indenture and that all consents acquired pursuant to the
Consent Solicitation effect the Amendments in accordance with all applicable
laws and the Indenture. Subject to Sections 1.3(b)(i) and 13.1 hereof, the
Purchasers shall be responsible for all Consent Solicitation Expenses and all
other expenses they incur (including, but not limited to, the fees and
disbursements of counsel) in connection with or relating to the Consent
Solicitation.
7.2 Reasonable Efforts. Each Purchaser shall use all commercially
------------------
reasonable efforts to satisfy the conditions to Closing set forth in Section
10.2 of this Agreement and otherwise to consummate the transactions contemplated
by this Agreement as expeditiously as possible.
7.3 Further Assurances. Consistent with the terms and conditions
------------------
hereof, each of the Purchasers shall execute and deliver such instruments,
certificates and other documents and take such other action as the Company or
the Fremont Partners may reasonably require in order to carry out this Agreement
and the transactions contemplated hereby.
7.4 Amendment to Omnibus Agreement. Without the written consent of
------------------------------
the Fremont Partners, the Purchasers shall not amend, waive or otherwise modify
that certain Omnibus Agreement by and among Xxxxx X. Xxxxxxxx, Xx., Xxxxx X.
Xxxxxxxx, Xx., JAJCO II, Inc., Petro, Inc., and Mobil Co, Petro Holdings GP
Corp., Petro Holdings LP Corp. and the Company, of even date herewith (the
"Omnibus 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 Omnibus Agreement.
7.5 Amendment to Partnership Agreement. Without the prior written
----------------------------------
consent of the Fremont Partners (which consent may be granted or withheld in the
sole discretion of the Fremont Partners), the Purchasers shall not cause or
permit any amendment, waiver or other modification of Section 6.6 of the
Partnership Agreement, which provision obligates the Company to indemnify the
general partners of the Company in the circumstances and subject to the
limitations set forth therein.
ARTICLE VIII
ENVIRONMENTAL MATTERS
8.1 Environmental Assessment and Indemnification.
--------------------------------------------
33
(a) Prior to the Closing Date, the Purchasers may, at their own
expense, conduct Phase II Environmental Assessments (the "Assessments") at
-----------
certain of the Company's facilities to investigate environmental conditions, as
reasonably required by the Purchasers' lender or lenders, the scope of which
Assessments shall be based on the reasonable request of the Purchasers' lender
and which shall be subject to the Company's consent, which consent shall not be
unreasonably withheld. The Purchasers shall use their best efforts to complete
the Assessments within 30 days after execution of this Agreement, but in no
event more than 45 days after such date. The Purchasers shall retain Fluor
Xxxxxx/GTI or another environmental consultant mutually agreed to by the
Company. The Purchasers shall cause such consultant to take split samples of
any soil and/or groundwater borings or samples and deliver such borings or
samples to a consultant or laboratory designated by the Company for testing and
verification by the Company, which testing and verification shall be at the
Company's expense. The Purchasers shall cause their environmental consultant to
ensure that all proper protocols and chain-of-custody requirements are met so
that all borings and/or samples meet all applicable standards, and shall provide
all documentation pertaining to the foregoing (including but not limited to
boring logs and chain-of-custody data) to the Company's consultant or laboratory
simultaneous with the split samples. At the time the split samples are shipped
to the Company's consultant or laboratory, the Purchasers shall identify which
parallel samples they intend to actually sample, including, but not limited to,
the constituents to be tested and the testing protocol to be used.
(b) In the event that contamination above applicable regulatory
action levels ("Excess Contamination") is found in any of the samples taken on
--------------------
behalf of the Purchasers, such results shall be subject to verification by the
Company, including resampling as appropriate and agreed to by and between the
Company and the Purchasers. If the Company and the Purchasers agree that the
subject property contains Excess Contamination in excess of both the reserves
set forth in the Company's June 30, 1996 balance sheet, plus the then current
budget for environmental expenditures without duplication (together which
approximate $445,000), and if such contamination was caused by or is legally
imputable to the Company, the Purchasers shall cause their environmental
consultant to develop, within five (5) days of the Company's verification of
Excess Contamination, a cost estimate (excluding the cost of the Assessments)
for the additional investigation and remediation anticipated to be required by
the Governmental Authorities having responsibility for the Excess Contamination
under Environmental Laws ("Article VIII Remediation"). The Purchasers shall
------------------------
provide a copy of all reports and data generated or prepared by or for the
Purchasers pursuant to this paragraph 8.1 promptly to the Company. All reports,
data or other information prepared or generated by or
34
for the Purchasers in connection with this paragraph 8.1 shall be considered
confidential within the meaning of the Confidentiality Agreements. The Company
shall have the right to retain its own environmental consultant to verify such
cost estimate.
