EXHIBIT 2.1
RESTRUCTURING AGREEMENT
This Restructuring Agreement ("Agreement"), dated as of December 28, 1997,
among FFP Partners, L.P. (the "Partnership"), a Delaware limited partnership and
FFP Partners Management Company, Inc. ("FFPMC"), a Delaware corporation.
WHEREAS FFPMC is now the General Partner of the Partnership.
WHEREAS the Board of Directors of FFPMC and the limited partners of the
Partnership have approved a restructuring of the Partnership as a result of
which:
(a) FFP Real Estate Trust (the "REIT"), a Texas real estate investment
trust, will become the General Partner of the Partnership.
(b) FFP Operating Partners, L.P. (the "Operating Partnership"), a
Delaware limited partnership will form a new subsidiary, FFP Subsidiary Trust
(the "Subsidiary Trust"), contribute to the Subsidiary Trust substantially all
of the real property owned by the Operating Partnership (the "Real Property")
identified on Schedule 2 to this Agreement, and distribute the interests in the
Subsidiary Trust to the Partnership and FFPMC;
(c) The Partnership and FFPMC will contribute to FFP Properties,
L.P., a Delaware limited partnership ("FFP Properties") the interests in the
Subsidiary Trust;
(d) FFPMC will transfer its general partner interest in the
Partnership to the REIT in exchange for shares of stock of the REIT;
(e) The Partnership will transfer its limited partnership interest in
the Operating Partnership and certain related entities to FFP Marketing Company,
Inc. ("FFP Marketing"), a Texas corporation;
(f) FFPMC will transfer its general partner interest in the Operating
Partnership and certain related entities to FFP Operating LLC ("FFPLLC"), a
Delaware limited liability company;
(g) FFPMC will transfer all of the outstanding shares of FFPLLC to FFP
Marketing;
(h) Certain corporations, partnerships and trusts associated with the
family of John H. Harvison (collectively, the "Harvison Family") identified on
the signature page of this Agreement will surrender their limited partner
interest in the Partnership to the Partnership in exchange for limited partner
interests in FFP Properties;
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NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
covenant and agree as follows:
ARTICLE 1
DEFINITIONS
In addition to the other terms which are defined elsewhere in this
Agreement, the following terms shall have the meanings ascribed to them below:
1.1 "Agreement" means this Restructuring Agreement.
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1.2 "Closing" means the act of consummating on the Closing Date the
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actions contemplated by the terms of this Agreement.
1.3 "Closing Date" means the date on which the restructuring takes place.
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1.4 "Lease" or "Leases" means the leases, subleases, rights to use, rights
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to occupy, or licenses of any type whatsoever (whether written or verbal,
recorded or unrecorded) for any portion or all of the real property as may
currently exist under which the Operating Partnership is the landlord, grantor,
licensor, or lessee which are included in the Real Property.
1.5 "License" or "Licenses" means the governmental permits, licenses,
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certificates of occupancy, or any other document issued by any governmental
authority with respect to the Real Property.
1.6 "Real Property" means the real estate assets listed on Schedule 2
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hereto.
ARTICLE 2
THE OPERATING PARTNERSHIP'S TRANSFER
OF THE REAL PROPERTY TO THE SUBSIDIARY TRUST AND
TRANSFER OF THE SUBSIDIARY TRUST TO THE PARTNERSHIP AND FFPMC
2.1 Transfer of the Operating Partnership's Real Property to the
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Subsidiary Trust. Subject to the terms and provisions of this Agreement, the
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Operating Partnership is transferring, assigning, and conveying to the
Subsidiary Trust, its successors and assigns, as the initial capital
contribution to the Subsidiary Trust, all its right, title and interest in the
Real Property, in exchange for the issuance by the Subsidiary Trust to the
Operating Partnership of 1,000 common shares of the Subsidiary Trust.
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2.2 Assumption of Liabilities. The Subsidiary Trust is assuming, as of
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the Closing Date, the following and only the following obligations and
liabilities of the Operating Partnership with respect to the Real Property being
acquired:
(a) all obligations and liabilities accruing, arising out of, or
relating to events or occurrences happening after the Closing Date; Leases
set forth in the Real Property; and
(b) all obligations specifically undertaken by the Subsidiary Trust
pursuant to the other provisions of this Agreement.
Except as expressly provided above, the Subsidiary Trust is not assuming
any other obligation or liability of the Operating Partnership, including by way
of illustration but not limitation: (a) any obligation or liability accruing,
arising out of, or relating to any act or omission of the Operating Partnership
or any other commitments or events happening before the Closing Date, and (b)
any other obligation or liability of the Operating Partnership not expressly
assumed by the Subsidiary Trust pursuant to the terms of this Agreement.
