EXHIBIT 10.3
BLYTHE, CALIFORNIA PURCHASE AGREEMENT
dated as of
November 23, 1992
between
NATIONAL AUTO/TRUCKSTOPS, INC.
and
UNION OIL COMPANY OF CALIFORNIA
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................ 1
1.1 Definitions............................................... 1
ARTICLE II TRANSFER OF ASSETS....................................... 5
2.2 Assumption of Liabilities................................. 6
2.3 Purchase Price for Acquisition Assets..................... 6
2.4 Closing................................................... 6
2.5 Allocation of Purchase Price.............................. 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER................ 6
3.1 Corporate Existence and Power............................. 7
3.2 Corporate Authorization................................... 7
3.3 Governmental Authorization................................ 7
3.4 Non-Contravention......................................... 8
3.5 No Brokerage Fees......................................... 8
3.6 Properties; Leases; Tangible Assets....................... 8
3.7 Litigation................................................ 11
3.8 Permits; Required Consents................................ 11
3.9 Compliance with Laws...................................... 11
3.10 Material Disclosures...................................... 12
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER............. 12
4.1 Organization and Existence................................ 12
4.2 Corporate Authorization................................... 12
4.3 Governmental Authorization................................ 12
4.4 Non-Contravention......................................... 13
4.5 No Brokerage Fees......................................... 13
4.6 Litigation................................................ 14
4.7 Material Disclosures...................................... 14
ARTICLE V CERTAIN UNDERSTANDINGS AND
AGREEMENTS OF THE PARTIES................................ 14
5.1 Ownership of the Facility................................. 14
5.2 Access to Records and Files............................... 15
5.3 Public Announcements...................................... 16
5.4 No Shopping............................................... 16
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5.5 Further Assurances........................................ 17
5.6 Cooperation in Litigation................................. 17
5.7 Certain Filings........................................... 17
5.8 Title Insurance; Encumbrances............................. 18
5.9 Additional Agreements..................................... 18
5.10 Cooperation with Respect to Financing..................... 18
5.11 PMPA...................................................... 19
ARTICLE VI CONDITIONS TO CLOSING.................................... 19
6.1 Conditions to Obligations of Each Party................... 19
6.2 Conditions to Obligations of Buyer........................ 20
6.3 Conditions to Obligations of Seller....................... 22
ARTICLE VII INDEMNIFICATION......................................... 23
7.1 Indemnification by Seller................................. 23
7.2 Indemnification by Buyer.................................. 23
7.3 Defense of Claims......................................... 24
7.4 Survival of Representations and Warranties................ 25
ARTICLE VIII TERMINATION............................................ 26
8.1 Grounds for Termination................................... 26
8.2 Effect of Termination..................................... 28
ARTICLE IX MISCELLANEOUS............................................ 28
9.1 Notices................................................... 28
9.2 Amendments; Waivers; Remedies............................. 29
9.3 Expenses.................................................. 30
9.4 Successors and Assigns.................................... 30
9.5 Governing Law............................................. 30
9.6 Counterparts; Effectiveness............................... 30
9.7 Entire Agreement.......................................... 30
9.8 Jurisdiction.............................................. 31
9.9 Captions.................................................. 31
9.10 Severability.............................................. 31
9.11 Construction.............................................. 31
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (the "Agreement") is entered into as of
November 23, 1992 by and between Union Oil Company of California, a California
corporation ("Seller"), and National Auto/Truckstops, Inc., a Delaware
corporation (together with its successors and assigns,
"Buyer").
W I T N E S S E T H :
WHEREAS, Seller leases certain real property as more particularly
described in Section 1 of the Disclosure Schedule attached hereto (the
"Facility");
WHEREAS, Seller subleases the Facility to an independent operator
(the "Facility Operator") who operates the Facility as a truckstop as part of
Seller's auto/truckstop network (the "A/TS Network"); and
WHEREAS, Seller desires to sell its interest in the Facility to
Buyer, including substantially all of the assets relating thereto, and Buyer
desires to acquire such interest in the Facility and such assets on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, and the mutual
representations, warranties, covenants and agreements hereinafter set forth, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
(a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such other Person.
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"Applicable Law" means, with respect to any Person, any domestic or
foreign, federal, state or local statute, law, ordinance, rule, regulation,
order, writ, injunction, directive, judgment, decree or other requirement of any
Governmental Authority applicable to such Person or any of its Affiliates or any
of their respective properties, assets, officers, directors, employees,
consultants or agents (in connection with such officer's, director's,
employee's, consultant's or agent's activities on behalf of such Person or any
of its Affiliates).
"Assigned Lease Rights" means all of Seller's rights under the
Lease, including, without limitation, the right to receive Fixed Rent (as
defined in the Lease); provided, however, that Assigned Lease Rights shall not
include Excluded Lease Rights.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Los Angeles, California are authorized or
required by law to close.
"Damages" means all demands, claims, actions or causes of action,
assessments, losses, damages, costs, expenses, liabilities, judgments, awards,
fines, sanctions, penalties, and charges, and amounts paid or payable in
settlement, including (y) interest on cash disbursements in respect of any of
the foregoing at the lesser of Reference Rate in effect from time to time and
the maximum interest rate permitted by law, compounded quarterly, from the date
each such cash disbursement is made until the Person incurring the same shall
have been indemnified in respect thereof and (z) reasonable costs, fees and
expenses of attorneys, experts, accountants, appraisers, consultants, witnesses,
investigators and any other agents of such Person.
"Disclosure Schedule" means the Disclosure Schedule attached hereto.
"Effective Time" means 1:01 a.m. Eastern Standard Time on the
Closing Date.
"Environmental Laws" means federal, state, local and foreign laws,
principles of foreign law, regulations and codes, as well as orders, decrees,
judgments or injunctions issued, promulgated, approved or entered thereunder
relating to pollution, protection of the Environment or health or safety.
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"Environmental Liabilities" means all Damages, whether direct or
indirect, known or unknown, current or potential, absolute or contingent,
matured or unmatured, past, present or future, imposed by, under or pursuant to
Environmental Laws.
"Excluded Lease Rights" means the right to receive the Gallonage
Rental and 3% of Products and Services Gross Receipts (as such terms are defined
in Exhibit B of the Lease).
"GAAP" means generally accepted accounting principles then in effect
consistently applied.
"Governmental Authority" means any foreign, domestic, federal,
territorial, state or local governmental authority, quasi-governmental
authority, instrumentality, court, government or self-regulatory organization,
commission, tribunal or organization or any regulatory, administrative or other
agency, or any political or other subdivision, department or branch of any of
the foregoing.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Lease" means the lease pursuant to which Seller leases the Facility
to the Facility Operator.
"Liability" means, with respect to any Person, any liability or
obligation of such Person of any kind, character or description, whether known
or unknown, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, secured or unsecured, joint or several, due or to become due,
vested or unvested, executory, determined, determinable or otherwise and whether
or not the same is required to be accrued on the financial statements of such
Person in accordance with GAAP.
