Exhibit 10.40
PURCHASE AGREEMENT
THIS PURCHASE
AGREEMENT (“Agreement”) is made and entered
into as of this 4 th day of March 2005 (the
“Effective Date”), by and among PETRO STOPPING
CENTERS, L.P. , a Delaware limited partnership
(“Petro”), and BORDENTOWN JUNCTION TRUCK STOP JOINT
VENTURE , a New Jersey joint venture
(“Seller”).
WHEREAS, Seller owns and conducts
the business known as “Bordentown Junction Truck Stop”
at 402 Rising Sun Road, Bordentown, Burlington County, New Jersey,
which includes fueling facilities, truck lube facility, a
restaurant, travel store facility and other improvements (the
“Business”);
WHEREAS, Seller has agreed to sell,
and Petro has agreed to purchase, subject to the terms and
conditions set forth herein, (i) the real property described on
Exhibit A attached hereto and made a part hereof and all
rights-of-way, easements, improvements and buildings situated
thereon or therein, including all underground storage tanks,
(collectively, the “Real Property”), (ii) the
furniture, fixtures, equipment, high-rise signage, and other
personal property owned by Seller at the Real Property, and used or
intended for use in connection with, or that are necessary to the
continued conduct of the Business, (together, the “Personal
Property”), (iii) the Inventory (as hereinafter defined), and
(iv) the “Scheduled Contracts” (as hereinafter
defined), upon the terms and conditions hereinafter set forth (the
Real Property, the Personal Property, the Inventory, and the
Scheduled Contracts, along with all other items made part of this
transaction, but not including the “Excluded Assets”
(as hereinafter defined), are sometimes referred to herein
collectively as the “Assets”);
NOW, THEREFORE, in consideration of
the mutual benefits to be derived and the representations and
warranties, conditions and promises herein contained, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
GENERAL
1.01 Purchase and Sale of the
Assets . On and subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey, transfer, assign and
deliver to Petro, and Petro agrees to purchase from Seller all of
the Assets, being more specifically: (i) the Real Property, the
Personal Property, and the Inventory, free and clear of all
mortgages, deeds of trust, liens, security interests, pledges,
leases, conditional sale contracts, claims, rights of first
refusal, options, charges, liabilities, obligations, agreements,
privileges, liberties, easements, rights of way, limitations,
reservations,
restrictions, and other encumbrances of any kind
(collectively “Liens”) other than Permitted
Encumbrances (as defined in Section 2.01 (c)) and (ii) all right,
title and interest of Seller in, to and under the contracts and
agreements described in Exhibit B attached hereto (the
“Scheduled Contracts”) and all rights (including rights
of refund and offset), privileges, deposits, claims, causes of
action and options relating or pertaining to the Scheduled
Contracts or any thereof, other than any deposits or refunds due to
Seller. Seller is not selling and Petro is not purchasing those
assets of Seller, including but not limited to, cash and accounts
receivable, as itemized and set forth in Exhibit J attached hereto,
(the “Excluded Assets”).
1.02 Purchase Price
.
(a) The purchase price to be paid by
Petro for the Assets (the “Purchase Price”) shall be as
follows:
(1) The Purchase Price of the
Assets, other than the Inventory, shall be $23,850,000.
(2) The Purchase Price of the
Inventory at the Business shall be determined as set forth in this
paragraph. For purposes of this Agreement, “Inventory”
shall mean (i) all motor fuel inventory located at a Business on
the Closing Date, and (ii) all other inventory of the Business,
including, without limitation, items held for retail sale to the
public, supplies, spare parts, tires, store items and other
resalable items, and food and perishable inventories consisting of
those items in dry storage, freezers and walk-in coolers. For
purposes of this Agreement, “Inventory” shall not
include any damaged item, any item with a passed expiration date,
or any item not saleable to the public in the ordinary course of
business (other than supplies, which are not intended for sale).
The Purchase Price for the motor fuel component of the Inventory at
the Business shall be the most recent cost to the Seller of such
motor fuel. The Purchase Price for all other components of the
Inventory shall be equal to the actual cost thereof as reflected in
the most recent invoices for such Inventory.