(c) If, as of the Closing Date, the Purchasers and the Company
disagree, based on the cost estimates developed in accordance with subsection
(b) of this Section 8.1, as to whether the Article VIII Remediation will exceed
$1,500,000, then the Purchasers and the Company shall mutually designate an
independent consultant (compensated equally by the Purchasers and the Company)
to develop a similar cost estimate, and such cost estimate shall be
determinative for purposes of Section 10.1(h) costs for the Article VIII
Remediation as set forth in subsection (d) of this Section 8.1.
(d) The parties agree that, following the Closing, the Company
shall pay for actual costs incurred for Article VIII Remediation up to and
including $500,000; that the Fremont Partners shall pay for 45.17% of such costs
in excess of $500,000 up to $1,500,000; and that the Company shall be solely
responsible and pay for any such costs in excess of $1,500,000. Article VIII
Remediation shall not include the costs incurred to prepare the Assessments. The
parties agree that following the Closing the Purchasers shall cause the Company
to undertake responsibility for completing the Article VIII Remediation to the
satisfaction of the applicable Governmental Authorities; provided that, prior to
--------
undertaking any such actions, the Purchasers shall obtain the consent of the
Fremont Partners, which consent shall not unreasonably be withheld. The
Purchasers agree to cause the Company to prepare any documentation and submit
any and all filings, subject to consultation with and agreement by the Fremont
Partners, required by any Environmental Law to all Governmental Authorities in
connection with the Article VIII Remediation. The Purchasers agree that,
following the Closing, the Company shall be responsible for any fines or
penalties based on delay or late filing assessed by any Governmental Authority
in connection therewith following the Closing.
(e) Notwithstanding Article XI of this Agreement and other than
as provided in Section 10.1(h), this Section shall be the sole remedy of the
Purchasers in connection with, relating to or resulting from the Assessments, or
for breach of Section 3.15(d) hereof, and the obligations of the Fremont
Partners under Section 8.1(d) shall terminate eighteen (18) months after the
Closing Date; provided, however, that the obligations of the Fremont Partners
-------- -------
under Section 8.1(d) shall not terminate with respect to those claims
specifically identified with reasonable particularity and supporting
documentation by written notice from the Purchaser to the Fremont Partners prior
to the termination of such eighteen-month period.
35
ARTICLE IX
TAX MATTERS
-----------
9.1 Cooperation. After the Closing Date, the Fremont Partners, the
-----------
Purchasers, and the Company (and each of their respective partners, officers,
employees, representatives, or affiliates) shall reasonably cooperate with each
other in the filing of Tax Returns and in contesting any Tax claim with respect
to the Company or with respect to the Fremont Partners solely in their capacity
as partners of the Company, which cooperation shall include (i) the retention
(until the applicable statute of limitation shall have expired) and, upon the
request of the party or parties filing such Tax Returns or controlling
proceedings relating to such Tax claim, the provision to such party or parties,
of records and information which are relevant to such Tax Returns or such Tax
claim and (ii) making employees available on a mutually convenient basis to
provide additional information, explanation of any material provided hereunder,
assistance in completing such Tax Returns or to testify at proceedings relating
to such Tax claim. The party requesting such information shall pay the
reasonable external costs of the party providing the requested information.
9.2 Closing Tax Return.
------------------
(a) No later than forty-five (45) business days prior to the
time required by law for the filing of such returns (including any extensions),
the Company shall, and the Purchasers shall cause the Company to, prepare for,
and deliver to, the Fremont Partners a Federal Schedule K-1 (the "Closing K-1")
-----------
and any substantially similar state Tax Return with respect to the Company for
the period which begins after the 1995 taxable year and includes the Closing
Date (the "Pre-Closing Date Period"). Such Closing K-1 and state Tax Returns
shall be prepared (i) in a manner consistent with past practice and (ii) in
accordance with the interim closing of the books method that clearly reflects
income. In preparing such returns, the Company shall not, and the Purchasers
shall take all actions legally available to it to cause the Company not to, take
any position, except as required by applicable law or consistent with past
practice, which would result in, or have the effect of, (x) the shifting of
deductions, credits and other similar items into a post-Closing Date period or
(y) the shifting of income and other similar items into the Pre-Closing Date
Period. The Purchasers, the Company and the Petro Partners (as defined below)
shall cooperate with the Fremont Partners with respect to (i) matters involving
Taxes that are not consistent with past practice and that could materially
affect the Fremont Partners' liability for Tax in a Pre-Closing Date Period and
(ii) the method of implementing the closing of the books method for purposes of
this Section 9.2(a).