"Lien" means, with respect to any asset, any mortgage, title defect
or objection, restrictive covenant, adverse claim, lien, pledge, charge,
security interest, hypothecation or encumbrance of any kind in respect of such
asset.
"Material Adverse Effect" means a material adverse change in or
effect on the Acquisition Assets taken as a whole.
"Permitted Liens" means (i) Liens for taxes or governmental
assessments, charges or claims the payment of
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which is not yet due, or for taxes the validity of which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP are being maintained and set aside; (ii) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen and other
similar Persons and other Liens imposed by Applicable Law incurred in the
ordinary course of business for sums not yet delinquent or being contested in
good faith and for which adequate reserves in accordance with GAAP are being
maintained and set aside; and (iii) Liens relating to deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security.
"Person" means an individual, corporation, partnership, association,
trust, estate or other entity or organization, including a Governmental
Authority.
"PMPA" means the Petroleum Marketing Practices Act.
"Proceeding" means any claim, action, suit, hearing, inquiry,
arbitration, dispute, proceeding (public or private) or governmental
investigation brought by or against any Governmental Authority or any other
Person.
"Reference Rate" means the per annum rate of interest as published
in the Wall Street Journal as the prime rate (or reference rate). Any change in
the Reference Rate shall take effect at the opening of business on the day such
published quotations change.
"Seller's knowledge" means (i) the actual knowledge of managerial or
professional personnel employed by or on behalf of Seller or any of its
Affiliates (excluding any agents and servants who are not and have never been
employees of Seller) and working in Division 61 or having management or
supervisory responsibility for the A/TS Network or (ii) such knowledge as any
such Person could reasonably be expected to have in the exercise of his or her
employment duties.
(b) Each of the following terms is defined in the section set forth
opposite such term:
TERM SECTION
---- -------
Acquisition Assets 2.1
Acquisition Proposal 5.5
Agreement Recitals
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A/TS Network Recitals
Assumed Liabilities 2.2
Buyer Recitals
Buyer Indemnitees 7.1
California Statute 3.3(a)
Closing 2.5
Closing Date 2.5
Contracts 2.1(ii)
Encumbrances 3.6(a)
Facility Recitals
Facility Operator Recitals
Indemnified Party 7.3
Indemnifying Party 7.3
Leases 3.6(d)
Offer 5.12
Offering Material 5.10(a)
Permits 3.9(a)
Permitted Encumbrances 3.6(a)
Purchase Price 2.4
Required Consents 3.9(b)
Required Contractual Consent 3.9(b)
Required Permit Approval 3.9(b)
Scheduled Contracts 3.8(a)
Seller Recitals
Seller Indemnitees 7.2
Subsequent Material Contract 5.1(a)
Termination Date 8.1(vi)
ARTICLE II
TRANSFER OF ASSETS
2.1 ASSETS TO BE CONVEYED. Upon the terms and subject to the
conditions of this Agreement and in reliance upon the representations,
warranties and agreements hereinafter set forth, Seller shall convey, transfer,
assign, sell and deliver to Buyer, and Buyer shall acquire, accept and purchase
at the Closing, free and clear of all Liens, other than Permitted Encumbrances,
all the assets set forth below (the assets set forth below are referred to
collectively as the "Acquisition Assets"):
(i) Seller's interest in all buildings, fixtures,
signage and improvements erected on the Facility and appurtenances thereto
and all of Seller's rights to real property adjacent or appurtenant
thereto;
(ii) the Assigned Lease Rights; and
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(iii) all transferable franchises, licenses, permits or
other authorizations issued or granted by any Governmental Authority that
are owned by, granted to or held or used by Seller and which relate
primarily or exclusively to the Facility.
2.2 ASSUMPTION OF LIABILITIES. From and after the Closing Date,
Buyer shall assume and agree to pay when due, perform and discharge the
executory Liabilities of Seller under the Lease (the "Assumed Liabilities").
Buyer is not assuming any Liabilities of Seller other than the Assumed
Liabilities.
2.3 PURCHASE PRICE FOR ACQUISITION ASSETS. At the Closing the
purchase price for the Acquisition Assets set forth on Schedule 2.4 (the
"Purchase Price") shall be paid by wire transfer.
2.4 CLOSING. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall occur at the law offices of ▇▇▇▇, Weiss,
Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at
10:00 a.m. on the date five (5) Business Days after all conditions to the
Closing set forth in Article VI have been satisfied or waived by the party
entitled to waive the same, or such other time, date or place as is agreed to in
writing by the parties hereto. The date on which the Closing occurs is referred
to herein as the "Closing Date".
2.5 ALLOCATION OF PURCHASE PRICE. Seller and Buyer hereby agree that
(i) the allocation for tax purposes of the Purchase Price shall be agreed to by
Buyer and Seller prior to the Closing, (ii) each party shall timely file
Internal Revenue Service Form 8594 and (iii) neither the Buyer nor the Seller
shall take a position on any report, return, information return or other
document (including any related or supporting information) filed or required to
be filed with any federal, state or local taxing authority, before any taxing
authority or in any judicial proceeding that is in any way inconsistent with
such allocation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
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3.1 CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of California, and has all corporate power and all governmental licenses,
authorizations, consents and approvals required to own and lease the Facility.
Seller is duly qualified to do business as a foreign corporation in each
jurisdiction where the character or ownership of the Acquisition Assets makes
such qualification necessary. Seller has heretofore delivered to Buyer true and
complete copies of the certificate of incorporation and bylaws of Seller as
currently in effect.
3.2 CORPORATE AUTHORIZATION. Seller has all requisite corporate
power and authority to enter into this Agreement and all other agreements to be
executed by Seller in connection herewith and to consummate the transactions
contemplated hereby and thereby. This Agreement and all other agreements to be
executed by Seller in connection herewith have been (or upon execution will have
been) duly executed and delivered by Seller, have been effectively authorized by
all necessary action, corporate or otherwise, and constitute (or upon execution
will constitute) legal, valid and binding obligations of Seller enforceable in
accordance with their respective terms (i) except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally,
including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers and (ii) subject to the limitations
imposed by general equitable principles (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
3.3 GOVERNMENTAL AUTHORIZATION.
(a) The execution, delivery and performance by Seller of this
Agreement require no action by, consent or approval of, or filing with, any
Governmental Authority other than:
(i) compliance with any applicable requirements of the
HSR Act;
(ii) compliance with any applicable requirements of the
bulk sales, bulk transfer or similar laws of the states in which the
Acquisition Assets are located; and
(iii) the Required Permit Approvals.
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(b) To Seller's knowledge, there are no facts relating to the
identity or circumstances of Seller that would prevent or materially delay
obtaining any of the authorizations referred to in Sections 3.3 or 4.3.