(b) Petro shall pay to Seller, as
part of the total Purchase Price payable at Closing, an amount
equal to ninety percent (90%) of the value of the Inventory as
shown on Seller’s most recent month end balance sheet (the
“Estimated Inventory Purchase Price”). Thereafter, in
order to determine the actual amount and cost of the Inventory
described in Section 1.02(a)(2) above as of the Effective Time of
Closing, Petro and Seller shall jointly conduct a physical
inventory (counting and pricing) of the Inventory on the day
immediately prior to the Closing, which shall include
Seller’s furnishing such documentation as is necessary to
verify the most recent cost of the motor fuel Inventory and the
actual cost of all other items of Inventory. At the time of this
joint inventory, Petro may reject any item from the inventory being
purchased which is damaged or, in the
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case of perishable items, has a
passed expiration date. The result of this joint inventory shall
yield the “Final Inventory Purchase Price.” To the
extent that the Final Inventory Purchase Price exceeds the
Estimated Inventory Purchase Price paid at Closing, Petro shall pay
the difference, by wire transfer, to Seller on or before the
fifteenth (15th) day after Closing. To the extent that the Final
Inventory Purchase Price is less than the Estimated Inventory
Purchase Price paid at Closing, Seller shall pay the difference, by
wire transfer, to Petro on or before the fifteenth (15th) day after
Closing.
(c) The Purchase Price, including
the Estimated Inventory Purchase Price, shall be payable to Seller,
at the Closing (as defined in Section 6.01) by means of wire
transfer of immediately available funds pursuant to written
instructions of Seller received by Petro at least two (2) business
days prior to the Closing Date.
1.03 Assumption of
Liabilities .
(a) The sole liabilities assumed by
Petro hereunder are (i) the obligations of Seller to perform the
Scheduled Contracts specifically set forth in Exhibit B to the
extent the Scheduled Contracts have not been performed at the
Effective Time of Closing (as defined in Section 6.01) and are not
in default; and (ii) ad valorem or similar Taxes (as defined in
paragraph (b)(2) below) to be prorated pursuant to Section
1.03(c);
(b) Except as otherwise provided in
Section 1.03(a) or elsewhere in this Agreement, Petro does not
assume or agree to pay, perform or discharge, and shall not be
responsible for, any other liabilities or obligations of Seller,
whether accrued, absolute, contingent or otherwise, including
without limitation liabilities or obligations based on, arising out
of or in connection with:
(1) Defective performance of any
Scheduled Contract by Seller or any express or implied warranty
with respect to such performance or Seller’s default
thereunder prior to the applicable Closing;
(2) Any federal, state, local or
foreign income, sales, real or personal property or other taxes,
assessments, fees, levies, imposts, duties, deductions or other
charges of any nature whatsoever (including without limitation
interest and penalties) imposed by any law, rule or regulation
(collectively, “Taxes”) which are attributable or
relating to the Business, the Real Property, or the Personal
Property for any periods ending on or before the Effective Time of
Closing, or which may be applicable because of Seller’s sale
of the Business, Real Property, or Personal Property to Petro
(collectively, “Tax Obligations”);
(3) Any lease obligations or
indebtedness of Seller, other than lease obligations assumed as
part of the Scheduled Contracts; or
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(4) Any claims by any of
Seller’s partners, directors, officers, employees or
shareholders relating to this Agreement or its performance or
consummation, or any claims by any of them relating to or arising
out of (i) their employment (including without limitation any
modification or termination thereof) by Seller, (ii) any employment
contract, or (iii) any pension or other benefit liabilities of
Seller.
(c) Seller and Petro shall each pay
its respective pro rata portion of all 2005 ad valorem or similar
Taxes on the Real Property and Personal Property. Seller shall pay
to Petro at the Closing such estimated ad valorem or similar Taxes
for the current year (based on prior year’s Taxes) pro rated
to the date of the Closing. Seller shall make available to Petro
copies of all statements and assessments reflecting such prior
year’s Taxes. Petro shall pay such sums to the appropriate
taxing authorities when due, prior to becoming delinquent. Petro
shall promptly forward to Seller after receipt by Petro copies of
all 2005 Tax assessments on the Real Property and Personal
Property. If the 2005 Taxes shall be readjusted such that the
amounts payable are greater than the prior year’s Taxes,
Seller shall pay its pro rata share of any difference promptly upon
notice of such Taxes having been paid by Petro. If the 2005 Taxes
shall be readjusted such that the amounts payable are less than the
prior year’s Taxes, Petro shall refund to Seller its pro rata
share of such reduction.
