Common use of Sale-Leaseback Clause in Contracts

Sale-Leaseback. Parent hereby acknowledges and agrees that, notwithstanding anything in this Agreement to the contrary, the Company may, without Parent’s consent, (a) enter into a sale-leaseback transaction with respect to the real property assets currently owned by the Company or its Subsidiaries and identified on Section 6.11 of the Company Disclosure Letter (a “Sale-Leaseback”) on market terms so long as any such Sale-Leaseback would be treated as an operating lease under GAAP and would not result in an additional lease payment that reduces the forecasted amount of 2015 EBITDA, as defined and set forth on Section 6.11 of the Company Disclosure Letter, by more than $3,278,228 and (b) if a Sale-Leaseback is consummated, at the Company’s election, distribute the proceeds of such Sale-Leaseback prior to the Closing or retain such proceeds. The Company will negotiate the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to the product of (i) seven (7) multiplied by (ii) the excess (if any) of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if any). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, (A) if no Sale-Leaseback is entered into by the Company prior to the Closing, the Estimated Merger Consideration shall be increased by $22,947,596 and (B) a Sale-Leaseback must be treated as an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For the avoidance of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject to any contract or agreement that would require Parent or the Surviving Corporation, as applicable, to effect a Sale-Leaseback following the Closing.

Sale-Leaseback. Parent hereby acknowledges (i) DFI shall use its reasonable good faith efforts prior to Closing, and agrees thatthe Stockholder Representative shall use his reasonable good faith efforts following Closing (with the reasonable cooperation of SYSCO) to bring about a sale of the warehouse and associated realty (other than the Annex Property (as hereinafter defined)) currently owned by DFI located in Portsmouth, notwithstanding anything in this Agreement Virginia (the "Facility"), and the lease of the Facility back to the contrarySurviving Corporation substantially in accordance with the terms contained in the sale/leaseback agreement attached hereto as Exhibit F as modified by such other terms (including completion of the blanks in such agreement) as may be commercially reasonable in the area of Portsmouth, Virginia (the Company may, without Parent’s consent, "Sale/Leaseback Agreement") which provides for a purchase price of not less than $2.91 million. (ii) In the event that (a) enter into a sale-contract for such sale and leaseback transaction substantially in accordance with respect to the real property assets currently owned by the Company Sale/Leaseback Agreement has not been fully executed at or its Subsidiaries and identified on Section 6.11 of the Company Disclosure Letter (a “Sale-Leaseback”) on market terms so long as any such Sale-Leaseback would be treated as an operating lease under GAAP and would not result in an additional lease payment that reduces the forecasted amount of 2015 EBITDA, as defined and set forth on Section 6.11 of the Company Disclosure Letter, by more than $3,278,228 and (b) if a Sale-Leaseback is consummated, at the Company’s election, distribute the proceeds of such Sale-Leaseback prior to the Closing or retain (b) as of Closing such proceeds. The Company contract has been executed but (A) the purchaser named therein has the right to terminate the contract without forfeiture of any monetary deposit or (B) SYSCO does not have the right to specifically enforce such contract, an additional number of shares of SYSCO Common Stock (and cash payable in lieu thereof in the same proportion as the Cash Election Percentage) otherwise constituting Merger Consideration equal in value to $1.13 million (the "Facility Escrow Fund") will negotiate be placed in the Escrow Fund at Closing for a period of up to three (3) years as provided in Section 2.04. (iii) If the transactions contemplated by the Sale/Leaseback Agreement are consummated on or before the end of such period, the Facility Escrow Fund and interest thereon will be released from escrow to the Stockholder Representative for distribution to the former DFI stockholders. (iv) If such transaction is not consummated (through no fault of SYSCO or failure by SYSCO to reasonably cooperate with the Stockholder Representative) on or before the end of such period (or is so effected but on terms (other than purchase price) which are not substantially in accordance with those contained in the Sale/Leaseback Agreement) the Facility Escrow Fund and interest thereon shall be forfeited and returned to SYSCO. (v) If such transaction is timely consummated at a price lower than that specified in the Sale/Leaseback Agreement but otherwise substantially in accordance with the terms and provisions of the Sale/Leaseback Agreement, a portion of the Facility Escrow Fund equal to the amount of such deficiency and interest thereon will be forfeited and returned to SYSCO, and the balance of the Facility Escrow Fund and interest thereon will be released to the Stockholder Representative for distribution to the former DFI Stockholders. (vi) All payments and distributions made pursuant to this Section 5.19 shall be in accordance with the principles and procedures set forth in Section 2.04(h). (vii) Notwithstanding the foregoing, the Stockholder Representative shall be entitled, with the cooperation of SYSCO, to bring about the sale of the Facility on such terms and conditions as it shall deem appropriate (generally in accordance with the Sale/Leaseback Agreement) if the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to sale are such that SYSCO may occupy the product Facility until at least ninety (90) days after the second anniversary of (i) seven (7) multiplied by (ii) the excess (if any) of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if any). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, (A) if no Sale-Leaseback is entered into by the Company prior to the Closing, the Estimated Merger Consideration shall be increased by $22,947,596 and (B) a Sale-Leaseback must be treated as an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For the avoidance of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject to any contract or agreement that would require Parent or the Surviving Corporation, as applicable, to effect a Sale-Leaseback following the ClosingClosing Date.

