EXHIBIT 10.36
EXECUTION COPY
--------------------------------------------------------------------------------
PETRO STOPPING CENTERS, L.P.
and
PETRO FINANCIAL CORPORATION
and
FIRST TRUST NATIONAL ASSOCIATION,
as TRUSTEE
-------------------
SUPPLEMENTAL INDENTURE
Dated as of January 29, 1997
-------------------
$100,000,000
12 1/2% Senior Notes
due 2002
--------------------------------------------------------------------------------
SUPPLEMENTAL INDENTURE, dated as of January __, 1997, among PETRO STOPPING
CENTERS, L.P., a limited partnership duly organized and existing under the laws
of the State of Delaware (formerly PETRO PSC PROPERTIES, L.P., a Delaware
limited partnership, the "Company"), and PETRO FINANCIAL CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
("PFC," and together with the Company, the "Issuers" and each, an "Issuer"),
each having its principal office at 0000 Xxxxxx Xxxxx, Xx Xxxx, Xxxxx, to FIRST
TRUST NATIONAL ASSOCIATION, a United States banking association, Trustee (the
"Trustee").
RECITALS
--------
WHEREAS, the Issuers and the Trustee entered into an Indenture, dated as
of May 24, 1994 (the "Indenture"), pursuant to which the Company issued
$100,000,000 in principal amount of 12 1/2% Senior Notes due 2002 (the
"Securities") (capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Indenture);
WHEREAS, Section 902 of the Indenture provides that the Issuers and the
Trustee may amend or supplement the Indenture with the consent of the Holders of
not less than a majority (75% in certain instances) in aggregate principal
amount of the Outstanding Securities;
WHEREAS, the Issuers and the Trustee, desire to amend the Indenture with
the consent of the requisite number of Holders; and
WHEREAS, such consent to this Supplemental Indenture of the Holders of more
than 75% of the aggregate principal amount of the outstanding Securities has
been obtained.
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Issuers and the Trustee covenant and
agree for the benefit of each other and for the equal and proportionate benefit
of the respective Holders of the Securities as follows:
ARTICLE 1
Section 1.01. This Supplemental Indenture is supplemental to the Indenture
and does and shall be deemed to form a part of, and shall be construed in
connection with and as part of, the Indenture for any and all purposes,
including but not limited to discharge of the Indenture as provided in Article
Four of the Indenture.
Section 1.02. Effective upon the acceptance for payment of Notes by Petro
Holdings GP Corp. or the Company pursuant to the Offer to Purchase and Consent
Solicitation, dated December 19, 1996 ("Offer to Purchase and Consent
Solicitation"):
(a) the definition of "Change of Control" shall be deleted in its
entirety and replaced with the following:
"Change of Control" means the occurrence of any of the following events:
(i) for so long as the Company is organized as a general or limited
partnership, any "person" or "group" (as such terms are used in Sections 13 (d)
and 14 (d) of the Exchange Act), other than one or more Permitted Holders, is
or becomes the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of either (A) a majority of the
economic interest in the Company or (B) the power to cast a majority of the
votes on the Company's Board of Directors (which, while the Company is organized
as a general or limited partnership, consists of its Board of Control);
(ii) if at any time that the Company is organized as a corporation or other
limited liability entity, either (A) any "person" or "group" (as such terms are
used in Sections 13(d) and 14 (d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the "beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 50% of the total voting power of the Voting Interests in the Company
(including all shares that such person or group has the right to acquire,
whether such right is exercisable immediately or only after a passage of time)
or (B) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of Directors or
whose nomination for election by the stockholders of the Company was approved by
a vote of a majority of the directors of the Company then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute 66 2/3% of the Company's Board of Directors then in office;
(iii) the Company sells, conveys, transfers or leases (either in one
transaction or a series of related transactions) all or substantially all of its
assets to a Person other than a Restricted Subsidiary of the Company or a
successor corporation in which 60% or more of the voting power of the Voting
Interests is held by the Permitted Holders;
(iv) the Company sells, conveys, transfers or leases (either in one
transaction or a series of related transactions) all or substantially all of
its Capital Interests in PPSC or a successor corporation to a Person other than
a Restricted Subsidiary; or
(v) PPSC sells, conveys, transfers or leases (either in one transaction or
a series of related transactions) all or
-2-
substantially all of its assets to a Person other than the Company or a
Restricted Subsidiary of the Company.