(d) Seller shall remit to the proper
taxing entity all real estate transfer taxes assessed by reason of
the purchase and sale of the Real Property contemplated hereunder,
if any, to be payable at the Closing, or when otherwise due (the
“Transfer Taxes”). It is specifically agreed that Petro
shall be liable for, and shall pay, the first $150,000 of these
Transfer Taxes, and that the balance of the Transfer Taxes after
the first $150,000, if any, shall be split equally between Petro
and Seller, and paid accordingly by each of them.
(e) Except as provided in Section
1.03(a) of this Agreement, Petro shall have no other liability for
Taxes payable by Seller, or any of them, (including income Taxes)
relating to the operations of the Business or the transactions
contemplated hereunder.
(f) At the Closing, Petro and Seller
shall prorate amounts due and credits on the Scheduled Contracts,
and all utilities at the Business, as well as the allocation of all
deposits to the proper agreed upon party.
1.04 Instruments of Transfer;
Further Assurances .
At the Closing, Seller and Petro
shall execute and deliver to each other (i) a Special Warranty Deed
with regard to the Real Property, (ii) a Bill of Sale with regard
to the Personal Property and Inventory, (iii) a completed General
Conveyance, Transfer and
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Assignment covering all of the Scheduled
Contracts, and (iv) an Assumption Agreement (collectively the
“Conveyance Documents”). At the time of the Closing,
Petro and Seller shall execute all other agreements, instruments,
documents, certificates of title and certificates required by this
Agreement to be executed and delivered by or on behalf of Seller,
or Petro at or before the Closing pursuant to this Agreement (all
such other agreements, instruments, documents, certificates of
title and certificates being referred to herein as the
“Operative Documents”) and such other instruments of
transfer as shall be reasonably necessary or appropriate to vest in
Petro good and indefeasible title to all of the Assets and the
Business being purchased hereunder, and to comply with the purposes
and intent of this Agreement and such other instruments as shall be
reasonably necessary or appropriate to evidence the assignment or
termination as applicable by Seller and assumption by Petro of the
Scheduled Contracts.
1.05 Uniform Tax Treatment .
Seller and Petro agree that the allocation of consideration set
forth in Exhibit K (the “Allocation of Purchase Price”)
shall be used by them for all tax purposes, including, but not
limited to, reporting pursuant to Section 1060 of the Internal
Revenue Code of 1986, as amended. In preparing and filing IRS Form
8594 (“Asset Acquisition Statement Under Section
1060”), Seller and Petro shall report that the allocation of
consideration set forth in Exhibit K and the fair market value of
the assets to which such consideration is allocated is the same.
Prior to filing Forms 8594 with respect to the transactions
described herein, Seller and Petro shall provide to one another a
true and correct copy of the Form 8594 which each intends to file
with respect to the transactions contemplated by this Agreement.
The Allocation of Purchase Price may be amended by written
agreement of Seller and Petro prior to, or at, Closing, in which
case an amended Exhibit K will be attached hereto.
ARTICLE II.
REPRESENTATIONS AND
WARRANTIES
2.01 Representations and
Warranties of Seller . Seller represents and warrants to Petro
that the following are true and correct on and as of the date of
this Agreement and, except as a result of events in the ordinary
course of business which are not material events, will be true and
correct through the Effective Time of Closing as if made on and as
of those respective dates.
(a) Organization and Good
Standing of Seller, Authority . Seller is a joint venture duly
organized, validly existing and in good standing under the laws of
the State of its formation, and is qualified to transact business
and is in good standing as a foreign entity in the jurisdictions
where it is required to qualify in order to conduct its businesses
as presently conducted, except where the failure to be qualified
would not have a material adverse effect. Seller has the requisite
power and authority to own, lease or operate all properties and
assets now owned, leased or operated by it and to carry on its
businesses as now conducted. Seller owns all of the Assets as
recited herein.
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(b) Consents, Authorizations and
Binding Effect .
(1) Seller may execute, deliver and
perform this Agreement (including without limitation execution,
delivery and performance of the Conveyance Documents and the
Operative Documents to which it is a party) without the necessity
of any of obtaining any consent, approval, authorization or waiver
or giving any notice or otherwise, except for such consents,
approvals, authorizations, waivers and notices:
(i) which have been obtained and are
unconditional and are in full force and effect and such notices
which have been given, or
(ii) which are described in Exhibit
D hereto (the “Additional Required
Consents”).