36
(b) No later than thirty (30) days prior to the time required by
law for the filing of such returns (including any extensions), the Company
shall, and the Purchaser shall cause the Company to, deliver to the Fremont
Partners for review and approval any Tax Returns required to be filed by the
Company with respect to the Pre-Closing Date Period. Such Tax Returns shall not
be filed without the prior written approval of the Fremont Partners, which
approval shall not be unreasonably withheld. The Fremont Partners shall either
deliver such approval to the Company or notify the Company of any objections no
later than seven (7) days prior to the time required for the filing of the Tax
Return.
9.3 Pre-Closing Date Tax Audits.
---------------------------
(a) The Fremont Partners shall be responsible for and shall have
the right to control, along with Petro, Inc., Xxxxx X. Xxxxxxxx, Xx., Xxxxx X.
Xxxxxxxx, Xx. and JAJCO II, Inc. (collectively, the "Petro Partners"), any audit
--------------
concerning any matters related to Taxes of the Company for periods prior to and
including the Closing Date ("Pre-Closing Audit"). The Company shall, and the
Purchasers shall take all actions legally available to it to cause the Company
to, (i) promptly notify the Fremont Partners in writing of the commencement of
any Pre-Closing Audit and (ii) take any actions or undertakings that are
necessary to permit the Fremont Partners to participate in such Pre-Closing
Audit and, along with the Petro Partners, to jointly control the proceedings
related thereto, provided that the Fremont Partners and the Petro Partners shall
(x) keep the Purchasers apprised of any events arising out of such Pre-Closing
Audit or proceedings that may materially affect such Purchaser's liability for
Tax. In the event that, during the course of a Pre-Closing Audit, the Fremont
Partners and the Petro Partners seek to take any position (including by agreeing
with the position of a Tax authority) that (x) is inconsistent with past
practice and (y) would, in respect of periods after the Closing Date, materially
adversely affect the Tax liability of the partners of the Company, determined in
the aggregate, then the Fremont Partners shall obtain the written consent of the
Company prior to taking any such position, which consent shall not be
unreasonably withheld. If the Company does not consent, then the Company shall
defend and hold the Fremont Partners and the Petro Partners harmless from and
against any increased liability for Tax and any other Damages (as defined below)
resulting from the failure to take the position sought to be taken by the
Fremont Partners and/or the Petro Partners. In the event that the Company
elects to withhold such consent, the Company shall deliver to the Fremont
Partners or the Petro Partners, as the case may be, a written confirmation of
the foregoing undertaking at the time it so elects.
37
(b) In no event shall the Company or any partner thereof settle
any audit of the Company for any periods prior to or including the Closing Date
without the written consent of the Fremont Partners, which consent shall not be
unreasonably withheld. The Purchasers acknowledge that after the Closing Date,
the Tax Matters Partner (as defined in the Partnership Agreement) shall be
Petro, Inc.
9.4 Purchase Price Allocation. Within ninety (90) days after the
-------------------------
Closing Date, the Fremont Partners and the Purchasers shall mutually agree on an
allocation of the Purchase Price among the assets of the Company to which the
Purchaser Interest relates according to the relative fair market values of such
assets on the Closing Date. The Purchasers may select, at the Company's cost
and expense, an independent appraisal firm to conduct the initial appraisal of
such fair market values. If the agreed-upon allocation would have a material
adverse effect on the Petro Partners with respect to the allocation of profit
and loss subsequent to the Closing Date, the consent of the Petro Partners shall
be required to such allocation, which consent shall not be unreasonably
withheld. If the parties are unable to agree on such fair market values, the
parties shall select an independent appraisal firm (other than the firm which
conducted the initial appraisal, if any) to determine such values. The
conclusion of such appraisal firm shall be conclusive and binding. The fees and
expenses of such appraisal firm shall be shared equally by the Fremont Partners
and the Company.
9.5 Treatment of Purchaser Interest. The Fremont Partners and the
-------------------------------
Purchasers agree that the sale and purchase of the Purchaser Interest
contemplated by this Agreement shall be treated as a sale and purchase of
partnership interests in the Company for all Tax purposes.
9.6 Transfer Taxes. All state and local transfer, documentary,
--------------
stamp, and other similar Taxes or fees payable solely with respect to and
directly as a result of the purchase and sale of the Purchaser Interest pursuant
to Section 1.2 of this Agreement shall be borne by the Fremont Partners.
9.7 Section 754 Election. At the request of any of the Purchasers,
--------------------
the Tax Matters Partner shall cause the Company timely to make an election
pursuant to section 754 of the Code.