2.3 Lease of Real Property. The Subsidiary Trust as lessor is entering
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into leases with the Operating Partnership as lessee with respect to the Real
Property.
2.4 Transfer of Subsidiary Trust to Partnership and FFPMC. Subject to the
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terms and provisions of this Agreement, the Operating Partnership is
transferring, assigning, and conveying to the Partnership and FFPMC, their
successors and assigns, as a distribution to the sole partners of the Operating
Partnership, one percent (1%) of all of its right, title, and interest in the
Subsidiary Trust to FFPMC and ninety-nine (99%) of all of its right, title, and
interest in the Subsidiary Trust to the Partnership.
ARTICLE 3
THE PARTNERSHIP'S TRANSFER OF ITS LIMITED PARTNER
INTEREST IN THE OPERATING PARTNERSHIP TO FFP MARKETING
3.1 Transfer of Limited Partner Interest in the Partnership. Pursuant to
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the terms and provisions of this Agreement the Partnership is transferring,
assigning and conveying to FFP Marketing, its successors and assigns, all its
right, title, and interest in and to its ninety-nine percent (99%) limited
partner interests in the Operating Partnership, FFP Financial Services, L.P.,
Direct Fuels, L.P., and FFP Transportation, L.L.C., and its one hundred percent
(100%) interests in Practical Tank Management, Inc. and FFP Money Order Company,
Inc.
3.2 Consideration for Transfer. Pursuant to the terms and provisions of
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this Agreement, in consideration for the transfer of such interest in the
Operating Partnership FFP Marketing is issuing and delivering to the Partnership
certificates evidencing 3,741,621 shares of stock of the FFP Marketing.
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ARTICLE 4
FFPMC'S TRANSFER OF ITS GENERAL PARTNER
INTEREST IN THE OPERATING PARTNERSHIP TO FFPLLC
4.1 Transfer of General Partner Interest in the Operating Partnership and
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Related Entities. Pursuant to the terms and provisions of this Agreement FFPMC
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is transferring, assigning and conveying to FFPLLC, its successors and assigns,
as a Capital Contribution, all the right, title, and interest in and to its one
percent (1%) general partner interest in the Operating Partnership, FFP
Financial Services, L.P. and FFP Transportation, L.L.C., and its one hundred
percent (100%) interest in Direct Fuels Management Company, Inc.
4.2 Consideration for Transfer. Pursuant to the terms and provisions of
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this Agreement, in consideration for the transfer of the one percent (1%)
interest in the Operating Partnership, FFP Financial Services, L.P. and FFP
Transportation, L.L.C., and the one hundred percent (100%) interest in Direct
Fuels Management Company, Inc., FFPLLC is issuing and delivering to FFPMC,
certificates evidencing 1,000 shares of stock of FFPLLC.
ARTICLE 5
FFPMC'S CAPITAL CONTRIBUTION TO FFP MARKETING
5.1 Capital Contribution of FFPMC. Pursuant to the terms and provisions
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of this Agreement, FFPMC is transferring, assigning and conveying to FFP
Marketing, its successors and assigns, that portion of all its right, title, and
interest in and to 1,000 shares of FFPLLC as a Capital Contribution.
5.2 Consideration for Contribution and Transfer. Pursuant to the terms
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and provisions of this Agreement, in consideration for the transfer of the 1,000
shares of FFPLLC, FFP Marketing is issuing and delivering to FFPMC certificates
evidencing 37,794 shares of stock of FFP Marketing.
ARTICLE 6
DISTRIBUTION OF MARKETING COMPANY SHARES
TO PARTNERS OF THE PARTNERSHIP
6.1 Distribution. The Partnership is conveying all of the shares of FFP
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Marketing it holds as a result of the previous transactions to its partners,
3,704,205 shares in the ratio of one share of FFP Marketing for each Unit of the
Partnership each limited partner holds at the Closing Date and 37,416 shares to
FFPMC, as the general partner of the Partnership.
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ARTICLE 7
TRANSFER TO FFP PROPERTIES BY
THE PARTNERSHIP AND FFPMC
7.1 Transfer from the Partnership and FFPMC to FFP Properties. Subject to
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the terms and provisions of this Agreement, the Partnership and FFPMC are
transferring, assigning, and conveying to FFP Properties, its successors and
assigns, all their right, title and interest in and to the Subsidiary Trust to
FFP Properties.