(2) Seller has the requisite power
to enter into this Agreement and to carry out its obligations
hereunder. This Agreement has been duly authorized, executed and
delivered by Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with
its terms, except as may be limited by bankruptcy, reorganization,
fraudulent conveyance, insolvency and similar laws of general
application relating to or affecting the enforcement of rights of
creditors and subject to general principles of equity.
(3) Except as noted in Exhibit N
hereto, the execution, delivery and performance of this Agreement
by Seller does not and will not:
(i) constitute a violation of its
joint venture agreement or formation documents, as
amended,
(ii) result in any Lien against the
Real Property, the Personal Property, or the Inventory,
(iii) constitute a violation of any
statute, judgment, order, decree or regulation or rule of any court
or any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign (each of the foregoing being included in the term
“Governmental Body” as used in this Agreement)
applicable or relating to Seller, the Real Property, the Personal
Property, or the Business, or
(iv) conflict with, or constitute a
breach or default under, or give rise to any right of termination,
cancellation or acceleration under, any term or provision of any
contract, agreement, loan agreement or other agreement with any
lender,
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lease, mortgage, deed of trust,
commitment, license, franchise, authorization or any
“Permit” which, as used in this Agreement shall include
permits, authorizations, certificates, approvals, registrations,
variances, certificates of occupancy, exemptions, rights of way,
franchises, privileges, amenities, grants, ordinances, licenses and
other rights of every kind and character (a) under any (i) federal,
state, local or foreign statute, ordinance or regulation (ii)
“Order” which shall mean any order, writ, injunction,
decree, judgment or determination of any Governmental Body or (iii)
contract with any Governmental Body, or (b) granted by any
Governmental Body or any other instrument or obligation to which
Seller is a party or by which its assets are bound, or an event
which with notice, lapse of time, or both, would result in any such
conflict, breach, default or right.
(4) Without limiting the foregoing,
the execution, delivery and performance of the Conveyance Documents
and the Operative Documents, and consummation of the transactions
contemplated thereby, have been duly authorized and approved by the
partners and/or managing partner of Seller without
dissent.
(c) Title and Condition .
Seller has good, indefeasible and marketable title to the Real
Property, the Personal Property, and the Inventory, free and clear
of Liens, other than:
(1) Permitted Encumbrances which as
used in this Agreement shall mean (a) the Liens described or
referred to in Exhibit E hereto, acceptable to Petro, (b) Liens for
current Taxes and assessments not yet due and payable, including,
but not limited to, Liens for non-delinquent ad valorem taxes,
non-delinquent statutory Liens arising other than by reason of any
default on the part of Seller, (c) matters considered Permitted
Exceptions pursuant to Section 3.02 (a), and (d) such liens, minor
imperfections of title, or easements on the Real Property as do not
detract from the value thereof and do not materially interfere with
the intended use thereof by Petro, or
(2) Liens which will be released or
discharged at or prior to the Effective Time of Closing.
(3) A portion of the Real Property,
being approximately 1.1 acres, was taken under a previous
condemnation proceeding by New Jersey Department of Transportation.
The physical construction which will result from said condemnation
proceeding has not yet taken place. Seller is entitled to a payment
of an additional $17,850.00 from the New Jersey Department of
Transportation for the removal and relocation of its Route 206
Petro Sign. If, prior to Closing, Seller has relocated its
Route
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206 Petro Sign, Seller shall be
entitled to said $17,850.00 payment. If the Route 206 Petro Sign
has not been relocated prior to Closing, Seller will assign and
deliver all of its interest in said payment to Petro by means of
the General Conveyance, Transfer and Assignment.
No improvement or structure on the
Real Property encroaches on any adjacent property. No improvement
or structure on the Real Property has been damaged in any material
respects by any casualty or act of God, and not repaired, or been
subject to any condemnation proceedings except as set forth in
Section 2.01(c)(3) above.
(d) Litigation and Compliance
With Laws, Etc. There are no claims, actions, suits or
proceedings, whether in equity or at law, or governmental or
administrative investigations pending or, to the best knowledge of
Seller, threatened against Seller, the Real Property, the Business,
or any of the Assets, except as described on Exhibit F hereto.