Sale-Leaseback. The parties agree and acknowledge that Alliance USACQCO 2, Inc., an Affiliate of Parent hereby acknowledges and agrees thatMerger Sub, notwithstanding anything intends to engage in this Agreement to the contrary, the Company may, without Parent’s consent, (a) enter into a sale-/leaseback transaction with an unrelated third party purchaser (the “Third Party Purchaser”) with respect to the real property assets currently owned by Owned Real Property whereby the Owned Real Property would be conveyed to a Third Party Purchaser contemporaneous with the transactions contemplated pursuant to this Agreement and the Owned Real Property would immediately be leased back from the Third Party Purchaser (the “Sale/Leaseback Transaction”). The Company or its Subsidiaries and identified on Section 6.11 hereby agrees that it shall reasonably cooperate in good faith in connection with the facilitation of the Company Disclosure Letter (a “Sale-Leaseback”/Leaseback Transaction and that Section 6.6(a)(vii) on market terms so long as shall apply to any such Sale-Leaseback would be treated Transaction, mutatis mutandis. In addition, the Company agrees that in connection with the Sale/Leaseback Transaction, it shall convey the Owned Real Property directly to the Third Party Purchaser simultaneous with and conditioned upon the Closing in respect of the other transactions hereunder and, subject to such conditions, hereby agrees to execute any reasonable documentation in connection with the consummation of such real property conveyance in connection with the Sale/Leaseback Transaction, including executing affidavits or other similar documentation required by the title company, and in anticipation thereof agrees, insofar as an operating lease under GAAP in its reasonable control, to assist and would cooperate in coordinating any loan payoff and the preparation by others of any related termination documentation in connection with any mortgage and/or deed of trust that presently encumbers the Owned Real Property and supplying such other reasonable information and documentation in its possession or readily available at no additional out of pocket cost to the Company in order to facilitate the conveyance of the Owned Real Property to the Third Party Purchaser. Parent and Merger Sub acknowledge and agree that (i) the consummation of the Sale/Leaseback Transaction, is not result in an additional lease payment that reduces the forecasted amount a condition to Closing and (ii) a material breach of 2015 EBITDA, as defined and set forth on this Section 6.11 6.24 will only constitute a material breach of the Company Disclosure Letter, by more than $3,278,228 and (bfor purposes of Section 7.2(b) if following compliance with the provisions in Section 8.1(e), such breach is a primary cause of the Sale-/Leaseback is Transaction not being consummated, at the Company’s election, distribute the proceeds of such Sale-Leaseback prior to the Closing or retain such proceeds. The Company will negotiate the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to the product of (i) seven (7) multiplied by (ii) the excess (if any) of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if any). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, (A) if no Sale-Leaseback is entered into by the Company prior to the Closing, the Estimated Merger Consideration shall be increased by $22,947,596 and (B) a Sale-Leaseback must be treated as an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For the avoidance of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject to any contract or agreement that would require Parent or the Surviving Corporation, as applicable, to effect a Sale-Leaseback following the Closing.