7.2 Consideration for Transfer to the Partnership. Subject to the terms
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and provisions of this Agreement, in consideration for the transfer of such
interest in the Subsidiary Trust, FFP Properties is issuing and delivering to
the Partnership certificates evidencing 3,741,621 general partner units of FFP
Properties.
7.3 Consideration for Transfer to FFPMC. Subject to the terms and
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provisions of this Agreement, in consideration for the transfer of its one
percent (1%) interest in the Real Property, FFP Properties is issuing and
delivering to FFPMC certificates evidencing 37,794 limited partner units of FFP
Properties.
ARTICLE 8
FFPMC'S TRANSFER OF ITS GENERAL PARTNER
INTEREST IN THE PARTNERSHIP TO THE REIT
8.1 Transfer of General Partner Interest in the Partnership. Pursuant to
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the terms and provisions of this Agreement, FFPMC is transferring, assigning and
conveying to the REIT, its successors and assigns, all its right, title, and
interest in and to its one percent (1%) general partner interest in the
Partnership and all of FFPMC's right, title and interest in the limited partner
units in FFP Properties to the REIT.
8.2 Consideration for Transfer. Pursuant to the terms and provisions of
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this Agreement, in consideration for the transfer of the limited partner units
in the Partnership and FFP Properties, the REIT is issuing and delivering to
FFPMC certificates evidencing 75,210 common shares of the REIT.
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ARTICLE 9
THE REIT'S TRANSFER
OF ITS LIMITED PARTNER INTEREST
IN FFP PROPERTIES TO THE PARTNERSHIP
9.1 Transfer of Limited Partner Interest in FFP Properties. Pursuant to
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the terms and provisions of this Agreement, the REIT is transferring, assigning
and conveying to the Partnership, its successors and assigns, all its right,
title, and interest in the limited partner units in FFP Properties to the
Partnership, whereupon the units in FFP Properties will represent general
partner units in FFP Properties.
9.2 Consideration for Transfer. Pursuant to the terms and provisions of
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this Agreement, in consideration for the transfer of the limited partner units
in FFP Properties, the Partnership is issuing and delivering to the REIT
certificates evidencing 37,794 units of limited partner interest in the
Partnership.
ARTICLE 10
THE HARVISON FAMILY'S TRANSFER
OF ITS LIMITED PARTNER INTEREST
IN THE PARTNERSHIP TO FFP PROPERTIES
10.1 Transfer of Limited Partner Interest in the Partnership. Pursuant to
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the terms and provisions of this Agreement, the members of the Harvison Family
is transferring, assigning and conveying to the Partnership, its successors and
assigns, all their right, title, and interest in and to their 39.3% limited
partner interest in the Partnership.
10.2 Consideration for Transfer. Pursuant to the terms and provisions of
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this Agreement, in consideration for the transfer of the limited partner
interest in the Partnership, the Partnership is transferring, assigning and
conveying to the members of the Harvison Family certificates evidencing
1,469,943 units of limited partner interest of FFP Properties in the same
proportion as their prior holdings of the limited partner interest in the
Partnership.
ARTICLE 11
CLOSING
11.1 Time and Place of Closing. The Closing with respect to the transfer
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of the Real Property has occurred at the offices of Jenkens & Gilchrist, a
Professional Corporation, 1445 Ross Avenue, Suite 3200, Dallas, Texas on the
date of this Agreement (the "Closing Date").
11.2 Effective Time. The Closing will be deemed to have occurred, and
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will be effective, for accounting and tax purposes, immediately before midnight
on the Closing Date.
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11.3 Further Assurances. Each party agrees to deliver any further
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assignments, conveyances and other assurances, documents, and instruments of
transfer requested by the other party, and to take all other actions consistent
with the terms of this Agreement for the purpose of effecting the transactions
contemplated by this Agreement.
11.4 Prorations. Within thirty (30) days after the Closing Date, the
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following items will be proportioned and prorated, in cash, on a daily basis,
between the parties as of 12:01 a.m. on the day following the Closing Date:
(a) Taxes. General county, city, and school taxes on a tax year
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basis for the Real Property.
(b) Utilities. All utility expenses.
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(c) Lease Payments. All Lease Payments.
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(d) Insurance. All insurance premiums.
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ARTICLE 12
MISCELLANEOUS
12.1 Assignment. Neither this Agreement nor the rights, duties, or
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obligations arising hereunder shall be assignable or delegable by either party
without the express prior written consent of the other.
12.2 Parties in Interest. Nothing in this Agreement, whether express or
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implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than any of the parties to this Agreement, the
entities named herein and their respective permitted successors and assigns, nor
is anything in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, nor shall any
provision give any third persons any right of subrogation or action over or
against any party to this Agreement.