There are no judgments outstanding and unsatisfied against Seller,
the Real Property, the Business, or any of the Assets. There are no
Tax Liens upon, pending against or, to the best knowledge of Seller
threatened against the Real Property, the Business, or any of the
Assets. Consummation of the transactions herein contemplated will
not result in the imposition or creation of any Tax Obligations on
the Real Property, the Business, or any of the Assets except for
Tax Obligations which remain the liability of Seller under Section
7.01(c) below.
(e) Instruments in Full Force and
Effect . The Scheduled Contracts are valid, binding and in full
force and effect, have not been amended or supplemented in any
manner or respect and upon assignment and assumption, with
applicable consents if necessary, will be enforceable by Petro in
accordance with their respective terms, except as may be limited by
bankruptcy, reorganization, fraudulent conveyance, insolvency and
similar laws of general application relating to or affecting the
enforcement of rights of creditors and subject to general
principles of equity. There are no defaults by Seller thereunder
and Seller knows of no defaults thereunder by any other party
thereto, and, to the best knowledge of Seller, no event has
occurred that with the lapse of time or action or inaction by any
party thereto would result in a violation thereof or a default
thereunder. Between the Effective Date of this Agreement and the
Closing, Seller may enter into additional contracts and agreements
in the ordinary course of its business, or renew any existing
contract for a term not exceeding one (1) year and any such
renewals and additional contracts will be disclosed to Petro by
Seller, in writing, at least three (3) days prior to the Closing,
said disclosure including a copy of each such additional contract
or renewed contract. Petro shall retain the right to reject any
such additional contract (but not any renewed contract) at the
Closing, if said additional contract (i) has a value (cost or
benefit) to the Business in excess of $500 per month during the
term of said contract, or (ii) has a term in excess of twelve (12)
months following the Closing Date, in which case such rejected
additional contract shall not become part of the Scheduled
Contracts, shall not be assigned to Petro, and shall not be assumed
by
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Petro. All such renewed contracts,
and all such additional contracts not so rejected by Petro at
Closing shall become part of the Scheduled Contracts, shall be
assigned to Petro and shall be assumed by Petro as part of this
transaction except as noted in the list of Scheduled Contracts.
None of the rights under the Scheduled Contracts will be impaired
by the consummation of the transactions contemplated by this
Agreement, and all such rights will inure to and be enforceable by
Petro after the Effective Time of Closing without the
authorization, consent, approval, Permit or licenses of, or filing
with, any other Person. The term “Person” as used
herein shall mean an individual, partnership, joint venture,
corporation, bank, trust, unincorporated organization or a
Governmental Body.
(f) Real Property
.
(1) Seller has and will convey to
Petro good, indefeasible and marketable title to the Real Property,
free and clear of any and all Liens (including without limitation
all leases, licenses, restrictions, restrictive covenants and
rights-of-way) other than Permitted Encumbrances.
(2) To Seller’s knowledge, the
Real Property does not violate in any material respect any
provisions of any applicable building code, fire, health or safety
regulations, or other governmental ordinances, orders or
regulations.
(3) There are no parties in
possession of any portion of the Real Property as lessees, tenants
at sufferance or trespassers, except as disclosed in Exhibit G
hereto.
(4) There is no pending or, to
Seller’s knowledge, threatened condemnation or similar
proceeding or assessment affecting the Real Property, or any part
thereof, nor to the best knowledge and belief of Seller is any such
proceeding or assessment contemplated by any Governmental
Body.
(5) Seller has complied in all
material respects with all applicable laws, ordinances,
regulations, statutes, rules and restrictions relating to the Real
Property and any part thereof. Seller has applied for and has
obtained, governmental approval and permits, to construct on the
Real Property certain improvements to expand its main building,
erect an additional retail building, install a gasoline fuel island
with canopy, and for additional parking as more fully detailed in
Exhibit L. The terms for the approval of the completion of said
improvements are attached hereto in Exhibit M. To the extent
assignable at Closing, Seller will assign its full interest in the
approvals and permits described in Exhibits L and M to Petro by
means of the General Conveyance, Transfer and
Assignment.
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(6) There are water, sewer, gas,
phone and electricity lines to the Real Property which are
available to Petro and which are sufficient for service on the Real
Property and for the conduct of the Business. Seller shall retain
its primary telephone and fax numbers for the Business 609-291-1154
and 609-291-0199 but shall assign all other telephone numbers used
by the Business to Petro at Closing.