Sale-Leaseback. Parent hereby acknowledges The Borrower will not, and agrees thatwill not permit or cause any of its Restricted Subsidiaries to, notwithstanding anything in this Agreement directly or indirectly, after the Closing Date, become liable as lessee or as guarantor or other surety with respect to the contraryany lease of property, the Company maywhether an operating lease or a Capital Lease, without Parent’s consentof any property (whether real, personal or mixed), whether now owned or hereafter acquired, (a) enter into which the Borrower or any of its Restricted Subsidiaries has sold or transferred or is to sell or transfer to a sale-leaseback transaction with respect Person which is not the Borrower or any Restricted Subsidiary of the Borrower or (b) which the Borrower or any Restricted Subsidiary of the Borrower intends to use for substantially the real same purpose as any other property assets currently owned which has been sold or is to be sold or transferred by the Company Borrower or its Subsidiaries and identified on Section 6.11 any Restricted Subsidiary of the Company Disclosure Letter Borrower to another Person which is not the Borrower or any Restricted Subsidiary of the Borrower in connection with such lease (such a transaction, a “SaleSale and Lease-LeasebackBack Transaction”) on market terms ); provided that any Sale and Lease-Back Transaction shall be permitted so long as any such SaleSale and Lease-Leaseback would be treated as an operating lease under GAAP and would not result in an additional lease payment that reduces the forecasted amount of 2015 EBITDA, as defined and set forth on Section 6.11 of the Company Disclosure Letter, by more than $3,278,228 and (b) if a Sale-Leaseback Back Transaction is consummated, at the Company’s election, distribute the proceeds of such Sale-Leaseback prior to the Closing or retain such proceeds. The Company will negotiate the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to the product of (i) seven (7) multiplied by (ii) the excess (if any) of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if any). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, (A) if no Sale-Leaseback is entered into permitted by Section 8.02(f) or (B)(1) made for Cash consideration, (2) the Company prior Borrower or its applicable Restricted Subsidiary would otherwise be permitted to the Closingenter into, and remain liable under, the Estimated Merger Consideration shall be increased by $22,947,596 applicable underlying lease and (3) the aggregate fair market value of the property sold pursuant to all such Sale and Lease-Back Transactions under this clause (B) a Sale-Leaseback must be treated shall not exceed the greater of $50,000,000 and 2.00% of Consolidated Total Assets as an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For of the avoidance last day of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject to any contract or agreement that would require Parent or the Surviving Corporation, as applicable, to effect a Sale-Leaseback following the Closingmost recently ended Test Period.

Sale-Leaseback. Parent Lessee is acquiring the Premises as of the date of this Lease in accordance with the terms and conditions of the PSA Documents and is selling and transferring the Premises to Lessor by special warranty deeds, lease assignment agreements and bills of sale (collectively, the “Conveyance Documents”) and is leasing back from Lessor the Premises in accordance with the terms of this Lease. Lessor hereby demises and lets to Lessee and Lessee hereby leases from Lessor on a triple net basis, the Premises and the Equipment, pursuant to the terms, conditions and limitations set forth herein. This Lease is intended to be a unitary triple net Lease, covering certain distinct Sites on Schedule “A” (as the same may be amended from time to time pursuant to this Lease), all of which comprise the Premises. Neither Lessee nor Lessor shall be permitted to take, maintain or initiate any action which would or could, in any manner, cause this Lease to be viewed as demising less than all of the Sites. Lessee hereby agrees to comply with all provisions of the PSA Documents with respect to the Premises. The Lease contemplates that the purchase by Lessee, and the sale and leaseback of the Sites comprising the Premises to Lessor shall occur simultaneously. Lessee hereby represents and warrants to Lessor that it has complied with all of its obligations under the PSA Documents with respect to the Premises through the date of this Lease and covenants and agrees that it shall comply with all of its obligations under the PSA Documents with respect to the Premises from and after the date of this Lease. Lessee hereby acknowledges and agrees that, notwithstanding anything that it shall not default in this Agreement to the contraryperformance of its obligations under any of the PSA Documents (including specifically, the Company mayPSA, without Parent’s consentthe Remediation Agreement, (athe Remediation Funding Agreement, and the Escrow Agreement) enter into a sale-leaseback transaction