3.4 NON-CONTRAVENTION. The execution, delivery and performance by
Seller of this Agreement and all other agreements to be executed by Seller in
connection herewith does not and will not (a) (i) contravene or conflict with
the certificate of incorporation or bylaws of Seller; (ii) assuming compliance
with the HSR Act and California Business and Professions Code Section
20999.25(a) (the "California Statute") and receipt of the Required Consents and
each Required Permit Approval, contravene or conflict with or constitute a
violation of any provision of any Applicable Law binding upon or applicable to
Seller or any of the Acquisition Assets; and (iii) assuming compliance with the
HSR Act and receipt of the Required Contractual Consents and each Required
Permit Approval, constitute a default under, conflict with, violate, breach or
give rise to any right of termination, cancellation or acceleration of, or to a
loss of any benefit to which Seller is entitled, under any Contract or any
license, franchise, permit or similar authorization relating to any of the
Acquisition Assets or by which the Acquisition Assets may be bound, or (b)
result in the creation or imposition of any Lien on any Acquisition Asset.
3.5 NO BROKERAGE FEES. No broker or finder, other than The First
Boston Corporation, has acted for Seller or any of Seller's Affiliates in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder, other than The First Boston Corporation, is entitled to any
brokerage or finders' fees in respect of such transactions based in any way on
agreements, arrangements or understandings made by or on behalf of Seller or any
of Seller's Affiliates.
3.6 PROPERTIES; LEASES; TANGIBLE ASSETS.
(a) Seller owns and has good and marketable title to or, in
the case of leased properties or assets, a good and marketable leasehold
interest in, all of the Acquisition Assets, except those assets disposed of in
the ordinary course of business after such date. Seller holds title to each such
property and asset free and clear of all Liens, adverse claims, easements,
rights of way, servitudes, zoning or building restrictions, or any other rights
of others or other adverse interests or title or survey defects of any kind,
including leases, chattel mortgages, condi-
9
tional sales contracts, rights of first refusal (other than rights of first
refusal, if any, pursuant to the California Statute), options to purchase,
collateral security arrangements and other title or interest retention
arrangements (collectively, "Encumbrances"), except for (i) Permitted Liens,
(ii) Encumbrances set forth on Section 3.6(a) of the Disclosure Schedule and
(iii) with respect to the Facility, Encumbrances that, individually or in the
aggregate, do not and will not (A) materially interfere with the use, occupancy
or operation of the Facility as currently used, occupied and operated, (B)
materially reduce the fair market value of the Facility below the fair market
value such parcel would have had but for such Encumbrances or (C) result in any
material increase in the cost of operating, occupying or owning (or leasing) the
Facility. The Encumbrances described by clauses (i), (ii) and (iii) of the
foregoing sentence are collectively referred to herein as the "Permitted
Encumbrances."
(b) Except as disclosed in Section 3.6(b) of the Disclosure
Schedule, all tangible properties and assets included in the Acquisition Assets
(including, without limitation, the improvements that are part of the Facility)
are structurally sound and free of any material defects and are in good
operating condition and repair and are adequate for the uses to which they are
put, and none of the Acquisition Assets are in need of material replacement,
maintenance or repair, except, in the case of the improvements that are part of
the Facility, for regularly scheduled, routine maintenance and repair required
under the applicable auto/truckstop lease agreement.
(c) Section 3.6(c)(i) of the Disclosure Schedule sets forth
(by date and the parties thereto) all personal property leases and all real
property leases which relate to the Acquisition Assets (the "Leases"), and
indicating where appropriate those leases which have been recorded for tax,
protection of title or interest, or other purposes. With respect to the Leases
(including, without limitation, all exhibits thereto), there exist no defaults
by Seller and no events have occurred and no condition exists which, with the
giving of notice or lapse of time or both, would constitute such a default, and,
to Seller's knowledge, there exists no default or threatened default by any
third party thereunder, that has affected or could reasonably be expected to
affect the rights and privileges thereunder of Seller and no events have
occurred and no condition exists which, with the giving of notice or lapse of
time or both, would constitute such a default. Except as disclosed in Section
3.6(c)(ii) of the Disclosure Schedule
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and except for regularly scheduled, routine maintenance and repair, Seller has
performed all of its cleaning, maintenance and replacement responsibilities set
forth in the Leases (including all exhibits thereto), and, to Seller's
knowledge, each third party to such Leases has performed all of its cleaning,
maintenance and replacement responsibilities set forth in the Leases (including
all exhibits thereto). Except as disclosed in Section 3.6(c)(iii) of the
Disclosure Schedule, all Leases to which Seller is a party or by which it is
bound may be assigned, transferred and conveyed to Buyer without default,
penalty or modification thereof.
(d) To Seller's knowledge, except as disclosed in Section
3.6(d) of the Disclosure Schedule, with respect to the Facility, there exists no
(i) applicable restrictive covenant, zoning ordinance, building code, use or
occupancy restriction, land use restriction, fire, subdivision, health or other
law applicable to real property, or any violation of any such ordinance, code,
restriction or law, or any condemnation action or proceeding of any Governmental
Authority, that detracts or can reasonably be expected to detract in any
material respect from the use or value of such property in the business of the
A/TS Network or will interfere with the transferability thereof to Buyer
pursuant hereto or (ii) non-conforming uses or zoning or code exceptions that
currently permit the non-conforming use of the Facility.
(e) Except as disclosed in Section 3.6(e) of the Disclosure
Schedule, no condemnation proceeding is pending, or to Seller's knowledge
threatened, which would preclude or impair the use of the Facility for the uses
for which it is currently being used or is anticipated by Seller to be used. To
Seller's knowledge there is no existing or proposed plan to widen, modify or
realign any street or highway contiguous to the Facility which would materially
reduce the size or value of the Facility.
(f) The Facility has direct access to a public street or
highway and such access is adequate for the use of such parcel in the business
of the A/TS Network. The Facility is not dependent for its access, operation or
utility on any land, building or other improvement not included in the Facility.
Notwithstanding the foregoing, Seller makes no representation that title
insurance policies with so-called "access endorsements" are obtainable with
respect to the Facility.
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3.7 LITIGATION. Except as set forth in Section 3.7 of the Disclosure
Schedule, there are no Proceedings pending or, to Seller's knowledge,
threatened, against Seller, which seek to enjoin or rescind the transactions
contemplated by this Agreement or otherwise prevent Seller from complying with
the terms and provisions of this Agreement.
3.8 PERMITS; REQUIRED CONSENTS.
(a) Section 3.8(a) of the Disclosure Schedule sets forth all
material approvals, registrations, authorizations, certificates, certificates of
occupancy, consents, licenses, orders and permits or other similar
authorizations of or with any Governmental Authority (and all other Persons)
necessary for the ownership of the Acquisition Assets (the "Permits"), including
(i) all such permits and approvals relating to the transportation, storage or
sale of any petroleum product or the discharge of by-products or waste material
into a public waste discharge system and (ii) all registrations, approvals and
exemptions required under any state or federal franchise, business opportunity
or similar law.