ARTICLE X
CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
-------------------------------------------
10.1 Conditions Precedent to the Obligations of the Purchasers. The
---------------------------------------------------------
obligations of the Purchasers under this Agreement shall be subject to each of
the following conditions
38
(except such of the following conditions as shall have been expressly waived in
writing by the Purchasers):
(a) All of the representations and warranties other than those
in Section 3.15 hereof of each of the Fremont Partners and the Company contained
in this Agreement (and any Schedule to this Agreement or closing certificate
delivered in connection herewith) 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 or a Purchaser Material Adverse Effect. For purposes of the
immediately preceding sentence, the parenthetical phrase "without reference to
any materiality qualifications contained therein" shall not apply to the
materiality standard contained within the definition of "Company Material
Adverse Effect" set forth in the first sentence of Section 3.5. Each of the
Fremont Partners and the Company 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 Purchaser
Material Adverse Effect (except for Section 6.2(d) as to delivery of the
financial information specified therein and Section 6.2(g) as to which no
material standard shall apply); and the Purchasers shall have received at the
time of the Closing certificates from each of the Fremont Partners and the
Company reasonably satisfactory in form to the Purchasers certifying as to the
satisfaction by each the Fremont Partners and the Company of all of the
conditions set forth in this Section 10.1(a) and Sections 10.1(c), (d), (h), (i)
and (j);
(b) The Purchasers shall have received the written opinion of
(i) the General Counsel of SVI addressed to the Purchasers and dated as of the
Closing Date, substantially in the form of Exhibit A, (ii) Skadden, Arps, Slate,
Xxxxxxx & Xxxx, counsel to the Fremont Partners addressed to the Purchasers and
dated as of the Closing Date, substantially in the form of Exhibit B and (ii)
Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to the Company addressed to the
Purchasers substantially in the form of Exhibit C;
---------
(c) (i) No action, suit, claim or administrative proceeding
shall be pending seeking to restrain,
39
enjoin or prohibit or declare illegal, or seeking damages in connection with,
any part of the 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 the
Purchasers of substantial damages that in each such case would reasonably be
expected to have a Company Material Adverse Effect or a Purchaser Material
Adverse Effect;
(ii) None of the parties to this Agreement or their affiliates shall
have received written notice from any Governmental Authority 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 Purchaser Material Adverse Effect;
(iii) 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 Purchasers' ability, as of the Closing Date, to
effect the transactions contemplated hereunder in accordance with the terms
hereof or to operate the business of the Company substantially in the same
manner as presently being conducted;
(d) The consents, permits and approvals of Governmental
Authorities and other Persons listed on Schedule 10.1(d) hereto shall have been
obtained with no material adverse conditions attached and no material expense
imposed on the Company;
(e) The Purchasers shall have received an assignment from
Roadside of its rights under that certain Option and Right of First Refusal
Agreement, dated as of April 30, 1992, by and among Petro PSC Properties, L.P.,
Roadside, Xxxxx X. Xxxxxxxx, Xx. and Xxxxx X. Xxxxxxxx, Xx;
(f) The Purchasers shall have received a certificate of non-
foreign status for purposes of sections 897 and 1445 of the Code executed by
each of the Fremont Partners in a form reasonably acceptable to the Purchasers.
If such certificate is not delivered to the Purchasers by the Fremont Partners,
the Purchasers shall be entitled to withhold 10% of the Purchase Price;
40
(g) The Debt Financing shall be available to the Purchasers
substantially consistent with the terms set forth in the Commitment Letter.
(h) The Article VIII Remediation costs, as determined by the
procedures set forth in Section 8.1 hereof, shall not be in excess of $1.5
million; and, in any event, if the Purchasers and the Fremont Partners disagree
as to such costs, but agree that such costs do not exceed $1.5 million, this
Section 10.1(h) shall be deemed satisfied.
(i) There shall not have been a Company Material Adverse Effect
subsequent to the date hereof except for such matters disclosed in Schedule 3.5;
(j) The Fremont Partners shall have, by written agreement: (i)
waived a pro rata share of its annual fee for services rendered pursuant to the
Partnership Agreement for the period from the Closing Date through December 31,
1996; (ii) terminated any provision in any agreement pursuant to which such
services have been provided; and (iii) acknowledged that neither they nor their
affiliates are entitled to any other fees or other payments from the
Partnership; and
(k) The Purchasers shall have consummated the Consent
Solicitation;
(l) All actions required to be taken or completed by the Company
on or prior to the Closing Date pursuant to Sections 5.5 and 5.6 shall have been
taken or completed; and
(m) The filing described in Section 6.2(h) shall have been made.