Notwithstanding the foregoing, the execution of the Omnibus Agreement,
dated as of October 18, 1996 (the "Omnibus Agreement") by and among Xxxxx X.
Xxxxxxxx, Xx., Xxxxx X. Xxxxxxxx, Xx., JAJCO II, Inc., a Delaware corporation,
Petro, Inc., a Texas corporation, Mobil Long Haul Inc., a Delaware corporation,
Petro Holdings GP Corp., a Delaware corporation, Petro Holdings LP Corp., a
Delaware corporation and the Company and the closing of the transactions
contemplated by the Omnibus Agreement, including, but not limited to, the
amendment and restatement of the partnership agreement of the Company and
compliance by the New Partners (as defined in the Omnibus Agreement) with the
provisions of, and operation of the Company in accordance with, the Third
Amended and Restated Partnership Agreement of the Company), shall not
constitute a "Change of Control" for purposes of Section 1013 of the Indenture.
Section 1.03. Effective upon the acceptance for payment of Notes by Petro
Holdings GP Corp. or the Company pursuant to the Offer to Purchase and Consent
Solicitation:
(a) Section 1008 "Debt of the Company" shall be deleted in its entirety.
(b) Section 1009 "Debt of Restricted Subsidiaries" shall be deleted in its
entirety.
(c) Section 1010 "Restricted Payments" shall be deleted in its entirety.
(d) Section 1011 "Transactions with Affiliates" shall be deleted in its
entirety.
(e) Section 1012 "Liens" shall be deleted in its entirety.
(f) Section 1014 "Subsidiary Payment Restrictions" shall be deleted in its
entirety.
(g) Section 1016 "Guarantees by Restricted Subsidiaries" shall be deleted
in its entirety.
(h) Section 1018 "Capital Interests of Restricted Subsidiaries" shall be
deleted in its entirety.
(i) Section 1019 "Default Statements; Compliance Certificate" shall be
deleted in its entirety.
Section 1.04. Effective upon the acceptance for payment of Notes by Petro
Holdings GP Corp. or the Company pursuant to the Offer to Purchase and Consent
Solicitation:
-3-
(a) Section 405 is deleted in its entirety and replaced with the
following:
"SECTION 405. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
403 or Section 404 to the Outstanding Securities:
(1) The Issuers must irrevocably have deposited or caused to be
deposited or caused to be deposited with the Trustee (or another trustee
which satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article applicable to it) as trust funds
in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefits of the
Holders of such Securities;
(A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any
payment, money in an amount, or
(C) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the entire indebtedness in
respect of the principal of and premium, if any, and interest on such
Securities on the Stated Maturity thereof or (if the Issuers have made
irrevocable arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name and at the expense of
the Issuers) the Redemption Date thereof, as the case may be, in
accordance with the terms of this Indenture and such Securities.
As used herein, "U.S. Government Obligations" means (x)
securities that are (i) direct obligations of the United States of
America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit
-4-
obligation by the United States of America, which, in either case under
clauses (i) or (ii) above, are not callable or redeemable at the option of
the issuer thereof, and (y) depositary receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any U.S. Government Obligation which is specified
in Clause (x) above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S Government Obligation or the specific
payment of principal or interest of the U.S. Government Obligation
evidenced by such depositary receipt."
(b) Section 801 is deleted in its entirety and replaced with the
following:
"SECTION 801. Issuers May Consolidate, Etc. on Certain Terms.
The Company will not, and will not permit any Restricted Subsidiary to, in
any transaction or series of transactions, consolidate with or merge into any
other Person (other than a merger of a Restricted Subsidiary into the Company in
which the Company is the continuing entity or the merger of a Restricted
Subsidiary into or with another Restricted Subsidiary), or sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Property
and assets of the Company or such Restricted Subsidiary, as the case may be, to
any other Person, unless:
(i) in the case of a transaction to which the Company is a party,
either (a) the Company shall be the entity or (b) the entity (if other than
the Company) formed by such consolidation or into which the Company is
merged, or the Person that acquires, by sale, assignment, conveyance,
transfer, lease or disposition, all or substantially all of the Property
and assets of the Company (such corporation, partnership or Person, the
"Surviving Entity") , (1) shall be an entity organized and validly existing
under the laws of the United States of America, any political subdivision
thereof or any state thereof or the District of Columbia, (2) shall
expressly assume, by a supplemental indenture, the due and punctual payment
of all amounts due in respect of the principal of (and Premium, if any) and
interest on all the Securities (including Securities issuable upon exchange
of the Warrants) and the performance of the covenants and
-5-
obligations of the Issuers under this Indenture, and (3) if any warrants
remain outstanding, shall expressly assume, by written amendment to the
Warrant Agreement, the performance of the covenants and obligations of the
Issuers under the Warrant Agreement and the Warrants.