(b) Section 3.8(b) of the Disclosure Schedule lists each
governmental or other registration, filing, application, notice, transfer,
consent, approval, order, qualification and waiver (each, a "Required Permit
Approval") required under Applicable Law to be obtained by Seller or Buyer by
virtue of the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby to avoid the loss of any Permit. Except as
set forth in Section 3.8(b) of the Disclosure Schedule, each Permit is valid and
in full force and effect in all material respects and, assuming the related
Required Permit Approvals have been obtained prior to the Closing Date, are, or
will be, transferable by Seller, and none of the Permits will, assuming the
related Required Permit Approvals have been obtained prior to the Closing Date,
be terminated or become terminable or impaired in any respect as a result of the
transactions contemplated hereby.
3.9 COMPLIANCE WITH LAWS. Except as set forth in Section 3.9 of the
Disclosure Schedule, the ownership and leasing of the Facility have not violated
or infringed, and do not violate or infringe, any Applicable Law, or any order,
writ, injunction or decree of any Governmental Authority in any material
respect. Seller has not received, and has no knowledge of, any notification from
any Governmental Authority having jurisdiction over the Acquisition
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Assets affecting or purporting to restrict the Acquisition Assets or alleging
any violation of Applicable Law relating to the foregoing.
3.10 MATERIAL DISCLOSURES. No statement, representation or warranty
made by Seller in this Agreement, in any Exhibit hereto or in the Disclosure
Schedule, or in any certificate, statement, list, schedule or other document
furnished or to be furnished to Buyer hereunder, contains or will contain any
untrue statement of a material fact, or fails or will fail to state a material
fact necessary to make the statements contained herein or therein, in light of
the circumstances in which they are made, not materially misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that:
4.1 ORGANIZATION AND EXISTENCE. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware.
4.2 CORPORATE AUTHORIZATION. Buyer has all requisite corporate power
and authority to enter into this Agreement and all other agreements to be
executed by Buyer in connection herewith and to consummate the transactions
contemplated hereby and thereby. This Agreement and all other agreements herein
contemplated to be executed in connection herewith have been (or upon execution
will have been) duly executed and delivered by Buyer, have been effectively
authorized by all necessary corporate action, and constitute (or upon execution
will constitute) legal, valid and binding obligations of Buyer, enforceable in
accordance with their respective terms (i) except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally,
including the effect of statutory and other laws regarding fraudulent
conveyances and preferential transfers and (ii) subject to the limitations
imposed by general equitable principles (regardless whether such enforceability
is considered in a proceeding at law or in equity).
4.3 GOVERNMENTAL AUTHORIZATION. (a) The execution, delivery and
performance by Buyer of this Agreement
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require no action by, consent or approval of, or filing with, any governmental
body, agency, official or authority other than:
(i) compliance with any applicable
requirements of the HSR Act;
(ii) compliance with any applicable requirements of the
bulk sales, bulk transfer or similar laws of the states in which the
Acquisition Assets are located;
(iii) the Required Permit Approvals; and
(iv) compliance with state franchise
registration/disclosure laws.
(b) To Buyer's knowledge, there are no facts relating to the
identity or circumstances of Buyer that would prevent or materially delay any of
the authorizations referred to in Section 3.3 or 4.3.
4.4 NON-CONTRAVENTION. The execution, delivery and performance by
Buyer of this Agreement does not and will not (a)(i) contravene or conflict with
the certificate of incorporation or bylaws of Buyer, (ii) assuming compliance
with the matters referred to in Section 4.3, contravene or conflict with or
constitute a violation of any provision of any Applicable Law binding upon or
applicable to Buyer, (iii) constitute a default under or give rise to any right
of termination, cancellation or acceleration of any right or obligation of Buyer
or to a loss of any benefit to which Buyer is entitled under any provision of
any agreement, contract or other instrument binding upon Buyer or any license,
franchise, permit or other similar authorization held by Buyer, except in the
case of clauses (ii) and (iii) for any such contravention, conflict, violation,
default, termination, cancellation, acceleration or loss that would not have a
material adverse effect on the condition (financial or otherwise), business,
assets or results of operations of Buyer.
4.5 NO BROKERAGE FEES. No broker or finder has acted for Buyer in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder is entitled to any brokerage or finders' fees in respect of
such transactions based in any way on agreements, arrangements or understandings
made by or on behalf of Buyer.
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4.6 LITIGATION. There are no Proceedings pending or, to Buyer's
knowledge, threatened, against Buyer which seek to enjoin or rescind the
transactions contemplated by this Agreement or otherwise prevent Buyer from
complying with the terms and provisions of this Agreement.
4.7 MATERIAL DISCLOSURES. No statement, representation or warranty
made by Buyer in this Agreement, in any exhibit hereto, or in any certificate,
statement, list, schedule or other document furnished or to be furnished by
Buyer hereunder, contains or will contain any untrue statement of material fact,
or fails or will fail to state a material fact necessary to make the statements
contained herein or therein, in light of the circumstances in which they are
made, not materially misleading.
4.8 NO KNOWLEDGE OF BREACHES. At the date hereof Buyer has no
knowledge of any breach of any representation or covenant of Seller contained
herein.
ARTICLE V
CERTAIN UNDERSTANDINGS AND
AGREEMENTS OF THE PARTIES
5.1 OWNERSHIP OF THE FACILITY. From the date
hereof until the Closing Date:
(a) without Buyer's prior written consent, Seller will not and
will not agree to, except as set forth in Section 5.11 or Section 5.12, sell,
assign, lease, license, transfer or otherwise dispose of, or mortgage, pledge or
encumber (other than with Permitted Liens), the Facility or amend, terminate or
renew the lease thereof;
(b) Seller will:
(i) (1) maintain the Acquisition
Assets in the ordinary course of business in good operating order and
condition, reasonable wear and tear excepted, and (2) upon any damage,
destruction or loss to any of the Acquisition Assets, apply any and all
insurance proceeds received with respect thereto to the prompt repair,
replacement and restoration thereof to the condition of the Acquisition
Assets before such event;
15
(ii) use its best efforts (other
than paying consideration) to obtain, prior to the
Closing Date, all Required Permit Approvals;
(iii) take all actions reasonably
necessary to be in compliance with, and to maintain the
effectiveness of, all Permits;
(iv) notify Buyer in writing of any
action, event, condition or circumstance, or group of actions, events,
conditions or circumstances, relating to Seller or, to Seller's knowledge,
any other Person, that results in, or could result in, a Material Adverse
Effect, such notification to be provided to Buyer by Seller promptly after
the occurrence of any such action, event, condition or circumstance, or
group thereof;
(v) notify Buyer in writing of the
commencement of any material Proceeding by or against Seller relating to
any of the Acquisition Assets, or of Seller becoming aware of any threat,
claim, action, suit, inquiry, proceeding, notice of violation, demand
letter, subpoena, government audit or disallowance that could reasonably
be expected to result in such a Proceeding, such notification to be
provided to Buyer by Seller promptly after such commencement or Seller's
becoming aware thereof; and
(vi) notify Buyer in writing of the
occurrence of any breach by Seller of any representation or warranty, or
any covenant or agreement, contained in this Agreement, promptly after
becoming aware of any such breach.