10.2 Conditions Precedent to the Obligations of the Fremont Partners.
---------------------------------------------------------------
The obligations of the Fremont Partners under this Agreement shall be subject to
each of the following conditions (except such of the following conditions as
shall have been expressly waived in writing by the Fremont Partners):
(a) All of the representations and warranties of the Purchasers
contained in this Agreement and any document delivered in connection herewith
shall be true and correct in all material respects 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 Fremont Material Adverse Effect. The Purchasers shall
have performed and complied with, in all
41
material respects, 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; and the Fremont Partners and the Company shall have received at the
time of the Closing one or more certificates from the Purchasers reasonably
satisfactory in form to the Fremont Partners and the Company certifying as to
the satisfaction by the Purchasers of all of the conditions set forth in this
Section 10.2(a);
(b) The Fremont Partners and the Company shall have received the
written opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel to the
Purchasers, addressed to the Fremont Partners and the Company and dated as of
the Closing Date, substantially in the form of Exhibit D;
(c) (i) 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 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 the Company or the Fremont Partners of
substantial damages that in each such case would reasonably be expected to have
a Fremont Material Adverse Effect;
(ii) None of the parties to this Agreement or their affiliates shall
have received written notice from any Governmental Authority 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 Fremont Material Adverse
Effect;
(iii) 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 either Roadside or SVI, as of the
Closing Date, to effect the transactions contemplated hereunder in accordance
with the terms hereof;
(d) All consents, permits and approvals of Governmental
Authorities necessary for consummation of the transactions contemplated hereby
shall have been obtained, other than those which, if not obtained, would not
have a Fremont Material Adverse Effect; and
42
(e) The Purchase Price to be paid to the Fremont Partners, after
giving effect to all reductions pursuant to Section 1.3(b) hereof, shall not be
less than $25.5 million; provided, however that such amount shall be reduced by
-------- -------
an amount equal to 45.17% of every dollar by which trade accounts payable and
accrued expenses of the Company as of the Closing Date exceeds $42,429,000 as
determined in accordance with Section 1.5 hereof.
10.3 Conditions Precedent to the Obligations of the Company. The
------------------------------------------------------
obligations of the Company under this Agreement shall be subject to the
following condition (except as such condition shall have been expressly waived
in writing by the Company):
(a) The transactions contemplated under the Omnibus Agreement
shall have been consummated as of the date hereof; and
(b) (i) 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 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 the Company of substantial damages that in
each such case would reasonably be expected to have a Company Material Adverse
Effect; and
(ii) None of the parties to this Agreement or their affiliates shall
have received written notice from any Governmental Authority 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.
ARTICLE XI
TERMINATION OF REPRESENTATIONS
AND WARRANTIES; INDEMNIFICATION
-------------------------------
11.1 Termination of Representations and Warranties. The
---------------------------------------------
representations and warranties of the Company set forth in
43
Article III hereof shall terminate as of the Closing, and shall be of no further
force or effect thereafter. The representations and warranties of the
Purchasers set forth in Article IV hereof shall survive the Closing without
termination. The representations and warranties of the Fremont Partners set
forth in Sections 2.1, 2.2, 2.3, 2.4, 2.5 and 2.8 shall survive the Closing
without termination. The representations of the Fremont Partners set forth in
Sections 2.6 and 2.7 shall terminate upon the earlier to occur of (i) April 30,
1997 and (ii) the issuance of a report of the independent certified public
accountant of the Company or its successor entity with respect to the financial
statements of the Company or its successor entity for the period ended December
31, 1996, and shall be of no further force or effect thereafter; provided,
--------
however, that the obligations of the Fremont Partners under Section 11.2 shall
-------
not terminate with respect to those claims specifically identified with
reasonable particularity and supporting documentation by written notice from the
Purchaser to the Fremont Partners prior to the expiration of the relevant time
periods set forth in this Section 11.1.
11.2 Fremont Partners' Indemnification. Subject to the limitations
---------------------------------
set forth in this Article XI, each of the Fremont Partners jointly and severally
agrees to indemnify, defend and hold the Purchasers harmless from and against
any and all loss, cost, Liability, damage and expenses (including reasonable
legal and other expenses incident thereto, collectively, "Damages") resulting
-------
from breach of (i) any of the Fremont Partners' representations or warranties
contained in Article II of this Agreement or (ii) the covenant of the Fremont
Partners set forth in Section 5.8 of this Agreement; provided, however, the
-------- -------
Purchasers upon consummating the transaction contemplated hereunder shall be
deemed to have waived any right to indemnification under this Section 11.2 for
any breach by the Fremont Partners of Article II of this Agreement or Section
5.8 of this Agreement if such breach or information regarding such breach shall
have been disclosed in writing at or prior to the Closing pursuant to Section
5.4 or Section 6.1 of this Agreement by the Fremont Partners or the Company;
provided, further that any claim for a breach of a representation or warranty
-------- -------
shall have been made prior to the expiration date thereof set forth in Section
11.1 above.
11.3 Purchasers' Indemnification. The Purchasers agree, jointly and
---------------------------
severally, to indemnify, defend and hold the Fremont Partners and the Company
harmless, from and after the Closing Date, from and against any Damages
resulting from any of the Purchasers's breach of any of its representations or
warranties contained in Article IV of this Agreement.
