Exhibit 99(b)(10)
SALE-LEASEBACK AGREEMENT
THIS SALE-LEASEBACK AGREEMENT (this "Agreement") is made as of July 27,
2001, by and between XXXXXXX FAMILY, LLC, a Massachusetts limited liability
company ("Buyer"), whose address is 000 Xxxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX
00000, and SAXET CORPORATION, a Delaware corporation (the "Seller"), whose
address is 000 Xxxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in
this Agreement shall have the meanings set forth in Section 1. Seller owns or
has an option or right to purchase the Properties. Buyer desires to purchase the
Land Parcels and the Reversionary Interests with respect to the Leased
Properties and the Shaumburg Property pursuant to this Agreement and lease the
Land Parcels for each of the respective Leased Properties to SLA Mail II, Inc.,
a Massachusetts corporation ("SLA Mail") pursuant to the Lease.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following meanings for
all purposes of this Agreement:
"AFFILIATE" means any person or entity which directly or indirectly
controls, is under common control with, or is controlled by any other person or
entity. For purposes of this definition, "controls", "under common control with"
and "controlled by" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such person
or entity, whether through ownership of voting securities or otherwise.
"CLOSING" shall have the meaning set forth in Section 5.
"CLOSING DATE" shall have the meaning set forth in Section 5.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COUNSEL" means one or more legal counsel to Seller and Guarantor
licensed in the states in which (i) the Properties are located, (ii) Seller and
Guarantor are incorporated or formed and (iii) Seller and Guarantor maintain
their chief executive offices, as selected by Seller and Guarantor and approved
by Buyer.
"DE MINIMIS AMOUNTS" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms, the use, storage or release of which does not
constitute a violation of, or require regulation or remediation under, any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the
Properties are located.
"ENVIRONMENTAL CONDITION" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or surrounding any
of the Properties, whether or not yet discovered, which could or does result in
any damage, loss, cost, expense, claim, demand, order or liability to or against
Seller or Buyer by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition resulting
from the operation of Seller's business and/or the operation of the business of
any other property owner or operator in the vicinity of any of the Properties
and/or any activity or operation formerly conducted by any person or entity on
or off any of the Properties.
"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules and regulations relating to Hazardous
Materials and/or the protection of human health or the environment, by reason of
a Release or a Threatened Release of Hazardous Materials or relating to
liability for or costs of Remediation or prevention of Releases. "Environmental
Laws" includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations, rulings, orders or decrees promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); the Solid Waste Disposal Act; the Clean
Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe
Drinking Water Act; the Occupational Safety and Health Act; the Federal Water
Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act;
the Endangered Species Act; the National Environmental Policy Act; and the River
and Harbors Appropriation Act. "Environmental Laws" also includes, but is not
limited to, any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law: conditioning
transfer of property upon a negative declaration or other approval of a
Governmental Authority of the environmental condition of the property; requiring
notification or disclosure of Releases or other environmental condition of any
of the Properties to any Governmental Authority or other person or entity,
whether or not in connection with transfer of title to or interest in property;
relating to nuisance, trespass or other causes of action related to Hazardous
Materials; and relating to wrongful death, personal injury, or property or other
damage in connection with the physical condition or use of any of the Properties
by reason of the presence of Hazardous Materials in, on, under or above any of
the Properties.
"GUARANTOR" means Uno Restaurant Corporation, a Delaware corporation.
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"GUARANTY" means that certain Unconditional Guaranty of Payment and
Performance dated as of the Closing Date to be executed by Guarantor for the
benefit of Buyer with respect to the Lease, the Xxxxxx'x Lease Agreement and
other matters, as the same may be amended from time to time.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states in which the
Properties are located or any political subdivision thereof.
"HAZARDOUS MATERIALS" means (i) any toxic substance or hazardous waste,
substance, solid waste or related material, or any pollutant or contaminant;
(ii) radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contains
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are more stringent, or any
petroleum product; (iii) any substance, gas, material or chemical which is or
may be defined as or included in the definition of "hazardous substances,"
"toxic substances," "hazardous materials," "hazardous wastes," "regulated
substances" or words of similar import under any Environmental Laws; and (iv)
any other chemical, material, gas or substance the exposure to or release of
which is or may be prohibited, limited or regulated by any Governmental
Authority that asserts or may assert jurisdiction over any of the Properties or
the operations or activity at any of the Properties, or any chemical, material,
gas or substance that does or may pose a hazard to the health and/or safety of
the occupants of any of the Properties or the owners and/or occupants of
property adjacent to or surrounding any of the Properties.
"IMPROVEMENTS MASTER LEASE" has the meaning set forth in Section 16(S).
"INDEMNIFIED PARTIES" has the meaning set forth in Section 14.
"LAND PARCELS" means the parcels of land described by address, Buyer
Number and Unit Number in EXHIBIT A Attached hereto and legally described in
EXHIBIT A-1 attached hereto, and the improvements thereto, excluding all
buildings, foundations and structures, or any fixtures within or upon those
buildings, foundations and structures, and excluding Personalty and inventory,
but including, without implied limitation, pavement and sidewalks, landscaping
improvements, retaining walls and underground utility supply lines (to the
extent owned by Seller).
"XXXXXX'X LEASE AGREEMENT" means that certain Lease Agreement between
Saxet Corporation and Xxxxxx'x Seafood House - Illinois, Inc., dated January 9,
1997, as amended, pursuant to which Xxxxxx'x Seafood House - Illinois, Inc.,
leases the Schaumburg Property from Saxet Corporation, a copy of such lease is
attached hereto as EXHIBIT B.
"LEASE" means the master lease agreement dated as of the date of this
Agreement to be executed by Buyer, as lessor, and SLA Mail, as lessee, with
respect to the Land Parcels for each of the respective Leased Properties, as the
same may be amended from time to time.
"LEASED IMPROVEMENTS" means that portion of the improvements,
appurtenances and fixtures included in the Leased Properties, but excluding the
Land Parcels and the Reversionary Interests for the respective Leased
Properties.
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"LEASED PROPERTIES" means the Properties (i.e. Land Parcel with all
improvements and fixtures) described by address and unit numbers listed on
Exhibit C attached hereto.
"LICENSE AGREEMENT" means that certain Optional License Agreement dated
as of the Closing Date by and between Buyer and Pizzeria Uno Corporation, a
Delaware corporation
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
net worth or operation of Seller, Guarantor or any of the Properties, including,
without limitation, the operation of any of the Properties as a Permitted
Facility and/or the value of any of the Properties, or (ii) Seller's or
Guarantor's ability to perform their obligations under the Sale-Leaseback
Documents.