5.2 ACCESS TO RECORDS AND FILES. Seller shall have the right for a
period of three (3) years following the Closing Date to have reasonable access,
during normal business hours and upon reasonable prior notice, to such books,
records and accounts, correspondence, and employment records and other similar
information as are transferred to Buyer pursuant to the terms of this Agreement
for the limited purposes of concluding matters relating to Seller's ownership of
the Acquisition Assets; PROVIDED, HOWEVER, that nothing set forth herein shall
obligate Buyer to provide Seller or any of its attorneys, agents, employees,
accountants or other representatives with access to any information that is
protected by the attorney-client privilege or any similar privilege. Nothing
contained herein shall impose any obligation upon Buyer to retain any such books
and records
16
beyond the retention periods delineated in the Buyer's policies relating to the
retention of books and records pertaining to similar subject matter or of a
similar type. All information obtained by Seller and its authorized
representatives pursuant to this Section 5.2 shall be kept confidential by
Seller and shall not be used by it for any purpose other than concluding matters
relating to Seller's ownership of the Acquisition Assets.
5.3 PUBLIC ANNOUNCEMENTS. The parties hereto agree that prior to the
Closing they will not make any disclosures to any Person (other than operators
and resellers in the A/TS Network) regarding the existence or contents of this
Agreement or negotiations relating to the transactions contemplated herein or
cause to be publicized in any manner whatsoever by releases or otherwise any
aspect or proposed aspect of the transactions contemplated herein without prior
written notice to and approval of, which shall not be unreasonably withheld, the
other parties hereto, unless such party reasonably concludes that such release
of information is required by Applicable Law or necessary in order to obtain
Required Consents and the parties hereto cannot reach agreement upon a mutually
acceptable form of release. Notwithstanding the foregoing, the parties hereto
may, on a confidential basis, advise their respective agents, accountants,
attorneys and prospective financing sources (including any Operators or
Resellers) with respect to the contents of this Agreement and the transactions
contemplated herein.
5.4 NO SHOPPING. Except as may be required by the California
Statute, from the date hereof until the earlier of the Closing Date or the
termination of this Agreement in accordance with its terms, Seller shall not,
and shall cause each of its Affiliates not to, directly or indirectly, through
any officer, director, employee or agent or otherwise, solicit, initiate,
encourage, participate in any negotiation or discussion or enter into any
agreement in respect of, or cooperate with (including, without limitation, by
way of furnishing any non-public information concerning, or affording access to,
the Acquisition Assets), any Acquisition Proposal (as hereinafter defined)
pertaining to the Acquisition Assets. The term "Acquisition Proposal" means any
proposal (other than a proposal by Buyer) for the acquisition of all or any
portion of the Acquisition Assets. In the event Seller receives any Acquisition
Proposal it shall promptly notify Buyer in writing of the identity of the party
making the Acquisition Proposal and, if, in the good faith judgment of Seller,
Seller determines that it can disclose the terms, conditions and circumstances
of such Acquisition Proposal to Buyer without breaching an obli-
17
gation to such party or otherwise exposing Seller to liability, Seller shall
disclose such terms, conditions and circumstances to Buyer.
5.5 FURTHER ASSURANCES. Subject to the terms and conditions of this
Agreement, each party will use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary or
desirable under Applicable Law to consummate the transactions contemplated by
this Agreement. Seller and the Buyer agree to execute and deliver such other
documents, certificates, agreements and other writings, including instruments of
transfer with respect to the Acquisition Assets, and to take such other actions
as may be necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement, provided that
Seller is not obligated to pay consideration to obtain any consents.
5.6 COOPERATION IN LITIGATION. Each party will fully cooperate with
the other in the defense or prosecution of any litigation or proceeding already
instituted or which may be instituted hereafter against or by such party
relating to or arising out of the ownership of the Acquisition Assets prior to
or after the Closing Date (other than litigation arising out of the transactions
contemplated by this Agreement).
5.7 CERTAIN FILINGS. Seller and Buyer shall cooperate with one
another in determining whether any action by or in respect of, or filing with,
any Governmental Authority or with respect to any Required Permit Approval is
required or reasonably appropriate, or any action, consent, approval or waiver
from any party to any Contract is required or reasonably appropriate, in
connection with the consummation of the transactions contemplated by this
Agreement; PROVIDED, HOWEVER, that Seller and Buyer retain the right to make any
filings required by Applicable Law. Subject to the terms and conditions of this
Agreement, Seller and Buyer shall seek to timely obtain any such actions,
consents, approvals or waivers and shall furnish all information required in
connection therewith. Without limiting the foregoing, Seller and Buyer shall
each promptly complete and file all reports and forms, and respond to all
requests or further requests for additional information, as may be required or
authorized under the HSR Act. None of the provisions in this Section 5.7
abrogate or limit in any way any of the representations, warranties and
covenants made by Seller in any of the other provisions in this Agreement.
18
5.8 TITLE INSURANCE; ENCUMBRANCES. If, at any time on or prior to
the Closing Date, Buyer obtains preliminary title reports or surveys showing, or
otherwise learns of, any Encumbrance on the Facility that is not a Permitted
Encumbrance, Seller will, immediately upon receipt of notice from Buyer of such
Encumbrance (or immediately upon Seller's obtaining actual knowledge of such
Encumbrance, whichever is sooner), use its best efforts to cause title to the
Facility to be cleared of such Encumbrance on or prior to the Closing Date;
PROVIDED, HOWEVER, that if such Encumbrance relates to or is in connection with
indebtedness, Seller covenants that it will cause the indebtedness to be paid in
full and/or take all actions necessary to remove such Encumbrance.
5.9 ADDITIONAL AGREEMENTS. At the Closing, Seller shall deliver the
officers' certificates referenced in Section 6.2(a) and (b), Buyer shall deliver
the officers' certificates referenced in Section 6.3(a) and (b), and Seller and
Buyer will enter into such additional instruments of sale, transfer, conveyance,
assignment and delivery as Buyer may reasonably request to vest in Buyer all
right, interest and title of Seller in and to the Acquisition Assets.
5.10 COOPERATION WITH RESPECT TO FINANCING.
(a) Seller will cooperate with Buyer in connection with the
obtaining of the financing referred to in Section 6.2(f) hereof and in the
preparation of one or more registration statements or offering memoranda for the
public or private offering of debt or equity securities to be issued by Buyer
(collectively, the "Offering Material") by furnishing to Buyer all information
reasonably requested by Buyer relating to such financing or the preparation of
the Offering Material.
(b) In connection with the preparation of the Offering
Material, Seller will assist in the preparation of all historical information
requested by Buyer with respect to the Acquisition Assets for inclusion in such
Offering Material, provided such information is available to Seller without
unreasonable expense, including, without limitation, (i) a description of the
business and properties of, and the legal proceedings with respect to
Acquisition Assets and (ii) financial information with respect to the
Acquisition Assets, including, without limitation, financial statements,
selected financial data and supplementary financial information, management's
discussion and analysis of financial condition and results of operations and
19
disagreements with accountants on accounting and financial
disclosure, if any.