11.4 Limitation.
----------
44
(a) The provisions for indemnity contained in Section 11.2 shall
be effective with respect to a breach of a representation or warranty set forth
in Section 2.6 or 2.7 hereof or of the covenant set forth in Section 5.8 hereof
only to the extent and by the amount that the aggregate amount of all Damages
incurred as a result of such breaches exceeds $250,000 (except for a breach of
Section 6.2(g) as to which all Damages shall be indemnified), and Damages in
excess of $5,000,000 incurred as a result of such breaches shall be for the sole
and exclusive account of the Purchasers. Notwithstanding any other provision of
this Agreement, the liability of the Fremont Partners for Damages to the
Purchasers as a result of a breach of the representation or warranty set forth
in Section 2.6 or 2.7 hereof or of the covenant set forth in Section 5.8 hereof
shall be limited to 45.17% of the aggregate amount of such Damages.
(b) Each Purchaser acknowledges and agrees that after the
Closing, except with respect to any breach by the Fremont Partners of a covenant
to be performed or complied with by the Fremont Partners following the Closing,
the Purchasers' sole and exclusive remedy with respect to any and all claims
relating to the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in Section 11.2.
11.5 Indemnity Procedure.
-------------------
(a) Upon obtaining knowledge of any claim or demand which has
given rise to, or could reasonably give rise to, a claim for indemnification
hereunder, the party seeking indemnification ("Indemnitee") shall promptly give
----------
written notice ("Notice of Claim") of such claim or demand to the other party
---------------
("Indemnitor"). Indemnitee shall furnish to the Indemnitor in reasonable detail
----------
such information as Indemnitee may have with respect to such indemnification
claim (including copies of any summons, complaint or other pleading which may
have been served on it and any written claim, demand, invoice, billing or other
document evidencing or asserting the same). Subject to the limitations set
forth in this Section 11.5(a), no failure or delay by Indemnitee in the
performance of the foregoing shall reduce or otherwise affect the obligation of
Indemnitor to indemnify and hold Indemnitee harmless, except to the extent that
such failure or delay shall have adversely affected Indemnitor's ability to
defend against, settle or satisfy any Liability, damage, loss, claim or demand
for which Indemnitee is entitled to indemnification hereunder.
(b) If the claim or demand set forth in the Notice of Claim
given by Indemnitee is a claim or demand asserted by a third party, Indemnitor
shall have thirty (30) days after the Date of Notice of Claim to notify
Indemnitee in writing of its election to defend such third party claim or demand
on behalf
45
of the Indemnitee. If Indemnitor elects to defend such third party claim or
demand, Indemnitee shall make available to Indemnitor and its agents and
representatives all records and other materials which are reasonably required in
the defense of such third party claim or demand and shall otherwise cooperate
with, and assist Indemnitor in the defense of, such third party claim or demand,
and so long as Indemnitor is defending such third party claim in good faith,
Indemnitee shall not pay, settle or compromise such third party claim or demand.
If Indemnitor elects to defend such third party claim or demand, Indemnitee
shall have the right to participate in the defense of such third party claim or
demand, at Indemnitee's own expense. If Indemnitor does not elect to defend
such third party claim or demand or does not defend such third party claim or
demand in good faith, Indemnitee shall have the right, in addition to any other
right or remedy it may have hereunder at Indemnitor's expense, to defend such
third party claim or demand; provided, however, that (i) Indemnitee shall not
-------- -------
have any obligation to participate in the defense of, or defend, any such third
party claim or demand; and (ii) Indemnitee's defense of or its participation in
the defense of any such third party claim or demand shall not in any way
diminish or lessen the obligations of Indemnitor under the agreements of
indemnification set forth in this Section 11.5.
(c) The term "Date of Notice of Claim" shall mean the date the
Notice of Claim is effective pursuant to Section 13.2 of this Agreement.
(d) No claim giving rise to a Notice of Claim shall be
compromised or settled except with the prior written consent of the Indemnitee,
which consent shall not be unreasonably withheld.