(7) Except for the possible access
interference noted in Section 2.01(c)(3) above, the Real Property
has full and free access to and from public highways, streets or
roads and, to the best knowledge and belief of Seller there is no
pending or threatened proceeding by any Governmental Body which
would impair or result in the termination of such
access.
(g) Material Contracts . The
Scheduled Contracts listed in Exhibit B hereto are all of the
contracts, leases, agreements and instruments material to the
conduct of the Businesses or requiring the performance by Seller of
any material obligations (“material” as used in this
paragraph to describe these contracts shall have the value and time
limitations as set forth in Section 2.01(e) above) of Seller after
the date hereof. There are no existing defaults by Seller, or to
the best knowledge of Seller other parties, under any of the
contracts, leases, agreements and instruments listed on Exhibit B
hereto.
(h) Personal Property and
Inventory .
(1) Seller has and will convey to
Petro good, indefeasible and marketable title to the Personal
Property and Inventory, free and clear of any Liens (including
without limitation all leases, licenses, and restrictions) other
than Permitted Encumbrances.
(2) Seller has complied in all
material respects with all applicable laws, ordinances,
regulations, statutes, rules and restrictions relating to the
Personal Property and Inventory and any part thereof.
(3) The Personal Property material
to the Business is in good commercial condition. The Inventory is
saleable in the ordinary course of business.
(i) Environmental Matters .
Without in any manner limiting any other representations and
warranties set forth in this Agreement or in the Conveyance
Documents or Operative Documents, except as disclosed to Petro by
Seller as set forth in Exhibit H hereto:
(1) To the actual knowledge of
Seller, there are no operations currently or previously conducted
on or conditions of the Real Property which constitute or would
cause a violation of, non-compliance with or
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liability under, any Environmental
Laws in any way relating to the Real Property as of and after the
Closing, and
(2) without in any manner limiting
the generality of (1) above, to the actual knowledge of
Seller:
(i) except in accordance with
Environmental Laws (including, without limitation, the obtaining of
necessary Permits), no Materials of Environmental Concern (as
defined below) have been used, generated, manufactured, stored or
treated, or disposed of, landfilled or in any other way Released
(and no Release is threatened), on, under or about the Real
Property or transported to or therefrom, and to the actual
knowledge of Seller, no Materials of Environmental Concern have
been generated, manufactured, stored or treated or disposed of,
landfilled or in any other way Released (and no Release is
threatened), on, under, about or from any property adjacent to the
Real Property,
(ii) Seller is not now, and will not
be as of the Closing, as a result of the operation or condition of
the Business prior to or at the Closing, subject to any (a)
contingent liability in connection with any Release or threatened
Release of any Materials of Environmental Concern into the
environment whether on, under or off the Real Property or (b)
removal, reclamation or remediation requirements under
Environmental Laws or any reporting requirements related
thereto,
(iii) Seller has not been named as a
potentially responsible party under, and the Real Property has not
been nominated or identified as a facility which is subject to an
existing or potential claim under, the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. § 9601, et. seq. (“CERCLA”) or comparable
Environmental Laws, and the Real Property is not subject to any
Lien arising under Environmental Laws,
(iv) Seller has all environmental
permits and environmental and pollution control equipment necessary
for compliance in all material respects with all Environmental
Laws, including the current requirements thereof (including,
without limitation, all applicable Permits) and operation of the
Business as presently conducted,
(v) no Materials of Environmental
Concern have been placed, deposited or buried on the Real Property
except for motor fuels stored in compliance with Environmental
Laws,
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(vi) there are no underground
storage tanks, pits, sumps or impoundments (as defined under
Environmental Laws) located on or under the Real Property, except
as disclosed in Exhibit I hereto,
(vii) Seller has not been named as a
potentially responsible party in connection with any off-site
locations to which Materials of Environmental Concern have been
sent by or on behalf of Seller for disposal, storage, treatment,
recycling, or processing and none of the off-site locations where
Materials of Environmental Concern from the Real Property or from
any of the Assets of Seller have been stored, treated, recycled,
disposed of or Released, has been nominated or identified as a
facility which is subject to an existing or potential claim under
CERCLA, the Resource Conservation and Recovery Act, as amended, 42
U.S.C. § § 6921-69396 (“RCRA”) corrective
action requirements or comparable Environmental Laws, or for
