AMENDMENT TO EQUITY PURCHASE AGREEMENT

 

THIS AMENDMENT (this "Amendment"), dated as of April 21, 2021, is entered into by and among (a) Buck’s, Inc., a Nebraska corporation ("Buck’s"), Chicago SPE (N), Inc., a Delaware corporation ("Chicago SPE"), ▇▇▇▇▇▇▇▇ Energy (N), LLC, a Delaware limited liability company ("▇▇▇▇▇▇▇▇ North"), ▇▇▇▇▇▇▇▇ Energy (S), LLC, a Delaware limited liability company ("▇▇▇▇▇▇▇▇ South"), Buck’s LLC of Collinsville, an Illinois limited liability company (formerly known as Buck’s, Inc. of Collinsville, an Illinois corporation) ("Collinsville"), C.T. ▇▇▇▇▇▇ Company, Inc., a Nebraska corporation ("C.T. ▇▇▇▇▇▇"), and Buck’s Intermediate Holdings, LLC, a Nebraska limited liability company ("Buck’s Intermediate") (each of the foregoing entities is a "Company", and all of the foregoing companies collectively are the "Companies"); (b) Buck’s Holdco, Inc., a Nebraska corporation (the "Seller"); (c) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") (a "Seller’s Shareholder"); and (d) ▇▇▇▇▇’▇ General Stores, Inc., an Iowa corporation (the "Purchaser").  The Companies, the Seller, the Seller’s Shareholders and the Purchaser are referred to collectively herein as the "Parties" and individually as a "Party."  Capitalized terms used in this Amendment without definition shall have the meanings ascribed thereto in the Agreement (as defined below).

 

 

 

 

NOW THEREFORE, in consideration of the premises and of the mutual agreements contained in this Amendment, and of other good and valuable consideration (the receipt and sufficiency of which are acknowledged by the Parties hereto), the Parties agree as follows:

 

 

 

 

"Closing Date Indebtedness" has the meaning set forth in Section 2.2(c)."

 

"Fuel Supply Escrow Agreement" has the meaning set forth in Section 2.3(b)(vi)."

 

"Purchase Money Escrow Agreement" has the meaning set forth in Section 2.3(b)(xv)."

 

"Seller Transaction Expenses" means expenses of Seller to be paid by disbursements from ▇▇▇▇▇▇▇ Title in an amount estimated to be approximately Ten Million Dollars ($10,000,000) which amount shall be confirmed by Seller at least two Business Days prior to Closing."

 

"▇▇▇▇▇▇▇ Title" means ▇▇▇▇▇▇▇ Title Guaranty Company."

 

"▇▇▇▇▇▇▇ Title Closing Letter" means that certain letter agreement by and among ▇▇▇▇▇▇▇ Title, Purchaser, Seller and Bank of America."

 

 

"(j) reciprocal easement agreement or other customary encumbrance on title to real property that was not granted by the Companies to secure Indebtedness of the Companies (other than those Liens with respect to which the Indebtedness secured thereby will be satisfied at or prior to Closing or following Closing pursuant to the terms of the ▇▇▇▇▇▇▇ Title Closing Letter),"

 

d.           The definition of "Purchase Money Note" as set forth in Section 1.1 of the Agreement is hereby deleted in its entirety and replaced with the following:

 

"Purchase Money Note" means the promissory note of the Purchaser in favor of Seller (or its designees) for the balance of the Purchase Price as described in Sections 2.2 (a) and (b), which promissory note shall be paid in full by wire transfer of immediately available funds to the Seller (or its designees) two (2) days after Closing, provided that, if the second day is not a Business Day, then the next Business Day thereafter, at which point the Purchase Money Note shall be returned by the Escrow Agent to the Purchaser and cancelled."

 

 

 

(i) deliver to the Escrow Agent the Fuel Supply Escrow Promissory Note as defined and payable in accordance with Section 2.5(b) below;

 

(ii) deliver to the Escrow Agent the Indemnity Escrow Promissory Note as defined and payable in accordance with Section 2.5(c) below;

 

(iii) cause to be delivered to ▇▇▇▇▇▇▇ Title on behalf of Seller (without guaranty of timely performance by the financial institutions involved) on or before 10:00 a.m. Central Time on the Closing Date, an amount equal to the sum of (A) the Closing Date Indebtedness, plus (B) the Seller Transaction Expenses; and

 

(iv) deliver to the Escrow Agent the Purchase Money Note for the balance of the Purchase Price, which promissory note shall be payable as set forth in the definition thereof.