ARTICLE XII
TERMINATION
-----------
12.1 Grounds for Termination. This Agreement may be terminated at
-----------------------
any time prior to the Closing Date:
(a) By the mutual written agreement of the Company, the
Purchasers and the Fremont Partners;
(b) By the Fremont Partners (if the Fremont Partners are not
then in breach of any term of this Agreement), if any of the conditions set
forth in Section 10.2 of this Agreement shall have become incapable of
fulfillment, and shall not have been waived by the Fremont Partners;
46
(c) By the Company (if the Company is not then in breach of any
term of this Agreement), if the condition set forth in Section 10.3 of this
Agreement shall have become incapable of fulfillment, and shall not have been
waived by the Company;
(d) By the Purchasers (if none of the Purchasers is then in
breach of any term of this Agreement), if any of the conditions set forth in
Section 10.1 of this Agreement shall have become incapable of fulfillment, and
shall not have been waived by both Purchasers;
(e) By the Purchasers or the Fremont Partners if the Closing
shall not have occurred by February 1, 1997 (other than as a result of a breach
of this Agreement by the party seeking termination); or
(f) By the Fremont Partners, if by October 25, 1996:
(i) Bank of Boston shall not have waived the conditions to
close set forth in the first sentence of paragraph 2, the first sentence of
paragraph 10, and the requirement to receive a 7-year business plan and
financial projections set forth in paragraph 16, each under the "Closing
Conditions" set forth in the Commitment Letter, and
(ii) the Fremont Partners shall not have received the
substance of legal opinions to be delivered pursuant to Section 5.6 of the
Omnibus Agreement accompanied by a certificate executed by the Purchasers
stating that the substance of such opinions are satisfactory to each of the
parties to the Omnibus Agreement.
12.2 Effect of Termination. If this Agreement is terminated and the
---------------------
transactions contemplated hereby are not consummated as provided in Section
12.1, this Agreement shall become void and of no further force and effect,
except for (i) Section 13.1, which shall survive such termination and (ii) any
liability for any breach of a representation, warranty, covenant or agreement
contained in this Agreement causing or permitting such termination; provided,
--------
however, that neither the Company nor the Fremont Partners shall have any
-------
liability for any such breach unless such breach, together with all such
breaches of the Company and the Fremont Partners shall, in the aggregate,
constitute a Company Material Adverse Effect or a Purchaser 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 Purchaser Material Adverse Effect, any materiality qualification
47
of any individual representation, warranty, covenant or agreement contained in
this Agreement shall be disregarded.
ARTICLE XIII
MISCELLANEOUS
-------------
13.1 Costs and Expenses. Except as expressly set forth otherwise in
------------------
this Agreement, whether or not the transactions contemplated by this Agreement
are consummated, each of the parties to this Agreement shall bear its own
expenses incurred in connection with the negotiation, preparation, execution and
closing of this Agreement and the transactions provided for hereby.
Notwithstanding the foregoing, in the event that this Agreement is terminated by
the Fremont Partners pursuant to Section 12.1(b) solely as a result of the
condition set forth in Section 10.2(e) having become incapable of fulfillment,
then the Company shall, promptly following receipt of substantiating
documentation, pay to the Purchasers 50% of the actual amount of the out-of-
pocket expenses incurred and paid by the Purchasers in connection with the
transactions contemplated by this Agreement in an aggregate amount payable by
the Company not in excess of $750,000. The legal and accounting fees paid or
incurred by the Company in connection with the proposed sale of the Company and
the transactions contemplated by this Agreement shall not exceed $1,060,000.
13.2 Notices. Any notice, request, consent, approval or other
-------
document, instrument or communication that may be required or permitted to be
delivered or served hereunder shall be effective upon delivery and shall be in
writing and may be personally delivered, mailed by courier or sent by facsimile
and confirmed by telephone as follows (until notice of a change thereof is given
as provided herein):
If to the Purchasers:
Petro Holdings GP Corp.
c/o Chartwell Investments, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention:Xxxx X. Xxxxxx
Facsimile:(000) 000-0000
Telephone:(000) 000-0000
48
and to:
Mobil Long Haul Inc.
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Breed and Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, 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 Fremont Partners:
Roadside, Inc.
c/o Fremont Group, L.L.C.
00 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxxxx
Facsimile:(000) 000-0000
Telephone:(000) 000-0000;
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Four Embarcadero Center
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000;
49
If to Company:
Petro Stopping Centers, L.P.
0000 Xxxxxx Xx.
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, XX 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 Xxxxxxx
Facsimile:(000) 000-0000
Telephone:(000) 000-0000; and
Thelen, Marrin, Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention:Xxxxx X. Xxxxxx
Facsimile:(000) 000-0000
Telephone:(000) 000-0000.
13.3 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
13.4 Entire Agreement. This Agreement (including the Exhibits and
----------------
Schedules hereto, which are incorporated herein and made a part hereof),
together with the Confidentiality 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.
13.5 Captions. All headings contained in this Agreement are for
--------
convenience or reference only and shall not control or affect in any way the
meaning, construction or interpretation of any of the provisions hereof.
50
13.6 Governing Law. This Agreement shall be governed by 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.
13.7 No Third Party Rights. Nothing herein express or implied is
---------------------
intended or shall be construed to confer upon or give any Person, other than the
parties hereto, any rights or remedies under or by reason of this Agreement.
13.8 Amendment and Waiver. This 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 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 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 Agreement by another party
constitute a waiver of the responsibility or obligation itself.