"MEMORANDUM" means the memorandum of master lease dated as of the date
of this Agreement to be executed by Buyer, as lessor, and SLA Mail, as lessee,
with respect to the Leased Properties. A duplicate original Memorandum will be
executed and recorded in the applicable real property records for each Leased
Property. Each Memorandum will contain exhibits with the addresses and store
identification numbers for all of the Leased Properties and the legal
description for the applicable property.
"MERGER" means the merger of Uno Acquisition Corp., a Delaware
corporation, with and into Uno Restaurant Corporation, a Delaware corporation,
pursuant to the Merger Agreement.
"MERGER AGREEMENT" means that certain Agreement and Plan of Merger
dated April 19, 2001, by and among Uno Restaurant Corporation, Uno Restaurant
Holdings Corporation and Uno Acquisition Corp.
"NON-FOREIGN SELLER CERTIFICATE" means the non-foreign seller
certificate to be executed and delivered by Seller to Buyer prior to or on the
Closing Date.
"OTHER AGREEMENTS" means, collectively, all agreements and instruments
now or hereafter entered into between, among or by (1) any of the Seller
Entities, and, or for the benefit of (as intended beneficiary or third party
beneficiary), (2) Buyer; provided, however, the term Other Agreements shall not
include this Agreement, the other Sale-Leaseback Documents, agreements between
and among institutional lenders and one or more of the Seller Entities.
"PERMITTED EXCEPTIONS" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance policies
issued by Title Company to Buyer and approved by Buyer in connection with this
Agreement, including, but not limited to the Xxxxxx'x Lease Agreement and the
provisions thereof.
"PERMITTED FACILITY" means with respect to the Leased Properties, a
Pizzeria Uno Chicago Bar & Grill restaurant or any future concept or use to be
developed.
"PERMITTED SUBLEASES" means, collectively, the Master Subleases dated
as of the date of this Agreement to be executed by SLA Mail, as lessor and the
Permitted Sublessees, as lessees, with respect to the Leased Properties.
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"PERMITTED SUBLESSEES" means Pizzeria Uno of Norfolk, Inc., and UNO
Restaurants, Inc., a Massachusetts corporation, and their assigns as provided in
the Lease.
"PERSONALTY" means all machinery, appliances, furniture, equipment,
trade fixtures and other personal property of Seller (excluding inventory) from
time to time situated on or used in connection with the Properties; provided,
however, the term "Personalty" shall not include the HVAC, walk-in coolers,
walk-in freezers, supply fans, exhaust fans, air ducts, hoods, vents, built-in
sinks, built-in countertops, plumbing and electrical fixtures, merchandise
shelving, sign poles and lighting poles, all of which items are intended to be
fixtures as such term is used within the definition of "Properties".
"PROPERTIES" means, collectively, the Land Parcels and all rights,
privileges and appurtenances associated therewith, and all buildings,
foundations, structures, fixtures and other improvements now or hereafter
located on such real estate (excluding Personalty and inventory).
"PURCHASE PRICE" means the amount specified in Section 3.
"RELEASE" means any depositing, discharge, leaking, spilling,
injecting, pumping, pouring, emptying, escaping, dumping or disposing of
Hazardous Materials into the environment, except for De Minimis Amounts.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Materials, any actions to prevent, cure or mitigate any
Release, any inspection, investigation, study, monitoring, assessment, sampling
and testing, laboratory or other analysis, relating to any Hazardous Materials.
"REVERSIONARY INTERESTS" means a reversionary interest in the Leased
Improvements for the benefit of Buyer on the terms and conditions set forth in
the Lease or the Improvements Master Lease.
"SALE PROPERTIES" as defined in Section 2(i).
"SALE-LEASEBACK DOCUMENTS" means this Agreement, the Lease, the
Permitted Subleases, the Guaranty, the Memorandum, and all other documents
executed in connection therewith or contemplated thereby.
"SCHAUMBURG PROPERTY" means the Property located in Schaumburg,
Illinois.
"SELLER ENTITIES" means, collectively, Seller and Guarantor and all
Affiliates of Seller and Guarantor.
"SLA MAIL" shall have the meaning set forth in the Preliminary
Statement.
"THREATENED RELEASE" means a substantial likelihood of a Release which
requires action pursuant to Environmental Law to prevent or mitigate damage to
the soil, surface waters, groundwaters, land, stream sediments, surface or
subsurface strata, ambient air or any other environmental medium comprising or
surrounding any of the Properties which may result from such Release.
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"TITLE COMPANY" means the title insurance company described in Section
6.
2. TRANSACTION. On the terms and subject to the conditions set
forth herein:
(i) Seller shall sell, or cause to be conveyed, and Buyer
shall purchase all of the Land Parcels for each of the respective
Leased Properties and the Reversionary Interests, and the entire
Property for the Schaumburg Property (all of the interests to be sold
or conveyed are referred to collectively as the "Sale Properties");
(ii) Buyer shall lease all of the Land Parcels for each of
the respective Leased Properties to SLA Mail pursuant to the Lease; and
(iii) Seller shall transfer to SLA Mail an adequate interest
in all of the Leased Improvements, either through a grant of fee simple
or through the Improvements Master Lease, to allow SLA Mail as lessor
to enter into the Permitted Subleases with respect to the Leased
Properties (i.e. including both the Land Parcels and the Leased
Improvements).
(iv) SLA Mail shall sublease certain of the Leased Properties
to the Permitted Sublessees pursuant to the Permitted Subleases.
The sale and purchase of all of the Sale Properties pursuant to this
Agreement and the lease of all of the Land Parcels for each of the respective
Leased Properties to SLA Mail pursuant to the Lease and the sublease of certain
of the Leased Properties to the Seller are not severable and shall be considered
a single integrated transaction.
3. PURCHASE PRICE. The aggregate purchase price for all of the Sale
Properties shall be $4,629,786.00 (the "Purchase Price"). The Purchase Price has
been allocated among the Sale Properties as set forth on EXHIBIT A attached
hereto. The Purchase Price shall be paid at the Closing in cash or its
equivalent subject to any prorations and adjustments required by this Agreement.