 

 

 

"(vi)  an escrow agreement, dated as of the Closing Date, by and among Purchaser, Seller and the Escrow Agent, in mutually agreeable form (the "Fuel Supply Escrow Agreement"), which agreement shall (A) relate to the delivery, maintenance and release the Fuel Supply Escrow Amount, and (B) be duly executed by Seller;"

 

 

"(xv) An escrow agreement, dated as of the Closing Date, by and among Purchaser, Seller, and the Escrow Agent, in mutually agreeable form (the "Purchase Money Escrow Agreement"), which agreement shall (a) relate to the delivery, maintenance, payment, and return of the Purchase Money Note, and (b) be duly executed by Seller; and

 

(xvi) the ▇▇▇▇▇▇▇ Title Closing Letter, duly executed by ▇▇▇▇▇▇▇ Title, Seller and Bank of America."

 

 

"(i)  Evidence of delivery to the Escrow Agent of the Purchase Money Note;"

 

 

"The Purchase Money Escrow Agreement, duly executed by the Purchaser."

 

 

 

"(xiii) The ▇▇▇▇▇▇▇ Title Closing Letter, duly executed by Purchaser; and

 

 (xiv)  Payment to ▇▇▇▇▇▇▇ Title of the amount equal to the sum of (A) the Closing Date Indebtedness, plus (B) the Seller Transaction Expenses."

 

 

"(a)  Prior to the Closing, the Purchaser and ▇▇▇▇▇▇▇▇ shall mutually agree on the terms of the Purchase Money Escrow Agreement, the Fuel Supply Escrow Agreement, and the Indemnity Escrow Agreement, the latter of which shall include terms to implement Sections 2.5(f)-(j). The Purchaser shall pay all of the Escrow Agent’s fees and Purchaser shall bear no expenses relating to any letter of credit referenced below.

 

 (b)  At the Closing, the Purchaser shall deliver to the Escrow Agent (i) the Purchase Money Note, and (ii) a promissory note (the "Fuel Supply Escrow Promissory Note") in the amount of Twenty‑Two Million Six Hundred Seventy Five Thousand Dollars ($22,675,000) (the "Fuel Supply Escrow Amount") made payable to Seller (or its designees) and to be held by the Escrow Agent.  The Fuel Supply Escrow Amount shall be used to secure the obligations of the Seller pursuant to Section 6.9.  The Fuel Supply Escrow Promissory Note shall be held and released by the Escrow Agent pursuant to both Section 2.5(e) below and the Fuel Supply Escrow Agreement.  The Purchase Money Note shall be held and released by the Escrow Agent pursuant to both the terms set forth in the definition of Purchase Money Note and the Purchase Money Escrow Agreement. The Fuel Supply Escrow Agreement shall provide that the aggregate liability due under all Fuel Supply Contracts relating to any dealer site not previously cancelled by Purchaser shall be released by the Escrow Agent to Seller 61 days after the Closing Date and Seller shall have no further obligations under Section 6.9 with regard to such dealer sites that have not been previously cancelled.  The Fuel Supply Escrow Agreement shall also provide that the amount by which: (i) the then remaining Fuel Supply Escrow Amount exceeds (ii) the then remaining aggregate liability owed by Purchaser or its Affiliates as a result of any Fuel Supply Contract or any successor document to a Fuel Supply Contract (the “Remaining Fuel Exposure”), shall be released to the Seller from the Fuel Supply Escrow Amount on each of the 366^th day and the 731^st day following the Closing Date.  In addition, the Fuel Supply Escrow Amount, or the remaining balance thereof, shall be released to the Seller (or its designees) the last day of the thirtieth month after the Closing Date unless there are unresolved claims outstanding at such time for payment of a Termination Penalty under Section 6.9, in which event the amount in dispute shall remain in place until all such claims are resolved; provided, however, that during such thirty (30) month period, and promptly following the respective dates that Seller’s obligations under Section 6.9 with respect to each respective Fuel Supply Contract have been finally determined, Purchaser and Seller shall direct the Escrow Agent to release to Seller (or its designees) the amount equal to (i) the respective portion of the Fuel Supply Escrow Amount attributed to such Fuel Supply Contract, less (ii) the portion, if any, of the Fuel Supply Escrow Amount payable to Purchaser pursuant to Section 6.9 with respect to such Fuel Supply Contract."