13.9 Construction and Representation by Counsel. The parties hereto
------------------------------------------
represent that in the negotiation and drafting of this Agreement they have been
represented by and relied upon the advice of counsel of their choice. The
parties affirm that their counsel have had a substantial role in the drafting
and negotiation of this Agreement and, therefore, the rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any Exhibit or
Schedule attached hereto.
13.10 Further Assurances. Each party shall, at the request of the
------------------
other party, at any time and from time to time following the Closing promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to more effectively transfer, assign,
convey, grant and confirm to the Purchaser, or to perfect or record the
Purchaser's title to or interest in, or to enable the Purchaser to possess or
otherwise to confirm or carry out the provisions of and transactions
contemplated by this Agreement.
13.11 Severability. If any one or more of the provisions contained in
------------
this 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
51
parties hereto agree to use their best efforts to achieve the purpose of such
provision by a new legally valid and enforceable stipulation.
13.12 Binding Effect; No Assignment. This Agreement shall be binding
-----------------------------
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable without the prior written
consent of each of the parties hereto or by operation of law.
13.13 Company's Knowledge. For purposes of this Agreement "knowledge"
-------------------
of the Company shall mean actual knowledge of Xxxxx X. Xxxxxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxx X. Xxxxxxxx, Xx., Xxxxxx Xxxxxxx XX, Xxxxx X. Xxxxxxx, Xxxxx
Xxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxxx Xxxxxxxxxx or knowledge of such
persons of facts or circumstances that would lead a prudent person to
investigate and, more likely than not, acquire actual knowledge.
13.14 Fremont's Knowledge. For purposes of this Agreement "knowledge"
-------------------
of the Fremont partners shall mean actual knowledge of Xxxxxx Xxxxxxx XX, Xxxxx
X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxx or knowledge
of such persons of facts or circumstances that would lead a prudent person to
investigate and, more likely than not, acquire actual knowledge.
13.15 Specific Performance. Each of the parties hereto agrees that
--------------------
either other of the 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
Agreement to specific performance of the obligations of the other parties under
this Agreement.
13.16 Transactions Provided Hereby. The phrase "consummation of the
----------------------------
transactions contemplated hereby" and words of similar import shall mean the
closing of the purchase and sale of the Purchaser Interests pursuant to Section
1.2 of this Agreement and the consummation of the other transactions expressly
provided for by this Agreement and shall not include (i) the closing under the
Omnibus Agreement or any of the other transactions referred to only therein and
not in this Agreement, (ii) the closing under the Debt Financing, or (iii) the
Consent Solicitation.
13.17 Joint and Several Liability. All representations, warranties,
---------------------------
covenants, agreements and other obligations of the Purchasers, on the one hand,
and the Fremont Partners, on the other hand, hereunder shall be joint and
several in all respects.
52
13.18 Limitation of Liability. No officer, director, stockholder,
-----------------------
partner or employee of any party to this Agreement shall have any liability to
any party arising out of this agreement or the transactions contemplated hereby.
13.19 Fremont Cap. In the event that the Closing does not occur as a
-----------
result of the breach of this Agreement by either of the Fremont Partners, the
maximum total liability for all Persons who comprise the Fremont Partners shall
not exceed $1,000,000; provided, however, that the foregoing limitation on
liability shall not apply in the event that (A) (i) the Fremont Partners
willfully breach Section 5.2 of this Agreement or (ii) the Fremont Partners
willfully breach any other material covenant of this Agreement and (B) within 12
months following the termination of this Agreement (other than a termination of
this Agreement by any of the Purchasers) the Fremont Partners or the Company
consummates a transaction that would constitute an Acquisition Proposal with a
Person with whom the Fremont Partners or the Company have had discussions
concerning an Acquisition Proposal prior to the date hereof.
53
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the parties hereto as of the date first above written.
ROADSIDE, INC. SEQUOIA VENTURES INC.
By: /s/ XXXXXX XXXXXXX XX By: /s/ XXXXXX XXXXXXX XX
-------------------------- -------------------------
Name: Xxxxxx Xxxxxxx XX Name: Xxxxxx Xxxxxxx XX
------------------------ -----------------------
Title: President Title: Managing Director
----------------------- ----------------------
PETRO STOPPING CENTERS, L.P.
By: Petro, Inc., its
General Partner
By:/s/ X. X. Xxxxxxxx
--------------------------
Title: President
By: Roadside, Inc., its
General Partner
By:/s/ XXXXXX XXXXXXX XX
---------------------------
Name: Xxxxxx Xxxxxxx XX
-------------------------
Title: President
------------------------
MOBIL LONG HAUL INC.
By:/s/ XXXX X. XXXXXXX
--------------------------
Title: President
PETRO HOLDINGS GP CORP. PETRO HOLDINGS GP CORP.
By: /s/ XXXX XXXXXX By: /s/ XXXX XXXXXX
-------------------------- --------------------------
Title: President Title: President
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