violation or revocation of any of its RCRA or other storage,
transfer, treatment, recycling or disposal permits,
(viii) Seller has not received any
notices of any Release or threatened Release of Materials of
Environmental Concern, or of any violation of, noncompliance with,
or remedial obligation under, Environmental Laws, relating to the
ownership, use, maintenance, operation of, or conduct of the
Business or Real Property nor is there any basis for any of the
foregoing,
(ix) there are no notices of
violations, notices of potential liability, writs, injunctions,
decrees, orders or judgments outstanding, or lawsuits, claims,
proceedings or investigations pending or, to the best knowledge of
Seller, threatened, relating to the ownership, lease, use,
maintenance, operation of, or conduct of the Business or Real
Property under or in respect of any Environmental Laws, nor is
there any basis for any of the foregoing,
(x) Seller has provided or made
available to Petro all files and records in the possession or
control of Seller and relating to the Real Property and the
Business, as to (i) compliance of prior and current activities on,
or related to the Real Property with Environmental Laws (including
environmental monitoring data, investigations, studies and
reports); (ii) environmental audit reports; (iii) spill
notifications; (iv) notices and correspondence to and from
Governmental Bodies; (v) permits (which permits, if any, Seller
shall use its best efforts to cause to be transferred to Petro
on
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or after the Closing), approvals,
registration, authorizations, licenses, and applications therefor;
(vi) hazardous waste manifests; (vii) emergency and safety
procedures; (viii) inspection reports; (ix) reclamation,
contingency and closure plans; and (x) other documents or materials
pertaining to compliance with Environmental Laws, permitting or
possible environmental claims or liabilities.
As used in this Agreement, (i) “Materials
of Environmental Concern” shall mean any solid or hazardous
waste, hazardous substance, pollutant, contaminant, oil, petroleum
product, commercial product or other substance (x) which is listed,
regulated or designated as toxic or hazardous (or words of similar
meaning and regulatory effect), or with respect to which remedial,
removal or reclamation obligations may be imposed, under any
Environmental Laws or (y) exposure to which may pose a health or
safety hazard, (ii) “Environmental Laws” means any
applicable federal, state, or local laws, rules, or regulations,
common law or strict liability provisions, and any judicial or
administrative interpretations thereof, including any judicial or
administrative orders or judgments, relating to health, safety,
industrial hygiene, pollution or environmental matters enacted,
promulgated or in effect as of the Closing Date and (iii)
“Release” means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or dispersing into the environment (including the
abandonment or discarding of barrels, containers, and other closed
receptacles containing any Materials of Environmental
Concern.
(j) Disclosures .
(1) No representation or warranty of
Seller contained in this Agreement contains any untrue statement.
No representation or warranty of Seller contained in this Agreement
omits to state a material fact necessary to make the statements
herein or therein, in light of the circumstances under which they
were made, not misleading.
(2) Seller, for itself and on behalf
of its affiliates, warrants and agrees that neither Seller nor any
affiliate of Seller will sell land or other assets to a competitor
of Petro to be used in the establishment of a truck stop or travel
plaza within a 50 mile radius of the Business within 100 months
following Closing.
2.02 Representations and
Warranties of Petro . Petro represents and warrants to Seller
that the following are true and correct on and as of the date of
this Agreement and will be true and correct through the Effective
Time of Closing as if made on and as of such dates:
(a) Petro is a limited partnership
duly organized, validly existing and in good standing under the
laws of the State of Delaware and is qualified to transact business
and is in good standing as a foreign limited partnership in
the
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jurisdictions where it is required
to qualify in order to conduct its businesses as presently
conducted except where the failure to be qualified would not have a
material adverse effect. Petro has the partnership power and
authority to own, lease or operate all properties and assets now
owned, leased or operated by it and to carry on its businesses as
now conducted.
(b) Petro may execute, deliver and
perform this Agreement without the necessity of Petro obtaining any
consents, approvals, authorizations or waivers or giving any
notices or otherwise, except such consents, approvals,
authorizations, waivers and notices which have been obtained and
are unconditional and are in full force and effect and such notices
which have been given.
(c) The execution, delivery and
performance of this Agreement do not and will not:
(1) constitute a violation of the
Partnership Certificate or Partnership Agreement of
Petro,
(2) constitute a violation of any
sta