 

"(e)  The Fuel Supply Escrow Promissory Note, the Purchase Money Note, and the Indemnity Escrow Promissory Note shall be paid in full by wire transfer of immediately available funds to the Escrow Agent two (2) days after Closing, provided that, if the second day is not a Business Day, then the next Business Day thereafter, at which point each of the Fuel Supply Escrow Promissory Note, the Purchase Money Note, and the Indemnity Escrow Promissory Note shall be returned to the Purchaser and cancelled."

 

 

"(n)  imposition of any Liens (other than Permitted Liens, Liens to secure Indebtedness that Seller shall cause to be removed at or in advance of Closing or, to the extent of Closing Date Indebtedness, following Closing pursuant to the terms of the ▇▇▇▇▇▇▇ Title Closing Letter, or Liens on Company Real Property otherwise shown on the title reports or commitments and unrelated to any Indebtedness) upon any of the Companies’ properties, capital stock or assets, tangible or intangible;"

 

 

 

"Such assets shall be delivered to the Purchaser on the Closing Date free and clear of all Indebtedness, other than the Remaining Indebtedness and other than the Closing Date Indebtedness to be repaid pursuant to the ▇▇▇▇▇▇▇ Title Closing Letter."

 

 

“As to the items of litigation included on Schedule III, Seller shall be entitled to receive any property tax rebate as such rebate is paid to the Companies.”

 

 

"(k) Indebtedness. All Indebtedness, other than the Remaining Indebtedness and other than the Closing Date Indebtedness to be repaid pursuant to the ▇▇▇▇▇▇▇ Title Closing Letter, of the Companies as of the Closing Date shall have been fully repaid."

 

 

 

"(iv)  The Purchaser shall not be liable to the Seller Indemnitees under Section 9.1(b)(i) until the aggregate amount of all Losses in respect of indemnification under Section 9.1(b)(i)(A) exceeds the Basket, in which event the Purchaser shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Purchaser shall be liable pursuant to Section 9.1(b)(i) shall not exceed the Cap. Notwithstanding the foregoing, the limitations set forth in this Section 9.1(b)(iv) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 5.5, any breach of a covenant in Article 6 or this Article 9, any breach of a Fundamental Representation, any breach of any obligation to remit the Purchase Price or deliver or pay in full the Purchase Money Note, the Indemnity Escrow Promissory Note, the Fuel Supply Escrow Promissory Note, or timely remit to ▇▇▇▇▇▇▇ Title the amount to be paid by Purchaser pursuant to the ▇▇▇▇▇▇▇ Title Closing Letter, or fraud on the part of the Purchaser or its Affiliates."

 

 

 

 

“Expiration Date” means 5 pm, central standard time, on August 6, 2021, or such later date as the Parties may mutually agree.  The Parties agree: (i) that no applicable waiting period under the HSR Act has terminated or expired as of April 21, 2021, and (ii) to work cooperatively to seek a May 7, 2021 Closing Date.  In any event, the Expiration Date shall be no later than the date that is 15 calendar days following the last to occur of (i) Buck’s, Inc. having filed the appropriate application with the Nebraska Secretary of State to convert that entity to a Nebraska limited liability company, or (ii) a vote by the Federal Trade Commission to approve the proposed Decision and Order and other documents already reviewed and approved by Purchaser and Seller.

 

"2.1        Purchase and Sale of Seller Equity. Upon the terms and subject to the conditions set forth in this Agreement, and on the basis of the representations, warranties, covenants and agreements contained herein, at the Closing the Seller shall sell and deliver to the Purchaser (or an Affiliate designated by the Purchaser), and the Purchaser (or an Affiliate designated by the Purchaser) shall purchase from the Seller, the Seller Equity, free and clear of all Liens on the Seller Equity."