5.11 PMPA. Prior to the Closing Date Seller agrees not to take, except
as may be required by the California Statute, any action (and Buyer agrees not
to cause Seller to take any action) (including, without limitation, failing to
renew the lease of the Facility Operator) which would give the Facility Operator
any option or other right, whether under PMPA or any other statute or
regulation, to acquire the Facility.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 (a) CONDITIONS TO OBLIGATIONS OF EACH PARTY. The obligations of
Seller and Buyer to consummate the transactions contemplated hereby shall be
subject to the fulfillment, at or prior to the Closing Date, of the following
conditions:
(b) NO ACTION OR PROCEEDING. No Proceeding shall be pending or
threatened before any Governmental Authority which presents a material risk of
the restraint or prohibition of the transactions contemplated by this Agreement
or the obtaining of material Damages or other relief in connection therewith.
(c) COMPLIANCE WITH LAW. There shall have been obtained all
permits, approvals and consents of Governmental Authorities which counsel for
Buyer or for Seller may reasonably deem necessary or appropriate so that
consummation of the transactions contemplated by this Agreement will be in
compliance with Applicable Law, including, without limitation, the permits,
approvals and consents listed in Sections 3.3 and 4.3, but excluding any
Required Permit Approvals.
(d) CALIFORNIA STATUTE. (i) The Facility Operator shall have
waived in writing its rights, if any, under the California Statute to acquire
the Facility, (ii) the time within which the Facility Operator may accept the
Offer shall have lapsed without the Facility Operator having accepted the Offer
or (iii) Seller and Buyer shall have agreed in writing subsequent to the date
hereof that the Facility Operator does not have the right under the California
Statute to acquire the Facility.
20
6.2 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer to
consummate the transactions contemplated hereby shall be, at the option of
Buyer, subject to the fulfillment, at or prior to the Closing Date, of the
following additional conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of Seller contained in this Agreement or in any other document of
Seller delivered pursuant hereto shall be true and correct in all material
respects on the Closing Date with the same effect as if made on the Closing
Date. Seller shall have delivered to Buyer a certificate to such effect signed
by the President or any Vice President and the Secretary or any Assistant
Secretary of Seller.
(b) SELLER'S PERFORMANCE. Each of the obligations of Seller to
be performed by it on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects on or before
the Closing Date. Seller shall have delivered to Buyer a certificate to such
effect signed by the President or any Vice President and the Secretary or any
Assistant Secretary of Seller.
(c) ADDITIONAL CLOSING DOCUMENTS OF SELLER. Buyer shall have
received at the Closing the following documents, dated the Closing Date:
(i) copies, certified by the Secretary or an Assistant
Secretary of Seller, of resolutions of the Board of Directors of Seller or
the Executive Committee thereof authorizing the execution, delivery and
performance of this Agreement and all other agreements, documents and
instruments relating hereto and the consummation of the transactions
contemplated hereby;
(ii) bills of sale and assignment, in form and
substance reasonably satisfactory to counsel for Buyer, duly executed by
Seller, covering the items of personal property included in the
Acquisition Assets to be transferred or assigned to Buyer at the Closing,
including the ▇▇▇▇ of Sale, Assignment and Assumption Agreement and
assignments in form and substance reasonably satisfactory to counsel for
Buyer;
(iii) a special warranty deed in proper
statutory form for recording duly executed and
21
acknowledged by Seller covering the Facility to be
conveyed to Buyer pursuant to this Agreement;
(iv) such further instruments of sale, transfer,
conveyance, assignment or delivery covering the Acquisition Assets or any
part thereof as Buyer may reasonably require to assure the full and
effective sale, transfer, conveyance, assignment or delivery to it of the
Acquisition Assets to be transferred to Buyer under this Agreement; and
(v) such other documents (duly executed
as applicable) as Buyer may reasonably request.
(d) REQUIRED PERMIT APPROVALS. All
Required Permit Approvals shall have been obtained without the imposition of any
conditions which Buyer in good faith reasonably determines would be materially
burdensome upon the Acquisition Assets or Buyer or Buyer's ownership of the
Acquisition Assets after the Closing. All such Required Permit Approvals shall
be in effect, and no Proceeding shall have been instituted or threatened by any
Governmental Authority with respect thereto as to which, in Buyer's good faith
opinion, there is a material risk of a determination that would terminate the
effectiveness of, or otherwise materially and adversely modify the terms of, any
such Permit Approval.
(e) TITLE TO THE FACILITY. Title to the Facility shall have
been cleared of any Encumbrances which are not Permitted Encumbrances
(f) FINANCING. All conditions precedent set forth in the
documents relating to the funding of any debt and equity the proceeds of which
Buyer shall use to effectuate the acquisition of the Acquisition Assets shall
have been fulfilled and the Persons committed to providing such funding shall be
prepared to do so concurrently with the Closing.
(g) MATERIAL ADVERSE EFFECT. There shall not have occurred any
event, occurrence, development or state of circumstances or facts or change in
the Acquisition Assets (including any damage, destruction or other casualty
loss) affecting any Acquisition Asset which has had or which may reasonably be
expected to have, either alone or together with all such events, occurrences,
developments, states of circumstances or facts or changes, a Material Adverse
Effect.
22
6.3 CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller
to consummate the transactions contemplated hereby shall be, at the option of
Seller, subject to the fulfillment, at or prior to the Closing Date, of the
following additional conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations
and warranties of Buyer contained in this Agreement or in any document delivered
pursuant hereto shall be true and correct in all material respects on the
Closing Date with the same effect as if made on the Closing Date. Buyer shall
have delivered to Seller a certificate to such effect, signed by the President
or any Vice President and the Secretary or any Assistant Secretary of Buyer.
(b) PERFORMANCE OF COVENANTS. Each of the obligations of Buyer
to be performed on or before the Closing Date pursuant to the terms of this
Agreement shall have been duly performed in all material respects on or before
the Closing Date. Buyer shall have delivered to Seller a certificate to such
effect signed by the President or any Vice President and the Secretary or any
Assistant Secretary of Buyer.
(c) ADDITIONAL CLOSING DOCUMENTS OF BUYER.
Seller shall have received at the Closing the following
documents, each dated the Closing Date:
(i) copies, certified by the Secretary or an Assistant
Secretary of Buyer, of resolutions of its Board of Directors or the
Executive Committee thereof authorizing the execution and delivery of this
Agreement and all other agreements, documents or instruments relating
hereto and the consummation of the transactions contemplated hereby;
(ii) confirmation of the wire transfer
to be delivered by Buyer at the Closing pursuant to
Section 2.3 hereof; and
(iii) such other closing documents (duly executed as
applicable) as Seller may reasonably request.