The Purchase Price shall be remitted at Closing to Seller or at Seller's
direction. In addition to payment of the Purchase Price, Buyer shall be
responsible to pay at Closing the following fees and costs: (i) any costs
related to the procurement of residual value insurance policies by Buyer, (ii)
attorneys' fees of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, counsel to Buyer, and (iii)
Buyer's reasonable out-of-pocket costs.
4. INTENTIONALLY DELETED.
5. CLOSING DATE. The purchase and sale of the Sale Properties shall be
closed (the "Closing") within 30 days following the satisfaction of all of the
terms and conditions contained herein, but in no event shall the date of the
Closing be extended beyond August 31, 2001, unless such extension shall be
approved by Buyer in its sole discretion (the date on which the Closing shall
occur is referred to herein as the "Closing Date").
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6. CLOSING. Buyer has ordered a title insurance commitment for each of
the Properties from Chicago Title Insurance Company ("Title Company"). Prior to
the Closing Date, the parties hereto shall deposit with Title Company all
documents and moneys necessary to comply with their obligations under this
Agreement. Title Company shall not cause the transaction to close unless and
until it has received written instructions from Buyer to do so. Except for the
fees and costs to be paid by Buyer pursuant to Section 3, all costs of such
transaction shall be borne by Seller, including, without limitation, the cost of
title insurance and endorsements, the attorneys' fees of Seller, local counsel
attorneys' fees of Buyer, the cost of the surveys, stamp taxes, transfer fees
and escrow and recording fees. All real and personal property and other
applicable taxes and assessments and other charges relating to any of the
Properties which are due and payable on or prior to the Closing Date, as well as
such taxes and assessments due and payable subsequent to the Closing Date but
which Title Company requires to be paid at Closing as a condition to the
issuance of the title insurance policies described in Section 11.C, shall be
paid by Seller at or prior to the Closing, and all other taxes and assessments
shall be paid by SLA Mail in its capacity as lessee under the Lease in
accordance with the terms of the Lease. The Closing documents shall be dated as
of the Closing Date.
Seller and Buyer hereby employ Title Company to act as escrow agent in
connection with this transaction. Seller and Buyer will deliver to Title Company
all documents, pay to Title Company all sums and do or cause to be done all
other things necessary or required by this Agreement, in the reasonable judgment
of Title Company, to enable Title Company to comply herewith and to enable any
title insurance policy provided for herein to be issued. Title Company is
authorized to pay, from any funds held by it for Buyer's or Seller's respective
credit all amounts necessary to procure the delivery of such documents and to
pay, on behalf of Buyer and Seller, all charges and obligations payable by them,
respectively. Seller will pay all charges payable by it to Title Company. Title
Company is authorized, in the event any conflicting demand is made upon it
concerning these instructions or the escrow, at its election, to hold any
documents and/or funds deposited hereunder until an action shall be brought in a
court of competent jurisdiction to determine the rights of Seller and Buyer or
to interplead such documents and/or funds in an action brought in any such
court. Deposit by Title Company of such documents and funds, after deducting
therefrom its charges and its expenses and attorneys' fees incurred in
connection with any such court action, shall relieve Title Company of all
further liability and responsibility for such documents and funds. Title
Company's receipt of this Agreement and opening of an escrow pursuant to this
Agreement shall be deemed to constitute conclusive evidence of Title Company's
agreement to be bound by the terms and conditions of this Agreement pertaining
to Title Company. Disbursement of any funds shall be made by check, certified
check or wire transfer, as directed by Buyer. Title Company shall be under no
obligation to disburse any funds represented by check or draft, and no check or
draft shall be payment to Title Company in compliance with any of the
requirements hereof, until it is advised by the bank in which such check or
draft is deposited that such check or draft has been honored. Title Company is
authorized to act upon any statement furnished by the holder or payee, or a
collection agent for the holder or payee, of any lien on or charge or assessment
in connection with any of the Properties, concerning the amount of such charge
or assessment or the amount secured by such lien without liability or
responsibility for the accuracy of such statement. The employment of Title
Company as escrow agent shall not affect any rights of subrogation under the
terms of any title insurance policy issued pursuant to the provisions thereof.
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Seller and Buyer contemplate that due to the short time frame
anticipated for the Closing hereunder, the Title Company will not be able to
complete its title searches to update its commitments prior to the anticipated
Closing hereunder. Accordingly, Seller and Buyer hereby agree that the Closing
shall not be delayed thereby, but the obligations to deliver the title and all
conditions hereinabove shall continue in full force and effect until satisfied.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer contained in this Section are being made by Buyer as of the
date of this Agreement and the Closing Date to induce Seller to enter into this
Agreement and consummate the transactions contemplated herein, and Seller has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Buyer represents and
warrants to Seller as follows:
A. ORGANIZATION OF BUYER. Buyer has been duly formed, is
validly existing and has taken all necessary action to authorize the
execution, delivery and performance by Buyer of this Agreement.
B. AUTHORITY OF BUYER. The person who has executed this
Agreement on behalf of Buyer is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by Buyer, this Agreement
shall constitute the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
All representations and warranties of Buyer made in this Agreement
shall survive the Closing.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. The representations and
warranties of Seller contained in this Section are being made as of the date of
this Agreement and the Closing Date to induce Buyer to enter into this Agreement
and consummate the transactions contemplated herein, and Buyer has relied, and
will continue to rely, upon such representations and warranties from and after
the execution of this Agreement and the Closing. Seller represents and warrants
to Buyer as follows:
A. INFORMATION AND FINANCIAL STATEMENTS. Seller has delivered
to Buyer financial statements (either audited financial statements or,
if Seller does not have audited financial statements, certified
financial statements) and certain other information concerning it and
Guarantor, which financial statements and other information are true,
correct and complete in all material respects; and no material adverse
change has occurred with respect to any such financial statements and
other information provided to Buyer since the date such financial
statements and other information were prepared or delivered to Buyer.
Seller understands that Buyer is relying upon such financial statements
and information and Seller represents that such reliance is reasonable.
All
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such financial statements were prepared in accordance with
generally accepted accounting principles consistently applied and
accurately reflect, as of the date of this Agreement and the Closing
Date, the financial condition of each individual or entity to which
they pertain.
B. ORGANIZATION AND AUTHORITY. (i) Seller and Guarantor are
duly organized or formed corporations, validly existing and in good
standing under the laws of their state of incorporation, and qualified
to do business in any jurisdiction where such qualification is
required. All necessary corporate action has been taken to authorize
the execution, delivery and performance of this Agreement and of the
other documents, instruments and agreements provided for herein.
(ii) The person who has executed this Agreement on behalf of
Seller is duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. Upon execution by Seller and
Guarantor, this Agreement and the other documents, instruments and
agreements to be executed in connection with this Agreement, shall
constitute the legal, valid and binding obligations of Seller and
Guarantor, enforceable against Seller and Guarantor in accordance with
their respective terms.
D. LITIGATION. There are no suits, actions, proceedings or
investigations pending or, to the best of its knowledge, threatened
against or involving Seller or Guarantor or any of the Properties
before any Governmental Authority which might reasonably result in any
material adverse change in the contemplated business, condition, worth
or operations of Seller, Guarantor or any of the Properties.
E. ABSENCE OF BREACHES OR DEFAULTS. Neither Seller nor
Guarantor is in default under any other document, instrument or
agreement to which Seller or Guarantor is a party or by which Seller,
Guarantor, any of the Properties or any of Seller's or Guarantor's
property is subject or bound, except where such default would not have
a Material Adverse Effect. The authorization, execution, delivery and
performance of this Agreement and the documents, instruments and
agreements provided for herein will not result in any breach or default
under any other document, instrument or agreement to which Seller or
Guarantor is a party or by which Seller, Guarantor, any of the
Properties or any of Seller's or Guarantor's property is subject or
bound, except where such breach or default would not have a Material
Adverse Effect. The authorization, execution, delivery and performance
of this Agreement and the documents, instruments and agreements
provided for herein will not violate any applicable law, statute,
regulation, rule, ordinance, code, rule or order, except where such
violation would not have a Material Adverse Effect.
F. UTILITIES. At the Closing Date, each of the Properties will
be served by ample public utilities to permit full utilization of each
of the Properties for their intended purposes and all utility
connection fees and use charges will have been paid in full.
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G. INTENDED USE AND ZONING; COMPLIANCE WITH LAWS. Seller
intends to use each of the Leased Properties solely for the operation
of a Permitted Facility in accordance with the standards of operations
then in effect on a system-wide basis, and related ingress, egress and
parking, and for no other purposes. The Schaumburg Property and each of
the Leased Properties is in compliance with all applicable zoning
requirements and the use of each of the Leased Properties as a
Permitted Facility and the use of the Schaumburg Property as and for a
restaurant does not constitute an unlawful nonconforming use under
applicable zoning requirements. The Schaumburg Property and each of the
Leased Properties complies in all material respects with all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders and approvals of any governmental agencies, departments,
commissions, bureaus, boards or instrumentalities of the United States,
the states in which the Leased Properties are located and all political
subdivisions thereof, including, without limitation, all health,
building, fire, safety and other codes, ordinances and requirements,
all applicable standards of the National Board of Fire Underwriters and
all policies or rules of common law, in each case, as amended, and any
judicial or administrative interpretation thereof, including any
judicial order, consent, decree or judgment applicable to Seller.
H. AREA DEVELOPMENT; WETLANDS. No condemnation or eminent
domain proceedings affecting any of the Properties have been commenced
or, to the best of Seller's knowledge, are contemplated. To the best
of Seller's knowledge, the area where any of the Properties is located
has not been declared blighted by any Governmental Authority. Each of
the Properties is not designated by any Governmental Authority as
wetlands.
I. LICENSES AND PERMITS; ACCESS. Prior to the Closing Date,
Seller shall have all required licenses and permits, both governmental
and private, to use and operate the Schaumburg Property and each of the
Leased Properties in the intended manner. There are adequate rights of
access to public roads and ways available to each of the Properties to
permit full utilization of each of the Properties for its intended
purpose and all such public roads and ways have been completed and
dedicated to public use.
J. CONDITION OF PROPERTIES. As of the Closing Date, each of
the Properties will be of good workmanship and materials, fully
equipped and operational, in good condition and repair, free from
structural defects, clean, orderly and sanitary, safe, well lit,
landscaped, decorated, attractive and well maintained.
K. ENVIRONMENTAL. Seller is fully familiar with the present
use of each of the Properties, and, after due inquiry, Seller has
become generally familiar with the prior uses of each of the
Properties. To the best of Seller's knowledge, no Hazardous Materials
have been used, handled, manufactured, generated, produced, stored,
treated, processed, transferred or disposed of at or on any of the
Properties, except in De Minimis Amounts or in compliance with all
applicable Environmental Laws, and no Release or Threatened Release has
occurred at or on any of the Properties. To the best of Seller's
knowledge, the activities, operations and business undertaken on, at or
about each of the Properties,
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including, but not limited to, any past or ongoing alterations or
improvements at each of the Properties, are and have been at all
times, in compliance with all Environmental Laws. To the best of
Seller's knowledge, no further action is required to remedy any
Environmental Condition or violation of, or to be in compliance in all
material respects with, any Environmental Laws, and no lien has been
imposed on any of the Properties by any Governmental Authority in
connection with any Environmental Condition, the violation or
threatened violation of any Environmental Laws or the presence of any
Hazardous Materials on or off any of the Properties.
There is no pending or, to the best of Seller's knowledge,
threatened litigation or proceeding before any Governmental Authority
in which any person or entity alleges the violation or threatened
violation of any Environmental Laws or the presence, Release,
Threatened Release or placement on or at any of the Properties of any
Hazardous Materials, or of any facts which would give rise to any such
action, nor has Seller (a) received any notice (and Seller has no
actual knowledge) that any Governmental Authority or any employee or
agent thereof has determined, threatens to determine or requires an
investigation to determine that there has been a violation of any
Environmental Laws at, on or in connection with any of the Properties
or that there exists a presence, Release, Threatened Release or
placement of any Hazardous Materials on or at any of the Properties, or
the use, handling, manufacturing, generation, production, storage,
treatment, processing, transportation or disposal of any Hazardous
Materials at or on any of the Properties; (b) received any notice under
the citizen suit provision of any Environmental Law in connection with
any of the Properties or any facilities, operations or activities
conducted thereon, or any business conducted in connection therewith;
or (c) received any request for inspection, request for information,
notice, demand, administrative inquiry or any formal or informal
complaint or claim with respect to or in connection with the violation
or threatened violation of any Environmental Laws or existence of
Hazardous Materials relating to any of the Properties or any
facilities, operations or activities conducted thereon or any business
conducted in connection therewith.
L. TITLE TO PROPERTIES. Title to each of the Properties is
vested in Seller. Upon Closing, title to each of the Sale Properties
shall be vested in Buyer, free and clear of all liens, encumbrances,
charges and security interests of any nature whatsoever, except the
Permitted Exceptions, the Lease and the Permitted Subleases.
M. NO OTHER AGREEMENTS AND OPTIONS. Except as set forth in
SCHEDULE I attached hereto, neither Seller nor Guarantor nor, to the
best of Seller's knowledge, any of the Properties is subject to any
commitment, obligation, or agreement, including, without limitation,
any right of first refusal, option to purchase or lease granted to a
third party, which could or would prevent Seller from completing or
impair Seller's ability to complete the sale of any of the Sale
Properties under this Agreement or which would bind Buyer subsequent to
consummation of the transaction contemplated by this Agreement.
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N. NO MECHANICS' LIENS. There are no outstanding accounts
payable, mechanics' liens, or rights to claim a mechanics' lien in
favor of any materialman, laborer, or any other person or entity in
connection with labor or materials furnished to or performed on any
portion of any of the Properties that will not have been fully paid
for on or before the Closing Date; no work has been performed or is in
progress nor have materials been supplied to any of the Properties or
agreements entered into for work to be performed or materials to be
supplied to any of the Properties prior to the date hereof, which will
not have been fully paid for on or before the Closing Date or which
might provide the basis for the filing of such liens against any of
the Properties or any portion thereof; Seller shall be responsible for
any and all claims for mechanics' liens and accounts payable that have
arisen or may subsequently arise due to agreements entered into for
and/or any work performed on, or materials supplied to any of the
Properties prior to the Closing Date; Seller has made no contract or
arrangement of any kind the performance of which by the other party
thereto would give rise to a lien on any of the Properties; and Seller
shall and does hereby agree to defend, indemnify and forever hold
Buyer and Buyer's designees harmless for, from and against any and all
such mechanics' lien claims, accounts payable or other commitments
relating to any of the Properties.
O. NO RELIANCE. Seller acknowledges that Buyer did not prepare
or assist in the preparation of any of the projected financial
information used by Seller in analyzing the economic viability and
feasibility of the transaction contemplated by this Agreement, and that
Seller has not relied on any report or statement by Buyer in entering
into this Agreement. Furthermore, Seller acknowledges that it has not
relied upon, nor may it hereafter rely upon, the analysis undertaken by
Buyer in determining the Purchase Price, and such analysis will not be
made available to Seller.
P. PURCHASE PRICE. The Purchase Price is the fair market value
of the Sale Properties and was agreed to by Seller and Buyer solely on
that basis.
Q. TITLE AND BULK SALE TRANSFER MATTERS. The condition of
title of each of the Properties is free and clear of any violations of
any existing, applicable laws, ordinances, codes and rules and
regulations or other restrictions or covenants of record imposed by
public or private entities or by agreement. Further, the condition of
title upon the Closing hereunder which shall be evidenced by later
dated title commitments following the Closing Date, shall be sufficient
to deliver good, clean and merchantable title to the Buyer hereunder,
without pending violations of title exceptions and without such title
exceptions or restrictions which would adversely impact Buyer's ability
to own and enjoy the use of the Sale Properties for their intended
uses. Additionally, no bulk sales or other unpaid or overdue taxes must
be paid or will be assessed against Seller or Buyer as a result of this
transaction and Seller shall cooperate with Buyer in filing for and
obtaining any such notices, releases or waivers upon and following the
Closing hereunder. Seller hereby agrees to indemnify and hold Buyer
harmless from and against any and all loss, claim, damage, action, cost
or expense, including reasonable attorneys' fees involved in defending
a claim or enforcing this obligation and indemnification, which Buyer
may incur in connection herewith and therewith.
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All representations and warranties of Seller made in this Section 8
shall survive the Closing.
9. A. COVENANT AND AGREEMENTS OF SELLER. Prior to the Closing
Date, Seller shall, at all reasonable times, upon reasonable advance
notice from Buyer (i) provide Buyer and Buyer's officers, employees,
agents, advisors, attorneys, accountants, architects, and engineers
with access to each of the Properties, all drawings, plans, and
specifications for each of the Properties in possession of Seller, all
engineering reports relating to each of the Properties in the
possession of Seller, the files and correspondence relating to each of
the Properties, and the financial books and records, including lists
of delinquencies, relating to the ownership, operation, and
maintenance of each of the Properties, and (ii) allow such persons to
make such inspections, tests, copies, and verifications as Buyer
considers necessary. All such persons shall use reasonable efforts not
to unduly interfere with the conduct of Seller's business. Seller.
B. COVENANTS AND AGREEMENTS OF BUYER. The Buyer understands and agrees
that it is assuming rights and obligations of Seller pursuant to the Xxxxxx'x
Lease Agreement.
10. TRANSACTION CHARACTERIZATION. A. It is the intent of the parties
that the conveyance of each of the Sale Properties to Buyer be an absolute
conveyance in effect as well as form, and the instruments of conveyance to be
delivered at Closing are not intended to serve or operate as a mortgage,
equitable mortgage, deed of trust, security agreement, trust conveyance or
financing or trust arrangement of any kind, nor as a preference or fraudulent
conveyance against any creditors of Seller. After the execution and delivery of
the deeds described in Section 11.A, Seller will have no legal or equitable
interest or any other claim or interest in any of the Sale Properties.
Furthermore, the parties intend:
(i) for the Lease to be a true lease and not a transaction
creating a financing lease, capital lease, equitable mortgage,
mortgage, deed of trust, security interest or other financing
arrangement, and the economic realities of the Lease are those of a
true lease; and
(ii) for the Lease to constitute a single master lease of all,
but not less than all, of the Land Parcels for each of the respective
Leased Properties, and to be a unitary, unseverable instrument
pertaining to all, but not less than all, of the Land Parcels for each
of the respective Leased Properties and that neither the Lease nor the
duties, obligations or rights of SLA Mail may be allocated or otherwise
divided by SLA Mail among the Leased Properties.
Notwithstanding the existence of the Lease, none of the parties shall
contest the validity, enforceability or characterization of the sale and
purchase of any of the Sale Properties by Buyer pursuant to this Agreement as an
absolute conveyance, and both parties shall support the intent expressed herein
that the purchase of all of the Sale Properties by Buyer pursuant to this
Agreement provides for an absolute conveyance and does not create a joint
venture, partnership, equitable mortgage, trust, financing device or
arrangement, security interest or the like, if, and to the extent that, any
challenge occurs.
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B. This Agreement is a contract to extend a financial accommodation (as
such term is used in the Code) for the benefit of Seller and may not be assumed
over the objection of Buyer in the event Seller becomes a debtor or debtor in
possession in any bankruptcy proceeding. The financial accommodation made
through this Agreement is Buyer's acquisition of all of the Sale Properties for
the purpose of leasing all of the Leased Properties to SLA Mail pursuant to a
true lease.
11. CONDITIONS OF CLOSING. The obligation of Buyer to consummate the
purchase of the Sale Properties pursuant to this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
A. TITLE. Seller shall convey each of the Sale Properties to
Buyer by deeds containing covenants and warranties as are customary in
the applicable jurisdiction (collectively, the "Deeds"), free of all
liens, encumbrances, restrictions, encroachments and easements, except
the Permitted Exceptions, the Lease and the Permitted Subleases.
B. CONDITION OF PROPERTIES. Buyer shall have inspected and
approved each of the Properties, and each of the Properties shall be in
good condition and repair, of good workmanship and materials, fully
equipped and operational, clean, orderly, sanitary, safe, well-lit,
landscaped, decorated, attractive and with a suitable layout, physical
plant, traffic pattern and location all as determined by Buyer in its
sole discretion.
C. EVIDENCE OF TITLE. Buyer shall have received a preliminary
title report and irrevocable commitment to insure title by means of an
ALTA extended coverage owner's policy of title insurance (or its
equivalent, in the event such form is not issued in the jurisdiction
where any of the Properties is located) issued by Title Company showing
good and marketable fee title in Seller, committing to insure Buyer's
fee simple ownership in each of the Sale Properties subject only to
Permitted Exceptions, the Lease and the Permitted Subleases and
containing such endorsements as Buyer may reasonably require.
D. SURVEY; FLOOD HAZARD. Buyer shall have received existing
surveys of each of the Properties, the form and substance of which
shall be satisfactory to Buyer in its sole discretion. If and to the
extent available, Seller shall have provided Buyer with evidence
satisfactory to Buyer that the location of each of the Properties is
not within the 100-year flood plain or identified as a Special Flood
Hazard Area by the Federal Emergency Management Agency, or if any of
the Properties is in such a Special Flood Hazard Area, Seller shall
provide Buyer with evidence of flood insurance maintained on such
Properties in amounts and on terms and conditions satisfactory to
Buyer.
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E. ZONING. If requested by Buyer, Seller shall have provided
Buyer with evidence satisfactory to Buyer to confirm that each of the
Leased Properties is properly zoned for its use as a Permitted
Facility and that such use constitutes a legal use under applicable
zoning requirements.
F. UTILITIES. Buyer shall have received evidence satisfactory
to Buyer in its sole discretion that all utilities and roads necessary
for the operation of each of the Properties as a Permitted Facility
are available and that all necessary consents to the use of such
utilities and roads have been obtained.
G. COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS.
(i) All obligations of Seller under this Agreement shall have been
fully performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon the
giving of notice and/or passage of time, constitute a breach or default
by Seller hereunder or under the Lease or any other agreement between
or among Buyer or Seller pertaining to the subject matter hereof, and
no event shall have occurred or condition shall exist or information
shall have been disclosed by Seller or discovered by Buyer which has
had or would have a Material Adverse Effect on any of the Properties,
Seller or Buyer's willingness to consummate the transaction
contemplated by this Agreement, as determined by Buyer in its sole and
absolute discretion. Any obligation, representation, warranty or
indemnification by Seller of Buyer or Buyer's assignee and transferee
which has not yet been completed, satisfied or fulfilled upon the
Closing hereunder shall continue in effect and remain enforceable
against Seller upon and following the Closing Date hereunder.
(ii) Buyer shall have received such evidence satisfactory to
Buyer in its reasonable discretion that the representations and
warranties of Seller under this Agreement are true, correct and
complete as of the Closing Date.
H. PROOF OF INSURANCE. Seller shall have delivered to Buyer
copies of insurance policies for the Leased Properties, showing that
all insurance required by the Lease and providing coverage and limits
satisfactory to Buyer is in full force and effect.
I. CLOSING OF MERGER. All of the transactions described in the
Merger Agreement shall have closed prior to or simultaneously with the
Closing of the transaction described in this Agreement.
J. GUARANTY. Seller shall have caused Guarantor to execute and
deliver the Guaranty to Buyer.
K. PERMITTED SUBLEASES. SLA Mail and the Permitted Sublessees
shall have executed and delivered the Permitted Subleases to Buyer.
L. CLOSING DOCUMENTS. On or prior to the Closing Date, Buyer,
Seller and/or Guarantor, as may be appropriate, shall execute and
deliver or cause to be executed and delivered to Title Company or
Buyer, as may be appropriate, all documents required to be
15
delivered by this Agreement, and such other documents, payments,
instruments and certificates, as Buyer may require in form acceptable
to Buyer, including, without limitation, the following:
(i) Deeds;
(ii) Lease and Permitted Subleases;
(iii) Memorandum;
(iv) Proof of Insurance;
(v) License Agreement;
(vi) Non-Foreign Seller Certificate;
(vii) Closing settlement statement prepared by Title
Company;
(viii) Guaranty; and
(ix) Such other documents as may be reasonably necessary
to consummate the transaction contemplated herein.
Upon fulfillment or waiver of all of the above conditions, Buyer shall deposit
funds necessary to close this transaction with the Title Company and this
transaction shall close in accordance with the terms and conditions of this
Agreement.
12. DEFAULT AND REMEDIES.
A. Each of the following shall be deemed an event of default
by Seller (each, an "Event of Default"):
(i) If any representation or warranty of Seller set
forth in any of the Sale-Leaseback Documents is false in any
material respect or if Seller renders any statement or account
which is false in any material respect;
(ii) If Seller fails to keep or perform any of the
terms or provisions of this Agreement;
(iii) If Seller or Guarantor is or becomes insolvent
within the meaning of the Code, files or notifies Buyer that
it intends to file a petition under the Code, initiates a
proceeding under any similar law or statute relating to
bankruptcy, insolvency, reorganization, winding up or
adjustment of debts (collectively, an "Action"), becomes the
subject of either a petition under the Code or an Action which
is not dissolved within 90 days after filing, or is not
generally paying its debts as the same become due;
(iv) If there is an "Event of Default" under the
Lease or any Permitted Sublease; or
(v) If there is an "Event of Default" or a breach or
default, after the passage of all applicable notice and cure
or grace periods, under any other Sale-Leaseback Document or
any of the Other Agreements.
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B. In the event of any Event of Default, Buyer shall be
entitled to exercise, at its option, concurrently, successively or in
any combination, all remedies available under the Lease or at law or in
equity, including without limitation any one or more of the following:
(i) To terminate this Agreement by giving written
notice to Seller in which case neither party shall have any
further obligation or liability, except such liabilities as
Seller may have for such breach or default;
(ii) To proceed with the Closing and direct Title
Company to apply such portion of the Purchase Price as Buyer
may deem reasonably necessary to cure any such breach or
default;
(iii) To bring an action for damages against Seller,
which, in the event Buyer proceeds to close, may include an
amount equal to the difference between the value of the Sale
Properties as conveyed to Buyer and the value such Sale
Properties would have had if all representations and
warranties of Seller were true and Seller had complied with
all of their obligations;
(iv) To bring an action to require Seller
specifically to perform its obligations hereunder; and/or
(v) To recover from Seller all costs and expenses,
including reasonable attorneys' fees, paid or incurred by
Buyer in connection with the transaction contemplated by this
Agreement and all costs and expenses incurred or paid by Buyer
as a result of such breach or default.
The liabilities, obligations and duties of Seller under this Agreement are joint
and several between and among the Seller.
13. ASSIGNMENTS.
A. Buyer may assign in whole or in part its rights under this
Agreement. In the event of any unconditional assignment of Buyer's
entire right and interest hereunder and provided Buyer's assignee shall
have assumed in writing all of the duties and obligations of Buyer
hereunder, Buyer shall automatically be relieved, from and after the
date of such assignment, of liability for the performance of any
obligation of Buyer contained herein.
B. Seller shall not, without the prior written consent of
Buyer, which consent may be withheld in Buyer's sole discretion, sell,
assign, transfer, mortgage, convey, encumber or grant any easements or
other rights or interests of any kind in any of the Properties, any of
Seller's rights under this Agreement or any interest in Seller, whether
voluntarily, involuntarily or by operation of law or otherwise,
including, without limitation, by merger, consolidation, dissolution or
otherwise, except, subsequent to the Closing, as expressly permitted by
the Lease.
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C. Notwithstanding anything herein to the contrary, upon the
Seller assigning its interests as Sublessee under any Permitted
Sublease pursuant to and in accordance with Section 12 of their
respective Permitted Sublease, the assigning Seller shall be released
and discharged from any right, liability, obligation or duty arising
under this Agreement before and after the date of such assignment.
14. INDEMNITY. Seller agrees, to indemnify, protect, hold harmless and
defend Buyer and its directors, officers, shareholders, members, employees,
successors, assigns, agents, lenders, contractors, subcontractors, experts,
licensees, affiliates, lessees, mortgagees, trustees and invitees, as applicable
(collectively, the "Indemnified Parties"), for, from and against any and all
losses, costs, claims, liabilities, damages and expenses (collectively,
"Losses") (including, without limitation, Buyer's reasonable attorneys' fees and
consequential damages but excluding Losses suffered by an Indemnified Party
arising out of such Indemnified Party's gross negligence or willful misconduct
or any violation not caused by Buyer of any of Seller's representations,
warranties, agreements or indemnifications in this Agreement; provided, however,
that the term "gross negligence" shall not include gross negligence imputed as a
matter of law to any of the Indemnified Parties solely by reason of Buyer's
interest in any of the Leased Properties or Seller's failure to act in respect
of matters which are the obligation of SLA Mail under the Lease) arising as the
result of an Environmental Condition and/or a breach of any of the
representations, warranties, covenants, agreements or obligations of Seller set
forth in this Agreement. Without limiting the generality of the foregoing, such
indemnity shall include, without limitation, any damages incurred with respect
to any engineering, governmental inspection and reasonable attorneys' fees and
expenses that the Indemnified Parties may incur by reason of any Environmental
Condition and/or any representation or warranty set forth in Section 8.K being
false, or by reason of any investigation or claim of any Governmental Authority
in connection therewith. The provisions of this Section 14 shall survive the
Closing.
15. INTENTIONALLY DELETED.
16. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant
to this Agreement shall be in writing and given by (i) hand delivery,
(ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and
addresses (or facsimile numbers, as applicable) specified below:
18
If to Seller:
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxx & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Xxxxxx X. London, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer: 000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, LLP
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000)000-0000
B. RISK OF LOSS. As between Buyer and Seller, Seller shall be
responsible for the risk of loss, damage or destruction of any of the
Properties or any part thereof prior to the Closing Date.
C. CONDEMNATION. In the event of a taking of all or any part
of any of the Properties prior to the Closing, Buyer at its sole option
shall have the right to either (i) receive the proceeds of any
condemnation award and, proceed to close this transaction or (ii)
terminate this Agreement with respect to any Property which is subject
to such taking. Buyer and Seller agree to execute such amendments to
this Agreement as may be reasonably required by Buyer to evidence any
such termination.
D. REAL ESTATE COMMISSION. Buyer and Seller represent and
warrant to each other that they have dealt with no real estate broker,
agent, finder or other intermediary in connection with the transactions
contemplated by this Agreement. Buyer and Seller shall indemnify and
hold each other harmless for, from and against any costs, claims or
expenses, including attorneys' fees, arising out of the breach of their
respective representations and warranties contained within this
Section.
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E. WAIVER AND AMENDMENT. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
or any other matter on any future occasion.
F. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any
manner in the construction or interpretation hereof.
G. BUYER'S LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed,
such agreement being a primary consideration for the execution of this
Agreement by Buyer, that (i) there shall be absolutely no personal
liability on the part of Buyer, its successors or assigns and the
trustees, members, partners, shareholders, officers, directors,
employees and agents of Buyer and its successors and assigns, to
Seller with respect to any of the terms, covenants and conditions of
this Agreement or the other Sale-Leaseback Documents, as applicable,
(ii) Seller waives all claims, demands and causes of action against
the trustees, members, partners, shareholders, officers, directors,
employees and agents of Buyer and its successors or assigns in the
event of any breach by Buyer of any of the terms, covenants and
conditions of this Agreement or the other Sale-Leaseback Documents, as
applicable, to be performed by Buyer, and (iii) Seller shall look
solely to the Properties for the satisfaction of each and every remedy
of Seller in the event of any breach by Buyer of any of the terms,
covenants and conditions of this Agreement or the other Sale-Leaseback
Documents, as applicable, to be performed by Buyer, or any other
matter in connection with this Agreement, the other Sale-Leaseback
Documents or any of the Properties, such exculpation of liability to
be absolute and without any exception whatsoever.
H. SEVERABILITY. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect,
and such unenforceable provision shall be reformed by such court so as
to give maximum legal effect to the intention of the parties as
expressed therein.
I. CONSTRUCTION GENERALLY. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party
which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Seller and Buyer were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder.
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J. OTHER DOCUMENTS. Each of the parties agrees to sign such
other and further documents as may be necessary or reasonably
requested by the other party in order to carry out the intentions
expressed in this Agreement.
K. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover all of its attorneys'
fees and other costs in addition to any other relief to which it may be
entitled. References in this Agreement to Buyer's attorneys' fees
and/or costs shall mean both the fees and costs of independent counsel
retained by Buyer with respect to this transaction.
L. ENTIRE AGREEMENT. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to
the subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between Seller and Buyer
with respect to the subject matter of this Agreement.
M. RECORDING. At the election of Buyer, this Agreement may be
recorded in the appropriate governmental office so as to impart
constructive notice of the terms and provisions hereof.
N. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Buyer
acknowledges that this Agreement was partially negotiated in the States
of Massachusetts, Florida, Virginia and Illinois. This Agreement was
partially executed and delivered in the States of Massachusetts,
Florida, Virginia and Illinois. There are substantial contacts between
the parties and the transactions contemplated herein and the States of
Massachusetts, Florida, Virginia and Illinois. For purposes of any
action or proceeding arising out of this Agreement, the parties hereto
expressly submit to the jurisdiction of all federal and state courts
located in the States of Massachusetts, Florida, Virginia or Illinois
depending on situs of the property. Buyer and Seller consent that they
may be served with any process or paper by registered mail or by
personal service within or without the States of Massachusetts,
Florida, Virginia and Illinois in accordance with applicable law.
Furthermore, Buyer and Seller waive and agree not to assert in any such
action, suit or proceeding that they are not personally subject to the
jurisdiction of such courts, that the action, suit or proceeding is
brought in an inconvenient forum or that venue of the action, suit or
proceeding is improper. The creation of this Agreement and the rights
and remedies of Seller with respect to the Properties, as provided
herein and by the laws of the states in which the Properties are
located, as applicable, shall be governed by and construed in
accordance with the internal laws of the states in which the Properties
are located, as applicable, without regard to principles of conflicts
of law. With respect to other provisions of this Agreement, this
Agreement shall be governed by the internal laws of the States of
Massachusetts, Florida, Virginia or Illinois, depending on the situs of
the Property, without regard to its principles of conflicts of law.
Nothing contained in this Section shall limit or restrict the right of
Buyer or Seller to commence any proceeding in the federal or state
courts located in the states in which the Properties are located to the
extent Buyer or Seller deems such proceeding necessary or advisable to
exercise remedies available under this Agreement.
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O. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
P. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee
appointed from a private panel.
Q. SURVIVAL. Except for the conditions of Closing set forth in
Section 11, which shall be satisfied or waived as of the Closing Date,
all representations, warranties, agreements, obligations and
indemnities of Seller and Buyer set forth in this Agreement
(including, without limitation, the provisions of Sections 7, 8 and
14) shall survive the Closing.
R. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL
AND INDIRECT DAMAGES. BUYER AND SELLER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, SELLER AND BUYER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE
TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM EACH
OTHER AND THEIR AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES
OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED
IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY PARTY
OR ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF
ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY EACH OF THE PARTIES OF ANY RIGHT THEY MAY
HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS
BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
22
S. COVENANT AND UNDERTAKING REGARDING THE REVERSIONARY
INTERESTS. Notwithstanding anything to the contrary in this Agreement,
Seller may complete the transfer to SLA Mail of an interest in the
Leased Improvements as provided in Section 2(iii), by grant of fee
simple or through a lease which is in a form and substance reasonably
acceptable to Buyer (the "Improvements Master Lease") after the time of
the Closing. Seller shall undertake to document and confirm the
Reversionary Interests for the benefit of Buyer to the reasonable
satisfaction of Buyer. Without implied limitation of the foregoing; (i)
in the event that the Leased Improvements are transferred to SLA Mail
by grant of fee simple, then the Reversionary Interests shall be on the
terms and conditions set forth in the Lease; and (ii) in the event that
the Leased Improvements are transferred to SLA Mail through the
Improvements Master Lease, then the Improvements Master Lease shall
include provisions regarding the Reversionary Interests consistent with
those set forth in the Lease MUTATIS MUTANDIS. Without implied
limitation of the provisions of clause (ii) of the foregoing sentence,
the Improvements Master Lease shall provide for the benefit of Buyer
that upon the expiration or earlier termination of the Lease (except in
the case of a purchase of Buyer's interest by SLA Mail), title to the
Leased Improvements shall vest in Buyer so that the Leased Improvements
and the entirety of each of the Properties shall be the property of
Buyer without notice or execution of further instruments and without
cost, expense or obligation of any kind or nature to Buyer; and that
Seller shall promptly execute and acknowledge a release deed or any
other documentation required by Buyer to effectuate the foregoing; and
that Seller's covenant to do so shall survive the expiration or sooner
termination of the Improvements Master Lease; and that the Reversionary
Interest is and shall be an appurtenant right to Buyer's interest in
the respective Land Parcels for each Leased Property, and not a
personal right for Buyer, and as such shall not be transferred or held
separately from Buyer's interest in the respective Land Parcels for
each Leased Property.
23
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement
as of the date first above written.
BUYER:
XXXXXXX FAMILY, LLC,
a Massachusetts limited liability company
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
SELLER:
SAXET CORPORATION, a
Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive Officer
24
COMMONWEALTH OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 31, 2001 by
Xxxxx X. Xxxxxxx, a member of Xxxxxxx Family, LLC, a Massachusetts limited
liability company, on behalf of the limited liability companies.
/s/ Xxxx X. Xxxxxx
----------------------
Notary Public
My Commission Expires:
01/24/03
COMMONWEALTH OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 31, 2001 by
Xxxxx X. Xxxxxx as President and Chief Executive Officer of Saxet Corporation, a
Delaware corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxxx
----------------------
Notary Public
My Commission Expires:
01/24/03
25