 

 

 

“The Parties agree that the foregoing calculation, and the cost sharing arrangements elsewhere in this Section 6.5, shall result in a reduction of $708,000 to the Purchase Price which amount shall be deducted from the amount of the Purchase Money Note, and Seller agrees to pay to Purchaser, contemporaneous with the execution of this Amendment, an amount equal to $77,500 for the filing fee and the FTC expert fee.  No post-closing payment shall be due from ▇▇▇▇▇▇▇▇ or Seller as a result of the foregoing calculation or the cost sharing arrangements elsewhere in this Section 6.5.”

 

 

 

 

"As that coverage is all provided on an "occurrence" basis, Seller and ▇▇▇▇▇▇▇▇ commit to make available to the Companies, at no cost to the Companies, continuing coverage for a four year period following Closing for those claims noted in Subpart B of Schedule 3.12, except as marked with an asterisk, and for each additional covered claim that may be made for occurrences prior to Closing."

 

 

“Further notwithstanding the foregoing, neither the Basket, Cap,  nor the limitations set forth in Section 9.1(a)(iii)(C) below shall apply to Losses arising out of, with respect to, or by reason of:  any obligation to pay any judgement, settlement amount, fees, or expenses relating to the Tourlis litigation that are necessary or appropriate to permit Seller as required by this Agreement, to deliver to Purchaser, or an entity designated by Purchaser, an unencumbered fee interest in the real property, buildings, and fixtures that are the subject of that litigation; any obligation to pay taxes, fees, or any other amounts to ▇▇▇▇ County, Illinois as a result of the alleged non-payment or under payment of taxes, duties, or any other amounts owed relating to the sale or transportation of fuel, cigarettes, or other tobacco products; or any obligation to pay taxes for the returns that were to have been filed prior to the Closing but were not timely filed.”

 

 

"(i)  Any payment due pursuant to a Purchaser claim for indemnification with respect to Section 6.9 of this Agreement may be made for up to thirty months following the Closing Date and shall first be made by the Escrow Agent from the Fuel Supply Escrow Amount pursuant to the Fuel Supply Escrow Agreement as mutually agreed by Purchaser and ▇▇▇▇▇▇▇▇ or not later than thirty (30) days after the amount of the claim is finally determined by a final and non-appealable order, decree or judgment of a court of competent jurisdiction.  To the extent the amount owed by ▇▇▇▇▇▇▇▇ pursuant to Section 6.9 exceeds the Fuel Supply Escrow Amount, ▇▇▇▇▇▇▇▇ shall satisfy his obligations, within thirty (30) days after the amount of the claim is finally determined, by wire transfer of immediately available funds.

 

(ii)  Any payment due pursuant to a Purchaser claim for indemnification with respect to Section 9.1 and Section 9.9 of this Agreement shall first be made by the Escrow Agent from the Indemnity Escrow Amount pursuant to the Indemnity Escrow Agreement or, to the extent a letter of credit has been substituted pursuant to Section 2.5(f), by draw under such letter of credit, as mutually agreed by Purchaser and ▇▇▇▇▇▇▇▇ or not later than thirty (30) days after the amount of the claim is finally determined by a final and non-appealable order, decree or judgment of a court of competent jurisdiction; provided that a draw under such letter of credit shall not occur unless the amount as mutually agreed remains unpaid  three (3) days  after agreement is reached as to such amount. To the extent the amount owed by ▇▇▇▇▇▇▇▇ pursuant to Section 9.1 or Section 9.9 exceeds the Indemnity Escrow Amount, ▇▇▇▇▇▇▇▇ shall satisfy his obligations, within thirty (30) days after the amount of the claim is finally determined, by wire transfer of immediately available funds."

 

 

 

[Remainder of Page Intentionally Left Blank – Signature Pages Follow]

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first written above.

	COMPANIES:
	Buck’s, Inc.
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	Chicago SPE (N), Inc.
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	▇▇▇▇▇▇▇▇ Energy (N), LLC
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	▇▇▇▇▇▇▇▇ Energy (S), LLC.
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	Buck’s LLC of Collinsville
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	C.T. ▇▇▇▇▇▇ Company, Inc.
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	Buck’s Intermediate Holdings, LLC
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	Authorized Representative

	SELLER’S SHAREHOLDERS:
	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	SELLER:
	Buck's Holdco, Inc.
	By:	/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇

	Name:	▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
	Title:	President

[Signature Page to Amendment to Equity Purchase Agreement]

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