23
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY SELLER. Seller shall indemnify and hold
harmless Buyer, Buyer's Affiliates and their respective officers, directors,
employees and agents (collectively, the "Buyer Indemnitees") in respect of any
and all Damages reasonably incurred by any Buyer Indemnitee, whether paid or
payable, as a result of or otherwise in connection with each and all of the
following:
(a) any breach of any representation or warranty made by
Seller in this Agreement;
(b) the breach of any covenant, agreement or obligation of
Seller contained in this Agreement or any other instrument contemplated by this
Agreement;
(c) any misrepresentation contained in any statement or
certificate furnished by Seller pursuant to this Agreement or in connection with
the transactions contemplated by this Agreement;
(d) any Liability relating to the Acquisition Assets existing
or arising on or resulting from events which occurred or failed to occur prior
to the Effective Time;
(e) any failure of Buyer to obtain the protections afforded by
compliance with the notification requirements of the bulk sales, bulk transfer
and similar laws enforced in the jurisdictions in which such laws may be
applicable to either Seller or the transactions contemplated by this Agreement;
and
(f) any claim pursuant to PMPA or any similar or related
federal or state statute (including the California Statute) or regulation
(including any such claim arising out of or resulting from the execution and
delivery of this Agreement or the sale of any of the Acquisition Assets to the
Buyer) but excluding (x) any such claim to the extent to which it arises out of
or results from events which occur after the Closing Date or (y) any such claim
against Buyer which arises out of or results from actions which are alleged will
be taken by the Buyer after the Closing Date (provided, that any claim described
in this clause (y) shall not be excluded from the scope of Seller's indemnity in
this paragraph (f) if the claim against Buyer is withdrawn or dismissed or it is
determined that neither Buyer nor Seller has any Liability in respect of such
claim).
24
7.2 INDEMNIFICATION BY BUYER. Buyer shall indemnify and hold
harmless Seller, Seller's Affiliates and their respective officers, directors,
employees and agents (collectively the "Seller Indemnitees") in respect of any
and all Damages reasonably incurred by any Seller Indemnitee, whether paid or
payable, as a result of or in connection with each and all of the following:
(a) any breach of any representation or warranty made by Buyer
in this Agreement;
(b) the breach of any covenant, agreement or obligation of
Buyer contained in this Agreement or any other instrument contemplated by this
Agreement; and
(c) any misrepresentation contained in any statement or
certificate furnished by Buyer pursuant to this Agreement or in connection with
the transactions contemplated by this Agreement.
7.3 DEFENSE OF CLAIMS. Whenever any claim shall arise for
indemnification hereunder, the party entitled to indemnification (the
"Indemnified Party") shall promptly notify the other party (the "Indemnifying
Party") of the claim and, when known, the facts constituting the basis for such
claim. If the Indemnified Party fails to provide the Indemnifying Party with
such notice prior to the time at which the Indemnifying Party's ability to
defend against such claim is irrevocably prejudiced by the failure to provide
such notice, the Indemnifying Party will not be obligated to indemnify the
Indemnified Party with respect to such portion of the claim as to which the
Indemnifying Party's ability to defend has been prejudiced by such failure. The
Indemnifying Party may, upon written notice to the Indemnified Party within 30
calendar days of receipt of the notice specified in the first sentence of this
paragraph, assume the defense of any such claim if the Indemnifying Party
acknowledges to the Indemnified Party the Indemnified Party's right to indemnity
pursuant hereto in respect of the entirety of such claim. If the Indemnifying
Party assumes the defense of any such claim, the Indemnifying Party shall select
counsel reasonably acceptable to the Indemnified Party to conduct the defense of
such claim, shall take all steps necessary in the defense or settlement thereof
and shall at all times diligently and promptly pursue the resolution thereof. If
the Indemnifying Party shall have assumed the defense of any claim in accordance
with this Section 7.3, the Indemnifying Party shall be authorized to consent to
a settlement of, or the entry of any judgment arising from, any such claim,
without the prior written consent of the Indemnified Party; PROVIDED, HOWEVER,
that the Indemnifying Party shall pay or cause to be paid
25
all amounts arising out of such settlement or judgment concurrently with the
effectiveness thereof; PROVIDED, FURTHER, that the Indemnifying Party shall not
be authorized to encumber any of the assets of the Indemnified Party or to agree
to any restriction that would apply to the Indemnified Party, or to any other
Buyer or Seller Indemnitee, as applicable, or to its conduct of business or to
any other Buyer or Seller Indemnitee, as applicable, or to their conduct of
business; AND PROVIDED, FURTHER, that a condition to any such settlement shall
be a complete release of the Indemnified Party with respect to such claim. The
Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its own counsel and at its own expense. The
Indemnified Party shall, and shall cause each of its Affiliates, officers,
employees, consultants and agents and each other Buyer or Seller Indemnitee, as
applicable, to, cooperate fully with the Indemnifying Party in the defense of
any claim pursuant to this Section 7.3. If the Indemnifying Party does not
assume the defense of any claim resulting therefrom in accordance with the terms
of this Section 7.3, the Indemnified Party may defend against such claim in such
manner as it may deem appropriate, including settling such claim after giving
notice of the same to the Indemnifying Party, on such terms as the Indemnified
Party may deem appropriate.
7.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by the parties in Articles III and IV and in any instrument
or document furnished in connection herewith shall survive the Closing and any
investigation at any time made by or on behalf of the parties hereto and shall
expire on the fourth anniversary of the Closing Date, except (i) as to any
matter as to which a claim is submitted in writing to the Indemnifying Party
prior to such fourth anniversary and identified as a claim for indemnification
pursuant to this Agreement, (ii) the inaccuracy of any representation or
warranty arising out of the fraud, gross negligence or willful misconduct of
Seller or Buyer, which representation and warranty shall survive until sixty
(60) days following the expiration of the applicable statute of limitations,
including extensions thereof and (iii) any inaccuracy in the representations or
warranties set forth in Sections 3.5 and 4.5 of this Agreement, which
representations and warranties shall survive until the expiration of sixty (60)
days following the applicable statute of limitations, including extensions
thereof. The covenants of Seller and Buyer hereunder, including the
indemnification obligations of Seller under Sections 7.1(b) and (d) the
indemnification obligations of Buyer under Sections 7.2(b) and (d), shall
survive until the expiration of any applicable statute of limitations. No claim
or action for indemnity pursuant to
26
Sections 7.1 or 7.2 hereof for breach of any representation or warranty shall be
asserted or maintained by any party hereto after the expiration of such
representation or warranty pursuant to the first sentence of this Section 7.4
except for claims made in writing prior to such expiration and actions (whether
instituted before or after such expiration) based on any claim made in writing
prior to such expiration.