For all purposes of this Indenture and the Securities (including this
Section 801 and Sections 1008, 1009 and 1012), Subsidiaries of any Surviving
Entity will, upon such transaction or series of transactions, become
Subsidiaries as provided pursuant to this Indenture and all debt, and all Liens
on Property or assets, of the Surviving Entity and its Subsidiaries that was not
Debt, or were not Liens on Property or assets, of the Company and its
Subsidiaries immediately prior to such transaction or series of transactions
shall be deemed to have been Incurred upon such transaction or series of
transactions."
(c) Section 1015 is deleted in its entirety and replaced with the
following:
"SECTION 1015. Asset Sales.
The Company may not, and may not permit any of its Restricted Subsidiaries
to, directly or indirectly, make any Asset Sale unless the Company (or such
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets sold or
otherwise disposed of.
Within 12 months after any Asset Sale, the Company or the Restricted
Subsidiary, as the case may be, may at its option (a) reinvest an amount equal
to the Net Cash Proceeds (or any portion thereof) from such disposition in
Replacement Assets and/or (b) apply an amount equal to the Net Cash Proceeds (or
any remaining portion thereof) to the permanent reduction of pari passu Debt of
the Company. For purposes of clause (a) above, if the Company or the Restricted
Subsidiary, as the case may be, within such 12-month period, enters into a
binding contract for the construction of a Stopping Center, the Company or such
Restricted Subsidiary shall be deemed to have reinvested an amount equal to
the construction cost of such Stopping Center in Replacement Assets (without
regard to the timing of actual payment therefor) until the earlier of (I) the
date of actual completion and (II) the scheduled completion date provided in
such construction contract, as adjusted to give effect to delays not exceeding
in the aggregate 100% of the number of days between the date of the construction
contract and such scheduled completion date, at which time the actual
reinvestment in Replacement Assets will be determined. Any Net Cash Proceeds
from any Asset Sale that
-6-
are not used to reinvest in Replacement Assets and/or repay pari passu Debt of
the Company constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $10,000,000, the
Issuers shall make an offer to Purchase on a pro rata basis, from all Holders,
Securities in an aggregate principal amount equal to the Excess Proceeds, at a
Purchase Price in cash equal to 100% of the principal amount thereof, together
with accrued interest, if any, on such principal amount to the Purchase Date. To
the extent that any amount of Excess Proceeds remains after completion of such
offer to Purchase, the Company may use such remaining amount for general
corporate purposes, and the amount of Excess Proceeds shall be reset to zero.
ARTICLE 2
---------
Section 2.01. Except as specifically modified herein, the Indenture and the
Securities are in all respects ratified and confirmed and shall remain in full
force and effect in accordance with their terms.
Section 2.02. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
Section 2.03. The laws of the State of New York shall govern this
Supplemental Indenture without regard to principles of conflicts of law. The
Trustee and the Issuers hereby irrevocably submit to the jurisdiction of any New
York state court sitting in the Borough of Manhattan in the City of New York or
any federal court sitting in the Borough of Manhattan in The City of New York
in respect of any suit, action or proceeding arising out of or relating to this
Supplemental Indenture, and irrevocably accept for themselves and in respect of
their Property, generally and unconditionally, jurisdiction of the aforesaid
courts.
Section 2.04. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
-7-
SIGNATURES
----------
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
COMPANY:
--------
By: PETRO, Inc., a Texas Corporation
and a General Partner of the Company
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
PFC:
----
PETRO FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
TRUSTEE:
--------
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: ____________________________
Name: ____________________________
Title: ____________________________
SIGNATURES
----------
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
COMPANY:
--------
By: PETRO, Inc., a Texas Corporation
and a General Partner of the Company
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
PFC:
----
PETRO FINANCIAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
TRUSTEE:
--------
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer