LIMITED PARTNERSHIP INTEREST PURCHASE AGREEMENT
THIS LIMITED PARTNERSHIP INTEREST PURCHASE AGREEMENT (the "Agreement") is
entered into as of October 27, 2003 by and among EPT New Roc GP, Inc., a
Delaware corporation ("GP Buyer"), EPT New Roc, LLC, a Delaware limited
liability company ("Class A Buyer"); (GP Buyer and Class A Buyer are sometimes
collectively referred to herein as "Buyer"), LRC Industries, Inc., a New York
corporation ("Seller"); DKH-New Roc Associates, L.P., a New York limited
partnership ("Class B Partner"); LC New Roc Inc., a New York corporation (the
"General Partner") and New Roc Associates, L.P., a New York limited partnership
(the "Company").
RECITALS:
WHEREAS, the Seller previously owned all of the existing Class A Interests
in the Company (the "Old Class A Interests") and the Class B Partner owns all of
the existing Class B Interests in the Company (the "Old Class B Interests");
WHEREAS, as of October 27, 2003 (the "First Closing Date"), Buyer acquired
from Reckson Operating Partnerships, L.P. ("Reckson"), pursuant to the Note
Purchase Agreement (defined below), a Promissory Note in the original principal
amount of $20,000,000.00 (the "Mezzanine Loan") payable by Seller, which was
converted into an ownership interest in a portion of the Old Class A Interests
in the Company held by the Seller, and as a result, Buyer currently holds a 49%
equity interest in the Company;
WHEREAS, Seller and the Class B Partner have agreed to transfer all of
their respective interests in the Company to LC New Roc LP, LLC, a newly formed
New York limited liability company ("LC New Roc LP"), which interests shall be
converted into new Class A Interests ("New Class A Interests") (Old Class A
Interests and New Class A Interests are sometimes collectively referred to
herein as "Class A Interests") and new Class B Interests ("New Class B
Interests") (Old Class B Interests and New Class B Interests are sometimes
collectively referred to herein as "Class B Interests"), all as more
particularly described in the Partnership Agreement (defined below);
WHEREAS, Seller desires to cause LC New Roc LP to sell all of its New Class
A Interests in the Company to the Class A Buyer; and
WHEREAS, General Partner owns all of General Partnership Interests (the "GP
Interests") of the Company and desires to sell the GP Interests to GP Buyer; and
WHEREAS, Class A Buyer desires to acquire all of the New Class A Interests
of the Company and GP Buyer desires to acquire all of the GP Interests of the
Company.
NOW, THEREFORE, in consideration of the mutual covenants, undertakings,
representations and warranties set forth herein, the Parties agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE CLASS A INTERESTS AND THE GP INTERESTS
1.1 PURCHASE AND SALE OF THE CLASS A INTERESTS. Subject to the terms and
conditions of this Agreement, on the Closing Date, Seller shall cause LC New Roc
LP to sell, transfer and assign to Class A Buyer and Class A Buyer shall
purchase from LC New Roc LP, the Class A Interests. As a result of the
transactions contemplated herein, the Note Purchase Agreement, the Agreement
dated as of the First Closing Date, executed by and among Class A Buyer, GP
Buyer, Seller and Xxxxx X. Xxxxxxxx (the "Side Agreement"), and the Partnership
Agreement, Class A Buyer shall, after the Closing, own all of the Class A
Interests, LC New Roc LP shall own all of the Class B Interests, and the GP
Buyer shall own all of the GP Interests in the Company.
1.2 PURCHASE AND SALE OF THE GP INTERESTS. Subject to the terms and
conditions of this Agreement, on the Closing Date, General Partner shall sell,
transfer and assign to GP Buyer and GP Buyer shall purchase from General
Partner, the GP Interests.
1.3 PURCHASE PRICE. The purchase price for the Class A Interests shall be
Twenty Four Million Six Hundred Fifty Thousand Dollars ($24,650,000) (including
the amount paid on the First Closing Date upon conversion of the Mezzanine Loan)
and the purchase price for the GP Interests shall be Three Hundred Fifty
Thousand Dollars ($350,000) (together, the "Purchase Price"), subject to the
following condition:
1.3.1 As of the Closing, the Company shall not have paid, and
shall have no current or future obligation to pay, any amount pursuant
to brokerage commissions and transaction costs or any other fee,
commission or other form of compensation to any financial, legal or
other advisor retained to represent the interests of Seller or the
Company in connection with the sale of the Class A Interests, the GP
Interests or assets of the Company or similar transaction ("Seller
Advisor's Fee"). In the event that, as of the Closing, the Company has
paid or has a current or future obligation to pay any Seller Advisor's
Fee, the Purchase Price shall be reduced in the amount of any such
payments or obligations. Nothing contained in this Section 1.3.1 shall
prevent Seller or General Partner from paying or incurring any Seller
Advisor's Fee.
1.4 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by Buyer as
follows:
1.4.1 Twenty Million Dollars ($20,000,000) was paid to Seller
upon converson of the Mezzanine Loan on the First Closing Date;
1.4.2 Four Million Six Hundred Fifty Thousand Dollars
($4,650,000) shall be paid to LC New Roc LP in the form of a partial
release of LC New Roc LP's obligations under the Promissory Note
between Seller and Buyer, dated as of the date hereof (the "EPT
Note"); and
1.4.3 Three Hundred Fifty Thousand Dollars ($350,000) shall be
paid to General Partner at Closing in cash or cash equivalents
pursuant to instructions provided by General Partner to GP Buyer prior
to Closing.
1.5 CLOSING.
1.5.1 TIME AND PLACE. On the terms and subject to the conditions
of this Agreement, the Closing shall take place at the offices of
XxxXxxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxx & Xxxxxxxxxx, LLP,
located at Xxx Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx Xxxxxx, Xxx
Xxxx either (i) within ten (10) days of receipt from GACC of its
consent to the transactions contemplated under this Agreement, or (ii)
if the GACC loan is to be refinanced pursuant to section 4.2 hereof,
the date of such refinancing (the "Closing Date").
1.5.2 DELIVERIES BY SELLER AND GENERAL PARTNER. At the Closing,
Seller and General Partner shall deliver to Buyer the following:
(a) The Organizational Documents of the Company, recently certified by
the Secretary of State of the State of New York and a Certificate of Good
Standing of the Company dated within twenty (20) business days of the
Closing Date issued by the Secretary of State of the State of New York;
(b) A certificate of the Secretary or Assistant Secretary of General
Partner dated the Closing Date certifying (i) the adoption of resolutions
authorizing the transactions contemplated by this Agreement, (ii) the
incumbency and signatures of General Partner officers, and (iii) a true and
correct copy of the bylaws of General Partner in effect on the Closing
Date, all in form and substance reasonably satisfactory to Buyer;
(c) A certificate of the managing member of LC New Roc LP dated the
Closing Date certifying (i) the adoption of resolutions or written consents
of the members authorizing the transactions contemplated by this Agreement,
and (ii) (iii) a true and correct copy of the operating agreement of LC New
Roc LP in effect on the Closing Date, all in form and substance reasonably
satisfactory to Buyer
(d) Certificates executed by Seller, General Partner and LC New Roc LP
dated as of the Closing Date certifying that the conditions to Buyer's
obligation to consummate the transactions contemplated by this Agreement
set forth in Sections 7.1.1 and 7.1.2 have been satisfied;
(e) A written opinion addressed to Buyer from counsel for Seller
substantially in the form attached hereto as Exhibit A;
(f) Second Amended and Restated Limited Partnership Agreement, in
substantially the form attached hereto as Exhibit B (the "Partnership
Agreement"), executed by Seller and General Partner;
(g) Management Agreement in substantially the form attached hereto as
Exhibit C (subject to further modification based upon the requirements of
the lender on a refinancing of existing debt), executed by New Roc
Management, LLC (the "Management Agreement");
(h) The Loan Agreement made by and between LC New Roc LP and
Entertainment Properties Trust in substantially the form attached hereto as
Exhibit D;
(i) Registration Rights Agreement made by and between LC New Roc LP
and Entertainment Properties Trust in substantially the form attached
hereto as Exhibit E;
(j) Estoppel Certificates, in form and substance reasonably acceptable
to Buyer, executed by Company and each of tenants under any Material Lease
pursuant to which the Company is the lessor or sub-lessor; provided,
however, that if a tenant, the City of New Xxxxxxxx, the City of New
Xxxxxxxx Industrial Development Agency, or any Person other than the
Company, executes an Estoppel Certificate in connection with the
acquisition by Buyer of the Old Class A Interests, then an Estoppel
Certificate from such Person shall not be required at the Closing;
(k) Cash or cash equivalents in an amount equal to Three Hundred Fifty
Thousand Dollars ($350,000) in partial payment of the EPT Note; and
(1) Such other documents, instruments and certificates as Buyer may
reasonably request in connection with the transactions contemplated by this
Agreement.
1.5.3 DELIVERIES BY BUYER. At or prior to the Closing, Buyer
shall deliver to Seller, General Partner or LC New Roc LP, as
applicable, the following:
(a) The payment described in Section 1.4.2, which shall be made by
delivery of the EPT Note marked "cancelled";
(b) The payment described in Section 1.4.3;
(c) The Organizational Documents of each of Class A Buyer and GP
Buyer, recently certified by the Secretary of State of the State of
Delaware and a Certificate of Good Standing of Buyer dated within twenty
(20) business days of the Closing Date issued by the Secretary of State of
the State of Delaware;
(d) A certificate of the Secretary or Assistant Secretary of each of
Class A Buyer and GP Buyer dated the Closing Date certifying (i) the
adoption of resolutions by Buyer's board of managers authorizing the
transactions contemplated by this Agreement, and (ii) the incumbency and
signatures of Buyer's officers, all in form and substance reasonably
satisfactory to Seller;
(e) A certificate of an executive officer of each of Class A Buyer and
GP Buyer dated the Closing Date certifying that the conditions to Seller's,
Class B Partner's and General Partner's obligations to consummate the
transactions contemplated by this Agreement set forth in Sections 7.2.1 and
7.2.2 have been satisfied;
(f) The Partnership Agreement, executed by Buyer;
(g) Intentionally Omitted;
(h) A payment to Seller in an amount equal to 70% of the total of the
existing cash reserves and cash in bank accounts, including escrow reserves
for real property taxes (or payments in-lieu of taxes) and lock-box
accounts; and
(i) Such other documents, instruments and certificates as Seller
and/or General Partner may reasonably request in connection with the
transactions contemplated by this Agreement.
1.5.4 Adjustments at Closing:
(a) Adjustments will be made at Closing for normal and customary items
in a commercial real estate transaction, including (but not limited to)
real estate taxes and assessments, payments in-lieu of taxes, rent,
utilities, pre-paid insurance (if any) and the like, with the Seller being
charged and credited for all such items prior to the First Closing Date and
the Company being charged and credited for such items on and after the
First Closing Date. To the extent that there is a positive sum due and
owing to the Seller, such sum shall be paid to Seller by Buyer at Closing.
To the extent that there are sums owed to the Company after such
adjustments, the Seller shall pay such sums to the Company at Closing.
(b) Appropriate adjustments shall be made to the books and records of
the Company to recognize that, from and after the First Closing Date, (i)
the Company shall have no right to collect any receivables, including for
rent due and owing, from any Affiliate of Seller, Class B Partner and/or
Xxxxx X. Xxxxxxxx, or from any third party, including tenants; and (ii) the
Company shall have no obligation to pay any accounts payable to any
Affiliate of Seller, Class B Partner and/or Xxxxx X. Xxxxxxxx, or any third
party. All such accounts receivable and accounts payable are hereby
assigned to Seller. Further, Seller shall be entitled to retain any and all
refunds of fees paid to lenders which may become due upon re-financing.
(c) Any payments received by the Company for rent and/or percentage
rent from any tenant that has accumulated and is past due as of the First
Closing Date shall be credited to Seller, but only if such tenant is then
current on its payment of rent.
(d) Adjustments for payments of percentage rent by the tenants shall
be made at the time such percentage rent is paid. In calculating the
adjustment, the actual tenant receipts for each month being adjusted shall
be used to calculate the amount of the adjustment, so that the adjustment
reflects the actual percentage rent attributable to the period of the
adjustment based upon the tenant receipts for that period.
(e) Seller and/or its Affiliates have paid for certain tenant
improvements at the Real Property, the cost of which is being amortized and
paid by the tenants. To the extent that a tenant terminates a lease and is
required to pay the balance of the unamortized cost of the tenant
improvements, any such payment by tenant for unamortized tenant
improvements shall be made to Seller.
(f) Seller shall be responsible for the payment of all brokerage
commissions and tenant improvements for tenant leases that were in place
prior to the First Closing Date, and the Company shall be responsible for
the payment of brokerage commissions for tenant leases that become due and
payable on and after the First Closing Date. The Company shall also be
responsible for any brokerage commission due upon the renewal of any tenant
lease that was in place prior to the First Closing Date.
(g) All tenant security deposits held by the Company as of the First
Closing Date shall be the property of the Company. Buyer shall receive a
credit for any and all tenant security deposits for which the Company is
responsible that are not left with the Company on the First Closing Date.
1.6 EXPENSES. Seller, Buyer and General Partner shall each pay their
respective expenses incurred in connection with the negotiation, execution,
closing, and performance of this Agreement. Without limitation of the foregoing:
1.6.1 Seller and General Partner shall be responsible for and pay
(a) all transfer taxes payable in connection with the sale and
purchase of the Class A Interests and the GP Interests and (b) all
costs and expenses associated with obtaining the Title Policy, Title
Commitment and Survey pursuant to Section 4.5; and
1.6.2 Buyer shall be responsible for and pay all sales, transfer,
deed, stamp, notary public and other similar taxes, duties and
transfer fees applicable to the transactions contemplated by this
Agreement (other than transfer taxes), including fees to record
transfer documents.
1.6.3 Each of Seller and Buyer shall be responsible for on-half
of the brokerage fee payable in connection with the refinancing of the
Company's existing mortgage loan.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER, CLASS B PARTNER AND GENERAL PARTNER
Seller, Class B Partner and General Partner, jointly and severally, each
makes the following representations and warranties to Buyer:
2.1 CORPORATE ORGANIZATION. The Company is a limited partnership duly
organized, validly existing, and in good standing under the laws of the State of
New York. The Company has all requisite power to own or lease and operate its
properties and to conduct its business as now conducted. The Company does not
have any subsidiaries and does not hold any equity or other ownership interest
in any other entity.
2.2 DUE QUALIFICATION. The Company is duly qualified to do business and is
in good standing under the laws of each jurisdiction in which the nature of its
business or properties makes such qualification necessary. The list of
jurisdictions in which the Company is qualified to do business is set forth in
Schedule 2.2 hereto.
2.3 PARTNERSHIP DOCUMENTATION. Except as set forth on Schedule 2.3 hereto,
(i) copies of the Organizational Documents that have been delivered to Buyer are
complete and correct; (ii) the minute books of the Company shown to Buyer are
complete and reflect all proceedings (including actions taken by written
consent) of the members and managers and all committees thereof of the Company
in all material respects since the Company's organization; and (iii) the
partnership interest transfer records of the Company shown to Buyer are complete
and accurately reflect all transactions in the partnership interests of-the
Company.
2.4 CAPITALIZATION OF THE COMPANY. The capitalization of the Company is as
follows:
(a) GENERAL PARTNER. General Partner has made a Capital Contribution
to the Company in an amount equal to one (1%) percent of the total Capital
Contributions to the Company and, prior to the execution of this Agreement,
holds all of the GP Interests in the Company.
(b) LIMITED PARTNER INTERESTS. Seller and Buyer together hold all of
the Class A Interests of the Company and the Class B Partner holds all of
the Class B Interests of the Company. Upon execution and delivery of the
Partnership Agreement, Seller shall transfer all of the Class A Interests
held by it and the Class B Partner shall transfer all of the Class B
Interests in the Company to LC New Roc LP, all of which shall be converted
to New Class A Interests or New Class B Interests in accordance with the
terms of the Partnership Agreement.
2.5 AUTHORIZATION, EXECUTION AND VALIDITY. This Agreement constitutes the
legal, valid, and binding obligations of the Seller, Class B Partner and the
Company in accordance with its terms. Upon obtaining the consent of the
Company's lender to the Partnership Agreement, Seller, Class B Partner and
General Partner shall have the absolute and unrestricted right, power,
authority, and capacity to execute and deliver this Agreement and the documents
required herein and to perform their respective obligations under this Agreement
and the documents required herein.
2.6 OFFICERS AND DIRECTORS. Schedule 2.6 sets forth a list of all of the
corporate officers and directors of General Partner, the members and managers of
the Seller, the limited and general partners of the Class B Partner, and the
limited and general partners of the Company who are duly elected and/or
qualified to hold such position on the date hereof.
2.7 FINANCIAL STATEMENTS; ABSENCE OF UNDISCLOSED LIABILITIES.
2.7.1 FINANCIAL STATEMENTS. Attached as Schedule 2.7.1 are true
and correct copies of the audited financial statements (the "Baseline
Balance Sheets") of the Company as of December 31, 2002 and the
unaudited financial statements of the Company as of September 30,
2003. Such financial statements present fairly, in all material
respects, the financial condition and the results of operations and
cash flow of the Company as of the respective dates of and for the
periods referred to in such financial statements, all in accordance
with the income tax basis, except as disclosed in notes to such
financial statements.
2.7.2 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
(i) fully reflected or reserved against on the Baseline Balance Sheet
or (ii) disclosed on Schedule 2.7.2, the Company had no Liabilities as
of the date of the Baseline Balance Sheet (December 31, 2002).
2.8 ABSENCE OF CERTAIN CHANGES. Since the date of the Baseline Balance
Sheet, except as set forth on Schedule 2.8, there has been no (a) event or
occurrence that has had a material adverse effect on the Company other than
changes or effects arising out of general economic conditions, (b) material
amendment or termination of any Material Contract, Material Lease or material
Permit relating to the Business other than in the ordinary course of business,
(c) material destruction, damage or other loss to any of the assets of the
Company that is not covered by insurance, (d) material sale, lease, or other
disposition of any of the assets of the Company, other than assets sold, leased
or otherwise disposed of in the ordinary course of business and consistent with
past practice, (e) material purchase or lease of any assets of the Company,
other than assets purchased or leased in the ordinary course of business and
consistent with past practice, or (f) agreement or comm;tment by the Company to
take any action described in this Section 2.8.
2.9 NO CONFLICT; SELLER CONSENTS. Except as set forth on Schedule 2.9 and
upon the consent of the Company's lender, the execution, delivery and
performance by Seller, Class B Partner and General Partner of this Agreement
will not (a) violate any material Law to which any of Seller, Class B Partner,
General Partner or the Company is subject, (b) violate any Organizational
Document, (c) violate any Order to which any of Seller, Class B Partner, General
Partner or the Company is a party or by which any of Seller, Class B Partner,
General Partner or the Company is bound, (d) require any Consent from any
Person, including any Governmental Authority, except for actions required to be
taken by Buyer, (e) breach any Material Contract, Material Lease or material
Permit relating to the Business, or (f) result in the creation of any Lien on
any of the assets of the Company.
2.10 REAL PROPERTY.
2.10.1 REAL PROPERTY. The Company does not own any Real Property.
Schedule 2.10.1 lists all of the real property leased to the Company
("Leased Real Property"). To Seller's, Class B Partner's or General
Partner's Knowledge, all buildings, structures and equipment located
on the Leased Real Property are structurally sound and are in good
operating condition and repair (ordinary wear and tear excepted), and
are usuable in the ordinary course of business.
2.10.2 TITLE TO REAL PROPERTY.
(a) The Company holds a valid leasehold estate pursuant to the Ground
Lease by which the Leased Real Property is leased as shown on Schedule
2.10.1, and enjoys peaceful and undisturbed possession thereunder. A true
and complete copy of the Ground Lease, as amended to date, has been
furnished to Buyer. The Ground Lease is valid, binding, and enforceable in
accordance with its terms, and is in full force and effect. The Company is
the lessee under the Ground Lease by which the Leased Real Property is
leased and owns the leasehold interest created pursuant to such Ground
Lease free and clear of all Liens except Permitted Liens. The Company
validly occupies any improvements in accordance with the terms of such
Ground Lease free and clear of all Liens except Permitted Liens. The
Company has complied with all material obligations thereunder, and there
are no existing defaults by the Company and, except as set forth in
Schedule 2.10.2(a), to Seller's, Class B Partner's or General Partner's
Knowledge, there are no existing defaults by any other party thereunder. No
event has occurred which (whether with or without notice, lapse of time or
the happening or occurrence of any other event) would constitute a default
by the Company, and to Seller's, Class B Partner's or General Partner's
Knowledge, no event has occurred which (whether with or without notice,
lapse of time or the happening or occurrence of any other event) would
constitute a default by any other party thereunder. All consents required
under the Ground Lease in connection with the transactions contemplated by
this Agreement have been, or as of the Closing Date will be, obtained and
furnished in writing satisfactory to Buyer in its sole discretion.
(b) MATERIAL LEASES. Schedule 2.10.2(b)(i) sets forth a complete list
of all Material Leases. The Company is the sub-lessor under the Material
Leases. The Company has complied with all material obligations under the
Material Leases, and there are no existing defaults by the Company and,
except as set forth in Schedule 2.10.2(b)(ii), to Seller's, Class B
Partner's or General Partner's Knowledge, there are no existing defaults by
any other party thereunder. No event has occurred which (whether with or
without notice, lapse of time or the happening or occurrence of any other
event) would constitute a default by the Company, and to Seller's, Class B
Partner's or General Partner's Knowledge, no event has occurred which
(whether with or without notice, lapse of time or the happening or
occurrence of any other event) would constitute a default by any other
party under the Material Leases.
2.10.3 CONDEMNATION PROCEEDINGS. Except as set forth on Schedule
2.10.3, none of Seller, Class B Partner, General Partner, or the
Company have Knowledge of or have received notice of any pending,
proposed or threatened proceedings or governmental or
quasi-governmental actions to condemn or take by the power of eminent
domain (or to purchase in lieu thereof), or otherwise to take or
restrict the right to use or occupy, any of the Real Property.
2.10.4 NOTICE OF DISPUTE OR VIOLATION. Except as set forth on
Schedule 2.10.4, Seller, Class B Partner, General Partner, or the
Company has not received notice of (i) any dispute from any contiguous
boundary owners to the Real Property concerning contiguous boundary
lines; (ii) that any of the Real Property (or the buildings,
structures or improvement thereon), or the Business or operation of
the Company, violates the zoning or planning laws, ordinances, rules
or regulations of the city, county, or state in which they are
located, or any building regulations or codes of such city, county, or
state in which they are located, or any building regulations or codes
of such city, county or state, or land use laws or regulations
applicable to said properties, and to Seller's, Class B Partner's or
General Partner's Knowledge, no such violations exist, or (iii) of any
material claims of other to rights over, under, across, or through any
of the Real Property by virtue of use or prescription. To Seller's,
class B Partner's or General Partner's Knowledge, all Permits,
approvals, authorizations or licenses required or necessary for the
use of any of the Real Property have been obtained and are in full
force and effect.
2.10.5 MATERIAL CONTRACTS. Schedule 2.10.5 sets forth a complete
list of all service and maintenance contracts affecting the Company
and/or the Business and all material utility and management contracts
affecting the Real Property to which Seller, Class B Partner, General
Partner or the Company is a party or to which said Real Property is
subject. All such contracts are currently in fail force and effect,
and there is no default, or action or omission which with the giving
of notice or passage of time or both would constitute a default,
thereunder.
2.10.6 AGREEMENT TO LEASE OR SUBLEASE. Except as set forth on
Schedule 2.10.6, all Real Property is free and clear of any agreements
to sell, lease, or sublease (or to grant an assignment of lease),
options to sell, lease, or sublease (or to grant an assignment of
lease), or rights of first refusal relating thereto. Schedule 2.10.6
sets forth all of the leases and subleases of the Real Property. All
real property with respect to which the Company has an agreement to
purchase, lease or sublease, option to purchase, lease, or sublease,
or right of first refusal relating thereto is set forth on Schedule
2.10.6.
2.10.7 ZONING. Except as set forth on Schedule 2.10.7, to
Seller's, Class B Partner's or General Partner's Knowledge, all Real
Property is currently zoned in the zoning category which permits
operation of the Real Property as now used, operated and maintained.
Seller, Class B Partner, General Partner, or the Company has not
requested, applied for, or given consent to, and there are no pending,
zoning variances or changes with respect to any of the Real Property.
The consummation of the transaction contemplated herein will not
result in a violation of any applicable zoning ordinance or the
termination of any applicable zoning variance now existing, and if the
improvements on the Real Property are damaged or destroyed subsequent
to the Closing, the repair or replacement of same by Buyer to the
condition existing immediately prior to the Closing will not violate
applicable zoning ordinance (assuming there has been no change in such
zoning ordinances).
2.10.8 MATERIAL ENCROACHMENTS. To Seller's, Class B Partner's or
General Partner's Knowledge, all buildings, structures or improvements
owned and/or leased by Seller, , Class B Partner, General Partner or
the Company on any of the Real Property are located entirely within
the property boundary lines of such Real Property, except for minor
encroachments as set forth in the Title Commitment, and do not
materially encroach onto adjoining lands, and there are no materials
encroachments of buildings, structures or improvements from adjoining
lands onto such Real Property.
2.10.9 UTILITIES. To Seller's, Class B Partner's or General
Partner's Knowledge, the Real Property (i) currently has access to, at
or within its property boundary lines to all gas, water, electricity,
storm sewer, sanitary sewer, telephone, and all other utilities
necessary or beneficial to the current operation of the Real Property,
and (ii) are contiguous to and have vehicular and pedestrian access to
and from physically open and publicly dedicated public streets.
2.10.10 CONSTRUCTION. Except as set forth on Schedule 2.10.11, no
construction, improvements, or expansion is currently on-going on any
of the Real Property.
2.10.11 SURVEY. The Company has delivered to Buyer a Land Title
ALTA/ACSM Survey of the Real Property (the "Survey") dated April 3,
2002 and certified to the Company. At the Closing, Seller shall cause
the Company to deliver a certification that there have been no changes
to the Real Property since the date of the Survey. Such Survey and
certification delivered at Closing shall satisfy Buyer with respect to
any obligation of Seller to deliver a survey. Nothing contained herein
shall be construed to prevent Buyer from obtaining a Land Title
ALTA/ACSM Survey at its own cost and expense.
2.11 PERSONAL PROPERTY.
2.11.1 OWNED PERSONAL PROPERTY. Subject to Permitted Liens, the
Company has marketable and indefeasible title to all personal property
owned by the Company and used in the conduct of the Business, other
than (i) property that has been disposed of in the ordinary course of
business, (ii) property that has been disposed of in transactions
disclosed to Buyer prior to the date hereof, and (iii) Leased Personal
Property.
2.11.2 LEASED PERSONAL PROPERTY. Schedule 2.11.2 lists all of the
Company's Material Leases of Leased Personal Property used in the
Business. All such Material Leases of Leased Personal Property are
valid and binding and in full force and effect. There has been no
material breach of any such Material Lease of Leased Personal Property
by the Company or, to Seller's,,-Class B Partner's or General
Partner's Knowledge, any other Person, which breach has not been cured
or waived.
2.12 ACCOUNTS RECEIVABLE. Schedule 2.12 sets forth all Accounts Receivable
of the Company as of October 16, 2003, and the approximate aging of such
Accounts Receivable. Except as set forth on Schedule 2.12, all Accounts
Receivable of the Company reflected on Schedule 2.12 and all Accounts Receivable
of the Company generated after October 16, 2003 that are reflected in the
accounting records of the Company as of the Closing Date represent or will
represent valid obligations arising from sales actually made or services
actually performed or billed for in the ordinary course of the Business. To
Seller's, Class B Partner's or General Partner's Knowledge, all Accounts
Receivable are current and collectible in the ordinary course of business except
to the extent reflected in the reserve for doubtful accounts in the Baseline
Balance Sheet or in Schedule 2.12. The reserve ur doubtful accounts reflected in
the Baseline Balance Sheet has been determined consistent with past practices
and in accordance with GAAP. The Company has good and valid title to the
Accounts Receivable free and clear of all Liens except Permitted Liens. 2.13
CONTRACTS. Schedule 2.13 lists all written Contracts and describes in reasonable
detail all unwritten Contracts to which the Company is a party or the assets of
the Company are subject, meeting any of the following descriptions ("Material
Contracts"):
2.13 CONTRACTS.
2.13.1 Contracts that could, by their terms, require payment or
payments by or to the Company totaling more than Fifty Thousand
Dollars ($50,000.00) during any twelve (12) month period;
2.13.2 Contracts relating to the borrowing or lending of money or
the creation of any guarantee or security interest affecting the
Company;
2.13.3 Contracts entered into by the Company other than in the
ordinary course of its business;
2.13.4 Contracts that are not terminable by the Company prior to
one (1) year from the date hereof,
2.13.5 Contracts that limit the freedom of the Company to compete
in any line of business or to conduct business in any geographic
location;
2.13.6 Contracts relating to the purchase, sale or combination of
any business or line of business (by asset transfer, equity transfer,
merger, consolidation or otherwise);
2.13.7 Contracts relating to any joint venture, partnership or
other cooperative arrangement, with any third parry;
2.13.8 Contracts relating to the lease or sublease of the
Property, including those involving the payment of broker commissions
after the Closing.
Contracts listed or described by Seller in Schedules 2.10.2, 2.10,6, 2.10.7,
2.11.2, and 2.20 will be deemed to have been listed or described in Schedule
2.13. All Material Contracts are valid and binding and in full force and effect.
There has been no material breach of any Contract by the Company or, to
Seller's, Class B Partner's or General Partner's Knowledge, any other Person,
which breach has not been cured or waived
2.14 LITIGATION; ORDERS. Except as set forth on Schedule 2.14, there is no
Action by any Person or by or before any Governmental Authority that is pending
or, to Seller's, Class B Partner's or General Partner's Knowledge, threatened in
writing by, against or affecting the Company or any of its assets. Except as set
forth on Schedule 2.14, the Company is not subject to any Order.
2.15 ENVIRONMENTAL LAWS. Except as disclosed in Schedule 2.15:
2.15.1 The Company is and at all times has (a) been in compliance
with, and has not been in violation of or liable under any
Environmental Law, (b) maintained in effect and complied with any
Permit required by any Environmental Law, and (c) complied with any
consent agreement or Order to which it is a party or by which it is
bound that relates to any Environmental Law.
2.15.2 There is no pending or threatened Action against the
Company, any predecessor, the Business or any Real Property used
therein, related to any Environmental Law. None of the Company,
Seller, Class B Partner, or General Partner has received notice or
other communication from any Governmental Authority or any other
Person that the Company, any predecessor, or the Business is, or may
be considered actually or potentially liable under any Environmental
Law. To the Seller's, Class B Partner's or the General Partner's
Knowledge, there is no basis to suspect that the potential for such
Action exists.
2.15.3 There are no present or past actions, activities,
circumstances, conditions, events or incidents, including without
limitation, any Release or threat of Release of any Hazardous
Substance into the Environment at or from any property or assets in
which the Company or any predecessor has or had any interest, that
could form the basis of any liability under any Environmental Law.
2.15.4 No property or asset in which the Company has or had an
interest has been contaminated by any Hazardous Substance.
2.15.5 There are no Hazardous Substances present on the Real
Property of the Company, including any Hazardous Substances contained
in barrels, tanks, landfills, equipment, or other containers either
temporary or permanent. None of Seller, , Class B Partner, General
Partner or the Company nor any predecessor has permitted or conducted
any activity that could result in the Release of a Hazardous Substance
with respect to the Real Property or any other properties or assets in
which the Company or any predecessor has or had an interest.
2.15.6 The Real Property of the Company contains no underground
storage tanks.
2.15.7 No asbestos or asbestos-containing materials are present
at any property in which the Company has an interest.
2.15.8 No polychlorinated biphenyls have been present at any
property in which the Company has an interest, including without
limitation in connection with the use of hydraulic equipment,
transformers, capacitors or other equipment.
2.15.9 All on-site and off-site locations where the Company and
any predecessor have used, stored, disposed of or arranged for the
disposal of Hazardous Substances are identified in Schedule 2.15.
2.16 OTHER LAWS. The Company has not failed, in any material respect, to
(a) comply with any material Other Law or (b) maintain in effect and comply with
any Permit required by any Other Law. Schedule 2.16 sets forth all material
Permits (including all Permits related to Environmental Law) owned or held by
the Company. No action is pending or, to Seller's, Class B Partner's or General
Partner's Knowledge, threatened to revoke or limit any such Permit which, if
adversely determined, would be material to the business of the Company. All of
the Company's Permits are valid and in full force and effect and the Company is
not in default, and no condition exists that with notice or lapse of time or
both would constitute a default, under such Permits.
2.17 INTELLECTUAL PROPERTY.
2.17.1 OWNED INTELLECTUAL PROPERTY. Schedule 2.17.1 sets forth a
true and complete list of all Intellectual Property that is owned by
the Company and used exclusively in the conduct of the Business.
Except as set forth on Schedule 2.17.1, (a) the Company owns all
right, title and interest in and to such Intellectual Property, (b)
the Company has not infringed or misappropriated any Intellectual
Property of any other Person and (c) as of the date hereof, no Action
is pending or, to Seller's, Class B Partner's or General Partner's
Knowledge, threatened asserting any such infringement or
misappropriation with respect to Intellectual Property by the Company.
2.17.2 LICENSES; INFRINGEMENT. Schedule 2.17.2 sets forth a true
and complete list of all licenses for Intellectual Property used by
the Company in the conduct of the Business. All such licenses are
valid and in full force and effect. There is no pending, or to
Seller's, Class B Partner's or General Partner's Knowledge, threatened
Action against the Company contesting its rights to or the validity of
any such Intellectual Property that it licenses.
2.17.3 EMPLOYEES; EMPLOYMENT AGREEMENTS AND POLICIES The Company
does not have, and has never had, any employees. The Company has no
obligation, written or oral, to employ any person or pay any
compensation or other benefits.
2.18 TAXES. All federal, state, local and foreign tax returns, reports,
declarations and forms relating to the Company or any combined, consolidated,
affiliated or unitary tax group of which the Company is or has been a member
that were required to be filed prior to the date hereof ("Returns") have been
accurately prepared in all material respects and timely filed. All Taxes that
have become due for the periods covered by the Returns and all deficiencies and
assessments for any amount of Taxes that are or would become payable by the
Company or chargeable as a Lien upon any of the Company's assets have been duly
and timely paid. Except as set forth on Schedule 2.18, the Company is not the
beneficiary of any extension of time within which to file any Return. The
Company has not made any material payments, is not obligated to make any
material payments and is not a party to any agreement that under certain
circumstances could obligate it to make any material payments that will not be
deductible under Section 280(G) of the Code. No event has occurred or come to
the attention of Seller or General Partner that adversely impacts the Company's
current tax status as a partnership and not as an "association taxable as a
corporation."
2.19 INSURANCE. Schedule 2.19 contains a correct and complete list of all
insurance policies of the Company concerning its businesses and property. These
policies are in the amounts set forth in Schedule 2.19. The Company has
maintained and now maintains: (a) insurance on all assets and business of a type
customarily insured, covering property damage and loss of income by fire or
other casualty; and (b) adequate insurance protection against all liabilities,
claims and risks against which it is customary to insure. Seller is not in
default with respect to payment of premiums on any such policy. Except as set
forth in Schedule 2.19, no claim is pending under any such policy.
2.20 AFFILIATE AGREEMENTS. Schedule 2.20 lists each Contract between the
Company and (a) Seller, (b) General Partner, (c) Class B Partner, (d) any
Affiliate of the Company, or (e) any Affiliate of Seller, Class B Partner or
General Partner which is currently in effect.
2.21 BROKERS. Except as set forth in Schedule 2.21, which schedule states
which party is responsible for payment of any fees and the amount of such fees
that would be payable by such party, no person is or will become entitled to
receive any brokerage or finder's fee, advisory fee or other similar payment for
the transactions contemplated by this Agreement by virtue of having been engaged
by or acted on behalf of the Company, Seller, Class B Partner or General
Partner.
2.22 CONDITION OF ASSETS. The buildings, plants, structures and equipment
of the Company are structurally sound, in good operating condition and repair,
and are adequate for the uses to which they are being put, and none of such
buildings, plants, structures or equipment is in need of maintenance or repairs
except for ordinary, routine maintenance and repairs that are not material in
nature or cost.
2.23 CUSTOMERS, VENDORS AND SUPPLIERS. The Company has not been informed
that any sl~iuficant Customer, vendor or supplier of the Company intends to
discontinue or substantially alter its relationship with the Company.
2.24 BANK ACCOUNTS. Schedule 2.24 sets forth each bank, savings institution
and other financial institution with which the Company has an account or safe
deposit box and the names of all persons authorized to draw thereon or to have
access thereto. Except as disclosed on Schedule 2.26, the Company has not given
any revocable or irrevocable powers of attorney or similar grant of authority to
any Person relating to the Company for any purpose whatsoever.
2.25 DISTRIBUTIONS. Schedule 2.25 sets forth by date, amount and payee,
each distribution made in cash or in any other form by the Company to, on behalf
of, at the direction of, or for the benefit of, the Seller, Class B Partner
General Partner, or any other partner of the Company since the date of the
Baseline Balance Sheet.
2.26 BOOKS AND RECORDS. All books and records relating to the ownership and
operation of the Company have been maintained substantially in accordance with
applicable Law, comprise all of the books and records relating to the ownership
and operation of the Company's Business.
2.27 REPRESENTATIONS AND WARRANTIES NOT MISLEADING. No representation or
warranty of Seller, Class B Partner or General Partner contained in this
Agreement omits to state any material fact necessary to make the statements made
herein or therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to Seller, Class B
Partner and General Partner:
3.1 ORGANIZATION; POWER AND AUTHORITY. GP Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
Class A Buyer is a limited liability company duly organized, validly existing
and in good standing under the laws of Delaware. Buyer has all requisite power
needed to execute, deliver and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby to be consummated by it.
3.2 AUTHORIZATION; EXECUTION AND VALIDITY. The execution, delivery and
performance by Buyer of this Agreement and the consummation by Buyer of the
transactions contemplated hereby to be consummated by it have been duly
authorized by all necessary company action. This Agreement has been duly and
validly executed and delivered by Buyer, constitutes a valid and binding
obligation of Buyer and is enforceable against Buyer in accordance with its
terms, except to the extent that the enforcement hereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (ii) general
principles of equity regardless of whether enforceability is considered in a
proceeding in equity or at law.
3.3 NO CONFLICT; BUYER CONSENTS. The execution, delivery and performance by
Buyer of this Agreement will not (a) violate any Law to which Buyer is subject,
(b) violate any Organizational Document of Buyer, (c) violate any Order to which
Buyer is a party or by which it is bound, (d) require any Consent from any
Governmental Authority, or (e) breach any material Contract to which Buyer is a
party or by which it is bound.
3.4 LITIGATION; ORDERS. There is no Action by any Person or by or before
any Governmental Authority that is pending or, to the knowledge of Buyer,
threatened in writing by, against or affecting Buyer or any of its properties,
assets, operations or business which would, if adversely determined, have a
material adverse effect on Buyer's ability to consummate the transactions
contemplated by this Agreement, nor is Buyer subject to any Order which would
have any such effect.
3.5 BROKERS. No Person is or will become entitled to receive any brokerage
or finder's fee, advisory fee or other similar payment for the transactions
contemplated by this Agreement by virtue of having been engaged by or acted on
behalf of Buyer.
ARTICLE 4
COVENANTS OF SELLER, CLASS B PARTNER, GENERAL PARTNER AND THE COMPANY
4.1 FORMATION OF LC NEW ROC LP. Prior to the Closing, Seller and the Class
B Partner shall have formed or caused to be formed LC New Roc LP, and shall have
assigned, transferred and sold all of their respective partnership interests in
the Company to LC New Roc LP. Seller and the Class B Partner shall convert or
cause to be converted all partnership interests so transferred into New Class A
Interests and New Class B Interests, respectively, each having the capital
account balance set forth in the Partnership Agreement.
4.2 COOPERATION BY SELLER AND GENERAL PARTNER. From the date hereof through
the Closing Date, each of Seller, the Class B Partner, General Partner and the
Company shall use all commercially reasonable efforts to take all actions and to
do all things necessary or advisable to consummate the transactions contemplated
by this Agreement and to cooperate with Buyer in connection with the foregoing,
including using commercially reasonable efforts to obtain all of the Consents.
Unless required for consummation of the transactions contemplated by this
Agreement, none of Seller, Class B Partner or General Partner shall have any
obligation to amend, or cause to be amended, any Contract, to change, or cause
to be changed, any Permit, or to make, or cause to be made, any payment to
obtain any Consent; provided, however, that neither Seller nor General Partner
shall be required to incur unreasonable expense. Upon the request of Buyer, each
of Seller, the Class B Partner, General Partner and the Company shall use all
commercially reasonable efforts to take such actions and to do such things as
may be reasonably necessary or advisable to refinance the indebtedness owed to
German American Capital Corporation ("GACC") pursuant to the Loan and Security
Agreement by and between the Company and GACC, dated as of April 12, 2002, on
terms acceptable to Buyer.
4.3 PRE-CLOSING ACCESS TO INFORMATION. From the date hereof through the
Closing Date, Seller, Class B Partner, General Partner and the Company shall
afford to Buyer, its accountants and its counsel access, in a reasonable manner,
upon reasonable notice and at reasonable times, to all of the properties, books
and records of the Company.
4.4 CONDUCT OF BUSINESS. From the date hereof through the Closing Date,
except as set forth on Schedule 4.4, Seller, Class B Partner, General Partner,
and the Company will, in connection with the conduct of the Business, use
commercially reasonable efforts to: (a) preserve substantially its relationships
with the Company's suppliers, customers and Employees; (b) maintain
substantially the same amounts and kinds, in the aggregate, of existing
insurance coverage; (c) perform its obligations under the Material Contracts and
material Permits in all material respects; (d) comply with all applicable Laws
in all material respects; and (e) carry on the Business in the ordinary course
and consistent with past practice. The Company will not, and Seller, Class B
Partner and General Partner shall not permit the Company in connection with the
conduct of the Business, without the prior written consent of Buyer:
4.4.1 incur or guarantee any debt relating to the Business except
accounts payable incurred in the ordinary course of business and
consistent with past practice;
4.4.2 sell, assign or transfer, or permit the creation of any
Lien on, any of the assets of the Company, except for any such assets
disposed of in the ordinary course of business and consistent with
past practice;
4.4.3 enter into any Material Contract or Material Lease relating
to the Business outside the ordinary course of business and
inconsistent with past practice;
4.4.4 amend or terminate any Material Contract, Material Lease or
material Permit relating to the Business in a manner that is not in
the ordinary course of business and consistent with past practice;
4.4.5 employ any person as an employee;
4.4.6 pay any distribution in cash or any other form to, on
behalf of, at the direction of, or for the benefit of, any of the
Seller, Class B Partner or General Partner except in accordance with
Section 1 of the Side Agreement;
4.4.7 waive any material right, forgive any material debt (other
than intercompany debt) or release any material claim relating to the
Business, except in the ordinary course of business and consistent
with past practice;
4.4.8 accelerate or delay the sale of services or equipment
constituting the conduct of the Business or the collection of accounts
receivable of the Company in a manner that is not in the ordinary
course of business and consistent with past practice;
4.4.9 take any action that would cause or result in, or that
would reasonably be expected to cause or result in (i) any of the
representations or warranties set forth in this Agreement not to be
true and correct as of the Closing Date, or (ii) the nonperformance in
any material respect of Seller's, Class B Partner's or General
Partner's covenants set forth in this Agreement;
4.4.10 take any action that would cause the Company to be deemed
an association taxed as a corporation pursuant to the Code or
otherwise materially alter or effect the tax treatment of the Company
or its assets; or
4.4.11 agree to take any of the actions described in Sections
4.4.1 through 4.4.10.
4.5 FURTHER ASSURANCES. Subject to the other terms and conditions of this
Agreement, at any time and from time to time, whether before or after the
Closing, Seller, Class B Partner, General Partner and the Company shall execute
and deliver all instruments and documents and take all other action that Buyer
may reasonably request to consummate or to evidence the consummation of the
transactions contemplated by this Agreement, provided that none of Seller, Class
B Partner or General Partner shall be required to incur unreasonable expense in
connection with its obligation under this Section 4.5.
4.6
Intentionally Omitted
4.7 SUPPLEMENTS TO SCHEDULES. If any event occurs or condition changes that
causes any of its representations or warranties in this Agreement to be
inaccurate, Seller Class B Partner, and/or General Partner shall notify Buyer
thereof in writing. Seller Class B Partner, and General Partner may supplement
the Schedules to account for any such event or change. If Seller Class B
Partner, or General Partner gives written notice to Buyer of any proposed
supplement to the Schedules and Buyer fails to deliver a written objection to
such proposed supplement within ten (10) business days of such notice, Buyer
shall be deemed to have consented to such proposed supplement.
4.8 NOTICE OF BREACH. If at any time on or before the Closing Date, Seller
Class B Partner, or General Partner obtain any knowledge (whether through
investigation or otherwise) of any fact, condition or event constituting a
breach of any representation or warranty of Buyer set forth herein or any
document referred to herein, then Seller Class B Partner, and General Partner
shall immediately upon obtaining such knowledge inform Buyer thereof and of such
breach.
4.9 EXCLUSIVE DEALING. From the date hereof until the earlier of (i) the
termination of the Agreement pursuant to Article 8 hereof, or (ii) the Closing
Date, Seller, Class B Partner, General Partner and the Company shall not, and
the Seller, Class B Partner, General Partner and Company shall not authorize or
permit any of their respective officers, directors or employees or any
investment banker, financial advisor, attorney, accountant or other
representative retained by Seller, Class B Partner, General Partner or the
Company to, initiate, solicit, negotiate or encourage (including by way of
furnishing information), or take any other action to facilitate or entertain,
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any proposal or offer to acquire all or any part of the
Business or assets of the Company, or all or any part of the Class A Interests,
the GP Interests or other equity interest of the Company, whether by merger,
combination, whether for cash, securities or any other consideration or
combination thereof (any such transaction being referred to herein as an "Other
Acquisition Transaction") or agree to endorse or recommend any such Other
Acquisition Transaction. It shall not be a violation of this Section for Seller,
Class B Partner, General Partner or the Company to inform a Person making an
unsolicited offer that Seller, General Partner or the Company, as the case may
be, cannot then discuss any such proposal.
ARTICLE 5
COVENANTS OF BUYER
5.1 COOPERATION BY BUYER. From the date hereof through the Closing Date,
Buyer shall use commercially reasonable efforts to take all actions and to do
all things necessary or advisable to consummate the transactions contemplated by
this Agreement and to cooperate with Seller Class B Partner, and General Partner
in connection with the foregoing, including using commercially reasonable
efforts to obtain all of the Consents, provided that Buyer shall not be required
to incur unreasonable expense in connection with its obligation under this
Section 5.1.
5.2 FURTHER ASSURANCES. Subject to the other terms and conditions of this
Agreement, at any time and from time to time, whether before or after the
Closing, Buyer shall execute and deliver all instruments and documents and take
all other action that Seller Class B Partner, and General Partner may request,
to the extent commercially reasonable, to consummate or to evidence the
consummation of the transactions contemplated by this Agreement, provided that
Buyer shall not be required to incur unreasonable expense in connection with its
obligation under this Section 5.2.
5.3 NOTICE OF BREACH. If at any time on or before the Closing Date, Buyer
obtains any knowledge (whether through investigation or otherwise) of any fact,
condition or event constituting a breach of any representation or warranty of
Seller Class B Partner, and/or General Partner set forth herein or any document
referred to herein, then Buyer shall immediately upon obtaining such knowledge
inform Seller Class B Partner, and General Partner thereof and of such breach.
ARTICLE 6 MUTUAL
COVENANTS
6.1 Governmental Matters.
6.1.1 GOVERNMENTAL APPROVALS. The Parties shall comply with any
other Laws which are applicable to any of the transactions
contemplated hereby and pursuant to which government notification or
approval of such transaction is necessary. The Parties shall cooperate
with one another in providing any information about the Company which
is required for this purpose and in promptly fling, separately or
jointly, any applications for such government notification or
approval. The Parties shall use commercially reasonable efforts to
resolve such objections, if any, as may be asserted by any
Governmental Authority with respect to the transactions contemplated
hereby.
6.1.2 NO REQUIRED DISPOSITIONS OR OTHER ADVERSE ACTIONS.
Notwithstanding any other provision of this Agreement to the contrary,
none of the Parties nor their respective Affiliates shall be
obligated, in order to obtain any Permit or other approval by any
Governmental Authority that is necessary to consummate the
transactions contemplated hereby, to (a) hold, separate, sell or
otherwise dispose or make reductions in the scope or use of their
respective businesses, assets or properties, (b) materially prejudice
the benefits to be received from the transactions contemplated hereby,
or (c) take any action or refrain from taking any action that may have
a material adverse effect on their respective business, assets,
results of operations or financial condition.
6.2 TAX INFORMATION AND ASSISTANCE. Seller, Class B Partner, General
Partner, the Company and Buyer shall provide each other with such commercially
reasonable assistance as may be requested by them in connection with the
preparation of any Tax Return, any Tax audit or other examination by any
Governmental Authority, or any judicial or administrative proceedings related to
liability for Taxes. Seller, Class B Partner, General Partner, the Company and
Buyer shall retain and provide each other upon written request with records or
information which may be relevant to such preparation, audit, examination,
proceeding or determination. Such assistance shall include making employees
available on a mutually convenient basis to provide and explain such records and
information and shall include providing copies of any relevant Tax Returns and
supporting work schedules. The Party requesting assistance hereunder shall
reimburse the other for reasonable out-of-pocket expenses incurred in providing
such assistance.
6.3 BOOKS AND RECORDS.
6.3.1 ACCESS. For a period of two (2) years after the Closing,
each Party shall provide each of the other Parties with commercially
reasonable access during normal business hours to its books and
records relating to the Company (other than books and records
protected by the attorney-client privilege) to the extent that they
relate to the condition or operation of the Business prior to the
Closing and are requested by such Party to prepare its Returns, to
respond to Third Party Claims or for any other legitimate purpose
specified in writing. Each Party shall have the right, at its own
expense, to make copies of any such books and records.
6.3.2 CONFIDENTIALITY. Each Party may take such action which it
deems to be commercially reasonable to separate or redact information
unrelated to the Business from documents and other materials requested
and made available pursuant to this Section 6.3 and may condition the
other Party's access to documents and other materials that it deems
confidential to the execution and delivery of an agreement by the
other Party not to disclose or misuse such information.
6.3.3 ASSISTANCE. Each Party shall, upon receipt of a
commercially reasonable request in writing and at the requesting
Party's expense, make personnel reasonably available to assist in
locating and obtaining any books and records relating to the Company
to the extent that they relate to the condition or operation of the
Business prior to the Closing and make personnel reasonably available
whose assistance, participation or testimony is reasonably required in
anticipation of, preparation for or the prosecution or defense of any
Third Party Claim in which the other Party does not have any adverse
interest.
ARTICLE 7
CONDITIONS PRECEDENT TO CLOSING
7.1 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. The obligation of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction of the following conditions, any of which may be waived in
writing by Buyer.
7.1.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Seller Class B Partner, and General
Partner set forth in this Agreement shall be true and correct as of
the date hereof and as of the time of the Closing, except to the
extent such representations expressly relate to an earlier date.
7.1.2 PERFORMANCE OF COVENANTS. Seller, Class B Partner, General
Partner and the Company shall have performed and complied in all
material respects with all covenants and agreements required by this
Agreement to be performed by Seller, Class B Partner, General Partner
or the Company prior to or at the Closing.
7.1.3 DELIVERY OF DOCUMENTS. Seller shall have delivered to Buyer
the documents required by Sections 1.5.2.
7.1.4 NO ORDER. No Order shall be in effect forbidding or
enjoining the consummation of the transactions contemplated hereby.
7.1.5 CONSENTS. Seller shall have obtained (i) the consent of the
New York State Urban Development Corporation, d/b/a Empire State
Development Corporation, to the transfer of the A Interests and the GP
Interests pursuant to Section 1.13 of the Leasehold Building Loan and
Fee Mortgage, Security Agreement and Financing Statement dated as of
January 30, 1998, and (ii) the consent of GACC to the Partnership
Agreement, and (iii) all other required Consents to the consummation
of the transactions contemplated by this Agreement, and shall have
delivered all such Consents in a form satisfactory to Buyer in its
sole discretion.
7.1.6 Intentionally Omitted.
7.2 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligation of Seller,
Class B Partner, and General Partner to consummate the transactions contemplated
by this Agreement shall be subject to the satisfaction of the following
conditions, any of which may be waived in writing by Seller, Class B Partner
and/or General Partner, as appropriate.
7.2.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Buyer set forth in this Agreement
shall be true and correct as of the date hereof and as of the time of
the Closing, except to the extent such representations expressly
relate to an earlier date.
7.2.2 PERFORMANCE OF COVENANTS. Buyer shall have performed and
complied in all material respects with all covenants and agreements
required by this Agreement to be performed by Buyer prior to or at the
Closing.
7.2.3 DELIVERIES. Buyer shall have delivered to Seller, LRC New
Roc LP and to General Partner, as appropriate, the payments and
documents required by Section 1.5.3.
7.2.4 NO ORDER. No Order shall be in effect forbidding or
enjoining the consummation of the transactions contemplated hereby.
7.3 IF CONDITIONS NOT SATISFIED. In the event that (a) any condition set
forth in this Article 7 is not satisfied, (b) the failure of such condition to
be satisfied is waived in writing by the Party entitled to the benefit of such
condition, and (c) the Parties nevertheless consummate the transactions
contemplated by this Agreement to take place at the Closing, then the Parties
shall be deemed to have waived any claim for Damages or other relief only to the
extent that such Damages or other relief relate solely and directly to such
condition that was so waived in writing.
ARTICLE 8
TERMINATION PRIOR TO CLOSING DATE
8.1 TERMINATION. This Agreement may be terminated prior to the Closing Date
only as follows:
8.1.1 By either Buyer or Seller if a material Breach of any
provision of this Agreement has been committed by the other Party or
Parties and such breach has not been waived;
8.1.2 By the mutual written consent of the Buyer and Seller;
8.1.3 By any Party immediately upon written notice to the other
Parties if an Order is issued forbidding or enjoining the consummation
of the transactions contemplated hereby which has become final and
non-appealable;
8.1.4 By Buyer upon written notice to Seller if any of the
conditions in Section 7.1 has not been satisfied on or before the
Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such
condition in writing on or before such date; provided, however, that,
upon receiving written notice of failure to satisfy any of the
conditions in Section 7.1, Seller shall have thirty (30) days to cure
such failure prior to any termination of this Agreement; or
8.1.5 By Seller upon written notice to Buyer, if any of the
conditions in Section 7.2 has not been satisfied on or before the
Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Seller, Class B Partner,
or General Partner to comply with its obligations under this
Agreement) and Seller has not waived such condition in writing on or
before such date.
8.2 EFFECT OF TERMINATION. If this Agreement terminates pursuant to Section
8.1, no Party shall have any liability or obligation to the other Parry
hereunder; provided, however, that no such termination shall relieve any Party
of any liability or Damages resulting from a willful breach of this Agreement
and Buyer shall be entitled to injunctive-relief, specific performance or other
equitable relief (without the posting of any bond) for any breach of this
Agreement by Seller, Class B Partner, or General Partner prior to the Closing.
ARTICLE 9
INDEMNIFICATION
9.1 INDEMNIFICATION BY SELLER AND GENERAL PARTNER. Subject to the other
provisions of this Article 9, from and after the Closing Date, Seller, Class B
Partner and General Partner shall jointly and severally indemnify and hold
Buyer, the Company, their Affiliates and their respective employees, officers,
directors and agents (the "Buyer Indemnitees") harmless from and against any and
all Damages suffered by any Buyer Indemnitee arising out of:
9.1.1 the breach of any representation or warranty made by
Seller, Class B Partner or General Partner in this Agreement or in any
certificate required to be executed and delivered by Seller, Class B
Partner or General Partner at the Closing pursuant to this Agreement;
and
9.1.2 the failure of Seller, Class B Partner or General Partner
to perform any covenant or obligation by Seller, Class B Partner or
General Partner contained in this Agreement or any other agreement
required to be executed and delivered by Seller, Class B Partner or
General Partner at the Closing pursuant to this Agreement.
To the extent of Seller's, Class B Partner's or General Partner's indemnity
obligations hereunder regarding environmental matters arising or existing prior
to the Closing, Seller, Class B Partner and General Partner hereby (i) waive any
and all claims they may now, or in the future, have over and against the Buyer
Indemnitees and (ii) release Buyer Indemnitees for any such liability they may
now or in the future, have which may be asserted by Seller, Class B Partner or
General Partner under such common law or statutory indemnity or contribution
rights, including, without limitation, rights to private cost recovery under
Section 107 of CERCLA and a right of contribution under Section 113 of CERCLA.
9.2 INDEMNIFICATION BY XXXX. Subject to the other provisions of this
Article 9, from and after the Closing Date, Buyer shall indemnify and hold the
Company, Seller, Class B Partner and General Partner, their respective
Affiliates, employees, officers, directors and agents (the "Seller Indemnitees")
harmless from and against any Damages suffered by any Seller Indemnitee arising
out of:
9.2.1 the breach of any representation or warranty made by Buyer
in this Agreement or in any certificate required to be executed and
delivered by Buyer at the Closing pursuant to this Agreement; and
9.2.2 the failure of Buyer to perform any covenant or obligation
by Buyer contained in this Agreement or any other agreement required
to be executed and delivered by Buyer at the Closing pursuant to this
Agreement.
9.3 NOTICE AND RESOLUTION OF CLAIMS.
9.3.1 NOTICE. Each person entitled to indemnification pursuant to
Section 9.1 or Section 9.2 (an "Indemnitee") shall promptly give
written notice to the indemnifying Party after obtaining knowledge of
any claim that it may have pursuant to this Article 9. Such notice
shall set forth in reasonable detail the claim and the basis for
indemnification.
9.3.2 RIGHT TO ASSUME DEFENSE. If such claim for indemnity shall
arise from a claim or Action involving a third party (a "Third Party
Claim"), the Indemnitee shall permit the indemnifying Party to assume
its defense. If the indemnifying Party assumes the defense of such
Third Party Claim, it shall take all steps necessary to investigate,
defend or settle such Action and shall, subject to Section 9.4, hold
the Indemnitee harmless from and against any and all Damages caused by
or arising out of any settlement approved by the indemnifying Party or
any judgment in connection with such Third Party Claim. Without the
written consent of the Indemnitee, the indemnifying Party shall not
consent to entry of any judgment or enter into any settlement that
does not include an unconditional and complete release of the
Indemnitee by the claimant or plaintiff making the Third Party Claim
without the imposition of any injunction or other equitable relief
against the Indemnitee. The Indemnitee may participate in such defense
or settlement through its own counsel, but at its own expense provided
that if there is an actual conflict of interest between Indemnitee and
the indemnifying party with respect to such Third Party Claim, the
Indemnitee may retain its own counsel at the indemnifying party's
expense.
9.3.3 FAILURE TO ASSUME DEFENSE. Failure by the indemnifying
Party to notify the Indemnitee of its election to assume the defense
of any Third Party Claim within thirty (30) days after its receipt of
notice thereof pursuant to Section 9.3.1 shall be deemed a waiver by
the indemnifying Party of its right to assume the defense of such
Third Party Claim. In such event, the Indemnitee may defend against
such Third Party Claim in any manner it deems appropriate. The
Indemnitee may settle such Third Party Claim or consent to the entry
of any judgment with respect thereto, provided that it acts in good
faith and in a commercially reasonable manner.
9.3.4 ACCESS TO PROPERTIES FOR ENVIRONMENTAL PURPOSES. In the
event either the Seller, Class B Partner or General Partner is
required under the terms of this Section 9.1 to indemnify the Buyer
Indemnitees regarding any environmental matter or any breaches or
defaults of the environmental representations and warranties in
Section 2.15 that would require the Seller or General Partner to have
access to the property then owned or leased by the Buyer Indemnitees,
Seller, Class B Partner or General Partner must negotiate an access
agreement with the Buyer Indemnitees, to the Buyer Indemnitees'
satisfaction, to effectuate the Seller's, Class B Partner's or General
Partner's indemnity obligations herein. Buyer Indemnitees shall have
the right, in their sole discretion, to control any required
investigations, studies, remediation and monitoring at the Seller's,
Class B Partner's or General Partner's expense. In the event the Buyer
Indemnitees elect to allow the Seller, Class B Partner or General
Partner to control such activities, they shall carry out such work in
a manner consistent with the requirements of the relevant Governmental
Authority, in a timely and diligent fashion, and shall remediate any
property to cleanup levels acceptable to Buyer and in compliance with
Environmental Law. There shall be no deed restriction, or other
limitation upon the further use of any real property, or any type of
notice recorded in the title records regarding any residual
contamination without the Buyer Indmenitees' consent.
9.4 SURVIVAL. Neither Party shall have any obligation to indemnify any
Indemnitee pursuant to Sections 9.1.1 or 9.2.1 for the breach of any
representation or warranty unless such Indemnitee has given written notice to
such Party of such breach in accordance with Section 9.3.1 prior to the
expiration of three (3) years after the Closing Date, in the case of all
representations and warranties except:
(a) those representations and warranties set forth in Section 2.15 in
respect of which such notice must be given prior to the fifth anniversary
of the Closing Date;
(b) those representations and warranties set forth in Section 2.4,
Section 2.5 or Section 3.2 which shall survive indefinitely; and
(c) those representations and warranties set forth in Section 2.18
which shall survive until the expiration of the statutory limitation
periods pertaining to the respective events which may constitute a breach
of such representations and warranties.
9.5 RIGHTS CUMULATIVE. The rights of the Parties under this Article 9 shall
be deemed to be in addition to such other rights as they may have under this
Agreement or otherwise to the extent not inconsistent with this Article 9.
9.6 OTHER INDEMNITEES. Buyer shall cause Buyer Indemnitees, and Seller,
Class B Partner and General Partner shall cause Seller Indemnitees, to comply
with the provisions and to abide by the limitations set forth in this Article 9.
ARTICLE 10
MISCELLANEOUS
10.1 SEVERABILITY. If any provision of this Agreement as applied to any
Party or to any circumstance shall be held invalid, illegal or unenforceable by
any court of competent jurisdiction, (i) the validity, legality and
enforceability of the remaining provisions of this Agreement will remain in full
force and effect and (ii) the application of such provision to any other part or
to any other circumstance shall not be affected or impaired thereby.
10.2 SUCCESSORS AND ASSIGNS. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the Parties; provided, however, that neither this Agreement nor any
of the rights or obligations thereunder may be assigned by any Party without the
prior written consent of the other Party. Any assignment in violation of this
Section 10.2 shall be null and void.
10.3 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which, when taken together, shall constitute one and the same
agreement.
10.4 HEADINGS. The table of contents, captions and headings used in this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction or
interpretation hereof.
10.5 WAIVER. Any of the terms or conditions of this Agreement may be waived
in writing at any time by the Party which is entitled to the benefits thereof.
Neither the failure nor any delayby any Party in exercising any right, power or
privilege under this Agreement or the documents referred to in this Agreement
will operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power or privilege will preclude any other
or further exercise of such right, power or privilege or the exercise of any
other right, power or privilege.
10.6 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement shall create
or confer upon any Person, other than the Parties or their respective successors
and permitted assigns, any legal or equitable rights, remedies, obligations,
liabilities or claims under or with respect to this Agreement, except as
expressly provided herein.
10.7 NOTICES. Unless otherwise provided herein, any notice, request,
waiver, instruction, consent or other document or communication required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given and received (a) when delivered by hand (with
written confirmation of receipt); (b) when sent by facsimile transmission,
provided it is also sent by verifiable overnight delivery service not later than
the next day; or (c) when received by the addressee, if sent by verifiable
overnight delivery service, as follows:
If to Seller, Class B Partner, General Partner or the Company:
c/o Cappelli Enterprises, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Delbello, Donnellan, Weingarten, Tartaglia, Wise and Xxxxxxxxxx
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000 Facsimile:
(000) 000-0000
with a copy to:
If to Buyer:
Entertainment Properties Trust
00 Xxxx Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy to:
Shook, Hardy & Bacon, LLP
0000 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 000000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
or at such other address or facsimile number for a Party as shall be specified
in writing by that Party.
10.8 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the Laws of the State of New York applicable to agreements made
and to be performed wholly within such jurisdiction, without regard to conflicts
of law principles.
10.9 INTERPRETATION.
10.9.1 Unless specifically stated otherwise, references to
Articles, Sections, Exhibits and Schedules refer to Articles,
Sections, Exhibits and Schedules in this Agreement. References to
"includes" and "including" mean "includes without limitation" and
"including without limitation."
10.9.2 No provision of this Agreement shall be interpreted in
favor of, or against, either of the Parties by reason of the extent to
which either such Party or its counsel participated in the drafting
thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft hereof or thereof.
10.10 PUBLIC ANNOUNCEMENTS. Seller and Buyer shall agree on the terms of
any press releases or other public announcements related to this Agreement and
shall consult with each other before issuing any press releases or other public
announcements related to this Agreement. In addition, the Parties agree to
consult with, and provide commercially reasonable cooperation to, each other
with respect to the form and content of any communication to employees,
customers, suppliers and others having dealings with the Company concerning this
Agreement and the transactions contemplated thereby through the Closing Date.
10.11 ENTIRE AGREEMENT. This Agreement, together with the Schedules and
Exhibits hereto, constitutes the sole understanding of the Parties with respect
to the matters contemplated hereby and thereby and supersedes and renders null
and void all prior agreements and understandings, written and oral, between the
Parties with respect to the subject matter hereof and thereof. No Party shall be
liable or bound to any other Party in any manner by any promises, conditions,
representations, warranties, covenants, agreements and understandings, except as
specifically set forth herein or therein.
10.12 AMENDMENT. No amendment, modification or alteration of the terms or
provisions of this Agreement, including any Schedules and Exhibits, shall be
binding unless the same shall be in writing and duly executed by the Party
against whom such amendment, modification or alteration is sought to be
enforced.
ARTICLE 11
DEFINITIONS
For purposes of this Agreement, the terms set forth below shall have the
following meanings:
11.1 "ACCOUNTS RECEIVABLE" means all accounts receivable, trade
receivables, notes receivable and other receivables, which in any case are
payable as a result of any obligation under any lease by or as a result of goods
sold or services provided, or billed for, by the Company in connection with the
Business, net of reserves determined in accordance with the historical practice
of the Company.
11.2 "ACTION" means any action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority or arbitrator.
11.3 "AFFILIATE " means:
11.3.1 with respect to any Person which is a business entity:
(a) any Person owning or holding, directly or indirectly, 10% or more
of the equity capital in such business entity, or
(b) any Person in which such business entity owns or holds, directly
or indirectly, 10% or more of the equity capital;
11.3.2 with respect to any Person which is a trust or similar
entity:
(a) any trustee or other fiduciary of such trust or similar entity; or
(b) any direct or indirect beneficiary of such trust or similar
entity;
11.3.3 with respect to any natural Person, any spouse, parent,
child, grandchild grandparent, brother or sister of such Person.
11.4 "AGREEMENT" means this Agreement, together with the Schedules and
Exhibits
11.5 "BUSINESS" means all business conducted by the Company prior to the
Closing Date.
11.6 "BUYER" shall have the meaning set forth in the first paragraph of
this Agreement.
11.7 "BUYER INDEMNITEES" shall have the meaning set forth in Section 9.1.
11.8 "CAPITAL CONTRIBUTION" shall mean the total capital contributed to the
Company by a partner, as and when contributed.
11.9 "CLASS A INTERESTS " shall have the meaning set forth in the recitals
hereto.
11.10 "CLASS B INTERESTS" shall have the meaning set forth in the recitals
hereto.
11.11 "CLASS B PARTNER" shall have the meaning set forth in the first
paragraph of this Agreement.
11.12 "CLOSING" means the consummation of the transactions contemplated
hereby.
11.13 "CLOSING DATE" shall have the meaning set forth in Section 1.5.1.
11.14 "CODE" shall mean the Internal Revenue Code of 1986, as amended, or
any successor law, and regulations issued thereunder.
11.15 "CONSENT" means a consent, approval, authorization, waiver or
notification from any Person, including without limitation German American
Capital Corporation, New York State Urban Development Corporation, d/b/a Empire
State Development Corporation, and any Governmental Authority.
11.16 "CONTRACTS" means all contracts, agreements, undertakings
instruments, leases, licenses, commitments and arrangements, except Permits.
11.17 "DAMAGES" means all losses, claims, damages, costs, fines, penalties,
obligations, payments and Liabilities (including those arising out of any
Action), together with all reasonable costs and expenses (including reasonable
outside attorneys' fees and reasonable outof-pocket expenses) incurred in
connection with any of the foregoing.
11.18 "DOLLARS" or "$" means lawful currency of the United States.
11.19 "ENVIRONMENT" means soil, land surface or subsurface strata, surface
waters (including navigable waters, ocean waters, streams, ponds, drainage
basins, and wetlands), groundwaters, drinking water supply, stream sediments,
ambient air (including indoor air), plant and animal life, and any other
environmental medium or natural resource.
11.20 "ENVIRONMENTAL LAW" means any Law relating to the protection,
investigation or restoration of the Environment, including but not limited to
any Law that relates to:
11.20.1 Hazardous Substances, including without limitation the
generation, release, presence, control, storage, treatment,
transportation, handling or disposal of Hazardous Substances;
11.20.2 Other health and safety issues relating to the
Environment; or
11.20.3 Noise, odor, pollution, contamination and other conduct
and conditions affecting the Environment. Without in any way limiting
the above definition, the term Environmental Law shall include the
federal Water Pollution Control Act, the Clean Air Act, the Toxic
Substances Control Act, the Solid Waste Disposal Act, the
Comprehensive Environmental Response Compensation and Liability Act of
1980, the Emergency Planning and Community Right-To-Know Act and the
Safe Drinking Water Act, and the rules and regulations promulgated
thereunder.
11.21 "GENERAL PARTNER" shall have the meaning set forth in the first
paragraph of this Agreement.
11.22 "GP INTERESTS " shall have the meaning set forth in the recitals
hereto.
11.23 "GOVERNMENTAL AUTHORITY" means any federal, state or local
government, any of its subdivisions, agencies, authorities, commissions, boards
or bureaus, any federal, state or local court or tribunal and any arbitrator.
11.24 "GROUND LEASE " means that certain lease, dated January 30, 1998,
between the City of New Xxxxxxxx Industrial Development Agency, as lessor, and
New Roc Associates, L.P., as Lessee.
11.25 "HAZARDOUS SUBSTANCE" means any substance that is listed, classified
or regulated pursuant to any Environmental Law, and includes without limitation
any petroleum product or by-product, asbestos-containing material,
lead-containing paint or plumbing, polychlorinated biphenyls or radioactive
materials or radon.
11.26 "INCOME TAX" means any federal, state, local or foreign income,
alternative minimum, franchise or other similar Tax, duty, governmental charge
or assessment imposed by or on behalf of any Governmental Authority that is
based on or measured by income (including, interest and penalties on any of the
foregoing).
11.27 "INCOME TAX RETURNS" means any Returns with respect to Income Tax.
11.28 "INDEMNITEE" shall have the meaning set forth in Section 9.3.1.
11.29 "INTELLECTUAL PROPERTY" means trademarks, service marks, patents,
patent applications, software, registered copyrights and applications therefor.
11.30 "LAW" means any federal, state, local or other statute, rule,
regulation or ordinance.
11.31 "LC NEW ROC LP " shall have the meaning set forth in the recitals
hereto.
11.32 "LEASE" means any lease or sublease of real or personal property.
11.33 "LEASED PERSONAL PROPERTY" means all right, title and interest of the
Company, as lessee, in and to any personal property leased to the Company and
used exclusively in the conduct of the Business.
11.34 "LEASED REAL PROPERTY" shall have the meaning set forth in Section
2.10.2.
11.35 "LIABILITY" means any debt, obligation, duty or liability of any
nature (including any undisclosed, unfixed, unliquidated, unsecured, unmatured,
unaccrued, unasserted, contingent, conditional, inchoate, implied, vicarious,
joint, several or secondary liability), regardless of whether such debt,
obligation, duty or liability would be required to be disclosed on a balance
sheet prepared in accordance with GAAP.
11.36 "LIEN" means any lien, mortgage, deed of trust, security interest,
charge, pledge, retention of title agreement, easement, encroachment, condition,
reservation, covenant or other encumbrance affecting title or the use, benefit
or value of the asset'-in question.
11.37 "MANAGEMENT AGREEMENT" shall have the meaning set forth in Section
1.5.2.
11.38 "MATERIAL CONTRACTS" shall have the meaning set forth in Section
2.13.
11.39 "MATERIAL LEASE" means (i) all Leases pursuant to which the Company
is the lessor or sub-lessor thereunder; and (ii) a Lease relating to Leased
Personal Property involving a term of more than one (1) year or rental
obligations exceeding $5,000 per annum.
11.40 "ORGANIZATIONAL DOCUMENTS" means the limited partnership agreement,
articles of organization, certificates of incorporation, bylaws or operating
agreement, as applicable, of the Parties and any amendments to such documents.
11.41 "ORDER" means any order, judgment, injunction, decree, determination
or award of any Governmental Authority or arbitrator.
11.42 "OTHER LAW" means any Law applicable to the Business of the Company
other than an Environmental Law or a law relating to Taxes.
11.43 PARTNERSHIP AGREEMENT" shall have the meaning set forth in Section
1.5.2.
11.44 "PARTY" means each of Seller, GP Buyer, Class A Buyer, General
Partner, and the Company and "Parties" means Seller, Buyer, General Partner, and
the Company collectively.
11.45 "PERMIT" means any permit, license, certificate (including a
certificate of occupancy) registration, authorization or approval issued by a
Governmental Authority.
11.46 Intentionally Omitted.
11.47 "PERSON" means any natural person, corporation, partnership, limited
liability company, limited liability partnership, trust, trustee, business
trust, unincorporated organization or other entity.
11.48 "PURCHASE PRICE" shall have the meaning set forth in Section 1.3.
11.49 "REAL PROPERTY" means the Leased Real Property, collectively.
11.50 "RELEASE " means any spilling, leaking, pumping, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous
Substances (including the abandonment or discharging of barrels, containers or
other closed receptacles containing Hazardous Substances) into the environment.
11.51 "RETURNS" shall have the meaning set forth in Section 2.18.
11.52 "SELLER" shall have the meaning set forth in the first paragraph of
this Agreement.
11.53 "SELLER INDEMNITEES" shall have the meaning set forth in Section 9.2.
11.54 "SURVEY" shall have the meaning set forth in Section 2.10.13
11.55 "TAX" or "TAXES" means all income, profits, franchise, gross
receipts, capital, sales, use, withholding, value added, ad valorem, transfer,
employment, social security, disability, occupation, property, severance,
production, excise and other taxes, duties and similar governmental charges and
assessments imposed by or on behalf of any Governmental Authority (including
interest and penalties thereon).
11.56 "TAX LAWS" means the Code and all other Laws relating to Taxes.
11.57 "THIRD PARTY CLAIM" shall have the meaning set forth in Section
9.3.2.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
as of the date set forth above.
EPT NEW ROC, LLC
By: /s/ Xxxxx X. Brain
-----------------------------------
Xxxxx X. Brain
EPT NEW ROC GP, INC.
By: /s/ Xxxxx X. Braom
-----------------------------------
Xxxxx X. Brain
DKH-NEW ROC ASSOCIATES, LP
DKH-New Roc, Inc., its general partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx, President
NEW ROC ASSOCIATES, L.P.
LC New Roc, Inc., Its General Partner
By: /a/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, President
LC NEW ROC, Inc.
By: /a/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, President