ARTICLE VIII
TERMINATION
8.1 GROUNDS FOR TERMINATION. This Agreement may
be terminated at any time prior to the Closing:
(i) by mutual written agreement of Seller and Buyer;
(ii) by Buyer at any time following the expiration of
ten (10) days from the date that Buyer has given written notice to Seller
of any one or more material inaccuracies or material misrepresentations in
or material breaches of the representations or warranties made by Seller
and Seller shall have failed to cure such inaccuracies and breaches in all
material respects in said ten (10) day period; PROVIDED, HOWEVER, that in
the event that within said ten (10) day period Seller has undertaken
reasonable actions to cure such inaccuracies and breaches and such actions
are being diligently pursued by Seller, no termination under this clause
(ii) shall take effect unless Seller shall have failed to cure such
inaccuracies and breaches in all material respects within forty-five (45)
days after delivery of the original notice from Buyer;
(iii) by Buyer at any time following the expiration of
ten (10) days from the date that Buyer has given written notice to Seller
of Seller's failure to perform and satisfy in any material respect any of
Seller's obligations under this Agreement and Seller shall have failed to
cure such failure in all material respects in said ten (10) day period;
PROVIDED, HOWEVER, that in the event that within said ten (10) day period
Seller has undertaken reasonable actions to cure such failure and such
actions are being diligently pursued by Seller, no termination under this
clause (iii) shall take effect unless Seller shall have failed to cure
such failure in all material respects within
27
forty-five (45) days after delivery of the original notice from Buyer;
(iv) by Seller at any time following the expiration of
ten (10) days from the date that Seller has given written notice to Buyer
of any one or more material inaccuracies or material misrepresentations in
or material breaches of the representations or warranties made by Buyer
herein and Buyer shall have failed to cure such inaccuracies and breaches
in all material respects in said ten (10) day period; PROVIDED, HOWEVER,
that in the event that within said ten (10) day period Buyer has
undertaken reasonable actions to cure such inaccuracies and breaches and
such actions are being diligently pursued by Buyer, no termination under
this clause (iv) shall take effect unless Buyer shall have failed to cure
such inaccuracies and breaches in all material respects within forty-five
(45) days after delivery of the original notice from Seller;
(v) by Seller at any time following the expiration of
ten (10) days from the date that Seller has given written notice to Buyer
of Buyer's failure to perform and satisfy in any material respect any of
Buyer's obligations under this Agreement and Buyer shall have failed to
cure such failure in all material respects in said ten (10) day period;
PROVIDED, HOWEVER, that in the event that within said ten (10) day period
Buyer has undertaken reasonable actions to cure such inaccuracies and such
actions are being diligently pursued by Buyer, no termination under this
clause (v) shall take effect unless Buyer shall have failed to cure such
inaccuracies in all material respects within forty-five (45) days after
delivery of the original notice from Seller;
(vi) by either Buyer or Seller if the Closing shall not
have been consummated by June 30, 1993, or such later date as is mutually
agreed to in writing by Buyer and Seller (the "Termination Date");
provided, however, that neither Buyer nor Seller may terminate this
Agreement pursuant to this clause (vi) if the Closing shall not have been
consummated by the Termination Date by reason of the failure of such party
to perform in all material respects any of its covenants or agreements
contained in this Agreement; or
(vii) by Buyer by written notice to Seller on or prior
to December 31, 1992 if Buyer, in its reasonable judgment, is not
satisfied with the results of its due diligence.
28
8.2 EFFECT OF TERMINATION. Subject to the next sentence, if this
Agreement is terminated in accordance with Section 8.1 as a result of a breach
by any party to this Agreement, the liability of the breaching party shall not
exceed the out-of-pocket costs of the non-breaching party in connection with
this Agreement and the transactions contemplated hereby. If this Agreement is
terminated in accordance with Section 8.1 as a result of (i) the wilful failure
of a party to fulfill a condition to the performance of the other party, (ii)
the wilful failure of a party to perform a covenant under this Agreement, or
(iii) a breach, the consequences of which are material with respect to the
Acquisition Assets, of any representation contained in this Agreement, which the
party making such representation knew was false on the date hereof, then such
breaching party shall be fully liable for any and all damages sustained or
incurred by the other party.
ARTICLE IX
MISCELLANEOUS
9.1 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) if
personally delivered, when so delivered, (ii) if mailed, two Business Days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid and addressed to the intended recipient as set forth below,
(iii) if given by telecopier, once such notice or other communication is
transmitted to the telecopier number specified below and the appropriate answer
back or telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through a reputable overnight delivery service
in circumstances to which such service guarantees next day delivery, the day
following being so sent:
If to Seller, to: Union Oil Company of California
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Copy to: Union Oil Company of California
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer, to: National Auto/Truckstops, Inc.
c/o Unocal Petroleum Products and
Chemicals Division
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Copy to: The Clipper Group, L.P.
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Either party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
9.2 AMENDMENTS; WAIVERS; REMEDIES.
(a) Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by Buyer and Seller, or in the case of a waiver, by the party
against whom the waiver is to be effective.
(b) No waiver by either party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation
30
or breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent occurrence. No single or partial
exercise by either party in exercising any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
9.3 EXPENSES. Personal and real property taxes shall be prorated as
of the Closing Date. Buyer shall file or cause to be filed all required personal
and real property reports and returns which are due on or after the Closing Date
and shall pay or cause to be paid to the Tax Authorities all such taxes
reflected on such reports or returns. All taxes resulting from the transactions
contemplated hereby, including any sales and use taxes and any real property
transfer taxes, shall be borne by the Seller. The costs of obtaining surveys and
title insurance shall be borne by Buyer. Except as otherwise provided herein,
all costs, fees and expenses incurred in connection with this Agreement shall be
paid by the party incurring the same.
9.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
9.5 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the internal laws (and not the conflict of laws) of the
State of California.
9.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
9.7 ENTIRE AGREEMENT. This Agreement (including the documents,
schedules and exhibits referred to herein which are hereby incorporated by
reference) constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements, understandings
and negotiations, both written and oral, between the parties with respect to the
subject matter of this Agreement. Neither this Agreement nor any provision
hereof is intended to confer upon any Person other than the parties hereto any
rights or remedies hereunder.
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9.8 JURISDICTION. Each of the parties hereto irrevocably submits to
the jurisdiction of any state or federal court sitting in the County of Los
Angeles, State of California, in any action or proceeding arising out of or
relating to this Agreement, agrees that all claims in respect of the action or
proceeding may be heard and determined in any such court, or to contest the
jurisdiction (in rem or in personam) or power or decision of such court over or
pertaining to the party or with respect to the subject matter in any other court
within or without the United States other than appropriate appellate courts.
Each of the parties hereto irrevocably waives any defense of inconvenient forum
to the maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of the other party hereto with
respect thereto.
9.9 CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof. All references to an Article or Section include all subparts thereof.
9.10 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any Person, place or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect only if, after
excluding the portion deemed to be unenforceable, the remaining terms shall
provide for the consummation of the transactions contemplated hereby in
substantially the same manner as originally set forth at the later of the date
this Agreement was executed or last amended.
9.11 CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against either
party. Whenever required by the context, any gender shall include any other
gender, the singular shall include the plural and the plural shall include the
singular. The headings contained in this Agreement are for reference purposes
only and shall not effect in any way the meaning or interpretation of this
Agreement. Whenever the word "including" is used in this Agreement, it shall be
deemed to mean "including, without limitation," "including, but not limited to"
or other words of similar import such that the items following the word
"including" shall be deemed to be a list by way of illustration only and shall
not be deemed to
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be an exhaustive list of applicable items in the context thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
UNION OIL COMPANY OF CALIFORNIA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: Sr. Vice President
-----------------------------
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