12.3 Entire Agreement; Modification; Waiver. This Agreement and the
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exhibits hereto constitute the entire Agreement between the parties to this
Agreement, on the other, pertaining to the subject matter contained in it and
supersedes all prior agreements, representations, and all understandings of the
parties. No supplement, modification, or amendment of this Agreement shall be
binding unless expressed as such and executed in writing by the parties to this
Agreement. No waiver of any of the provisions of this Agreement shall be deemed
to be or shall constitute a waiver of any other provisions hereof, whether or
not similar, nor shall any such waiver constitute a continuing waiver. No
waiver shall be binding unless expressed as such in a document executed by the
party making the waiver.
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12.4 Publicity. All notices to third parties and all other publicity
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concerning the transactions contemplated by this Agreement shall be jointly
planned, coordinated, and released by and between the parties to this Agreement.
None of the parties shall act unilaterally in this regard without the prior
written approval of the other; however, the approval shall not be unreasonably
withheld.
12.5 Records. The parties to this Agreement agree to make available to
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each other, all financial or other records relating to any period prior to the
Closing Date in their respective possession which may be reasonably required by
the other party.
12.6 Limited Recourse. Notwithstanding anything to the contrary contained
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herein or elsewhere, no general partner, limited partner, officer, director,
stockholder, employee, agent, servant, or other representative of any party to
this Agreement (each an "Individual") shall have any personal liability for the
performance of any obligations, or in respect of any liability, of any of the
parties under this Agreement, and no monetary or other judgment shall be sought
or enforced against any such Individuals or their assets.
12.7 Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of such
counterparts shall constitute but one agreement.
12.8 Transactions Considered Taken. All of the transactions described
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herein shall be considered to have taken place simultaneously, but in the order
specified in this Agreement.
12.9 Captions. The captions in this Agreement are for convenience only
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and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement. The Schedules attached
hereto shall constitute a part of this Agreement.
12.10 Governing Law. This Agreement and the legal relations between the
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parties hereto shall be governed by, and construed in accordance with, the laws
of the State of Texas without regard to the principles of conflicts of laws.
The covenants contained herein are performable in, and are intended to be
performed in, Tarrant County, Texas.
12.11 Binding Effect. All covenants and agreements contained in this
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Agreement shall bind and inure to the benefit of, and be enforceable by, the
successors and assigns of the parties hereto.
12.12 Severability. Any article, section, subsection, clause, sentence,
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paragraph, or provision of this Agreement held by a court of competent
jurisdiction to be invalid, illegal, or ineffective shall not impair,
invalidate, or nullify the remainder of this Agreement, but the effect thereof
shall be confined to the article, section, subsection, clause, sentence
paragraph, or provision so held to be invalid, illegal, or ineffective.
12.13 Non-Waiver. No breach of any of the terms or provisions of this
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Agreement shall be deemed consented to or excused, nor shall the validity or
performance of any representation,
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promise, or undertaking herein be deemed waived, nor any delay in or deviation
from the time or manner of any performance be deemed consented to unless such
consent, excuse, or waiver shall be in writing and signed by the party claimed
to have consented, excused, or waived. Any such consent, excuse, or waiver shall
not constitute a consent to, waiver of, or excuse for any other similar or
dissimilar, breach, delay, or deviation.
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IN WITNESS WHEREOF, this Agreement has been executed by a duly authorized
officer of each of the parties hereto, all as of the date first above written.
FFP PARTNERS MANAGEMENT COMPANY, INC.
By:
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John H. Harvison, Chairman of the Board
FFP PARTNERS, L.P.
By: FFP PARTNERS MANAGEMENT COMPANY, INC., as General
Partner
By:
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John H. Harvison, Chairman of the Board
THE HARVISON FAMILY
Economy Oil Company
By:
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John H. Harvison, President
Hi-Lo Distributors, Inc.
By:
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John H. Harvison, Vice President
Gas-Go, Inc.
By:
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John H. Harvison, President
Swifty Distributors
By:
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John H. Harvison, Vice President
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Hi-Lo Corporation
By:
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John H. Harvison, President
Thrift Distributors, Inc.
By:
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John H. Harvison, President
Thrift Wholesale Company
By:
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John H. Harvison, President
Thrift-Way, Inc.
By:
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John H. Harvison, Vice President
Gas-N-Sav, Inc.
By:
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John H. Harvison, Vice President
Nu-Way Energy Corporation
By:
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John H. Harvison, Vice President
Southway, Inc.
By:
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John H. Harvison, President
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