with respect to the real property assets currently owned by Premises beyond applicable notice and cure periods, and that it shall promptly provide to Lessor any default notices it receives from Seller under the Company or its Subsidiaries and identified on Section 6.11 PSA Documents. Of the Sites comprising the Premises, certain of the Company Disclosure Letter (a “Sale-Leaseback”) on market terms so long as any such Sale-Leaseback would be treated as an operating lease under GAAP and would not result in an additional lease payment that reduces the forecasted amount Sites or portions of 2015 EBITDA, as defined and set forth on Section 6.11 certain of the Company Disclosure Letter, by more than $3,278,228 and (b) if a Sale-Leaseback is consummated, at the Company’s election, distribute the proceeds of such Sale-Leaseback prior to the Closing or retain such proceeds. The Company will negotiate the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to the product of (i) seven (7) multiplied by (ii) the excess (if any) of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if any). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, (A) if no Sale-Leaseback is entered into by the Company prior to the Closing, the Estimated Merger Consideration shall be increased by $22,947,596 and (B) a Sale-Leaseback must be treated as an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For the avoidance of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject to any contract or agreement that would require Parent or the Surviving CorporationSites, as applicable, are owned by Seller and are being conveyed in fee simple by deed, and are described on Schedule “A-1” (the “Fee Owned Sites”), and certain of the Sites or portions of certain of the Sites, as applicable, are leased or subleased by Seller and are being transferred by lease assignment agreements, and are described on Schedule “A-2” (the “Leased Sites”). This Lease is and shall be subject and subordinate to effect a Sale-Leaseback following the Closingterms of the overleases, whether leases or subleases, for the Leased Sites (the “Prime Leases”), which are hereby incorporated herein by this reference. The provisions of this Section 1 shall survive the execution and delivery of this Lease.

Sale-Leaseback. Parent hereby acknowledges No Credit Party will, and agrees thatwill not permit or cause any of its Subsidiaries to, notwithstanding anything in this Agreement directly or indirectly, after the Closing Date, become liable as lessee or as guarantor or other surety with respect to the contraryany lease of property, the Company maywhether an operating lease or a Capital Lease, without Parent’s consentof any property (whether real, personal or mixed), whether now owned or hereafter acquired, (a) enter into a sale-leaseback transaction with respect to the real property assets currently owned by the Company which Holdings or any of its Subsidiaries and identified on Section 6.11 has sold or transferred or is to sell or transfer to a Person which is not Holdings or any Subsidiary of Holdings or (b) which Holdings or any Subsidiary of Holdings intends to use for substantially the Company Disclosure Letter same purpose as any other property which has been sold or is to be sold or transferred by Holdings or any Subsidiary of Holdings to another Person which is not Holdings or any Subsidiary of Holdings in connection with such lease (such a transaction, a “SaleSale and Lease-LeasebackBack Transaction”) on market terms ); provided that any Sale and Lease-Back Transaction shall be permitted so long as any such SaleSale and Lease-Leaseback would be treated as an operating lease under GAAP and would not result Back Transaction is (i) permitted by Section 8.05, (ii) made for Cash consideration in an additional amount not less than the fair market value of such property, (iii) the Credit Party or its applicable Subsidiary would otherwise be permitted to enter into, and remain liable under, the applicable underlying lease payment that reduces and (iv) the forecasted amount of 2015 EBITDA, as defined and set forth on Section 6.11 aggregate fair market value of the Company Disclosure Letter, by more than $3,278,228 property sold pursuant to all such Sale and (b) if a SaleLease-Leaseback is consummated, at Back Transactions under this Section 8.12 during the Company’s election, distribute term of this Agreement shall not exceed the proceeds of such Sale-Leaseback prior to the Closing or retain such proceeds. The Company will negotiate the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to the product greater of (i) seven (7) multiplied by $10,000,000 and (ii) 10.0% of Consolidated EBITDA as of the excess (last day of the most recently ended Test Period; provided that, if anysuch Sale and Leaseback Transaction results in purchase money Indebtedness or Indebtedness with respect to Capital Lease, such Indebtedness is permitted by Section 8.02(f) and any Lien made the subject of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if anysuch Indebtedness is permitted by Section 8.03(f). For Notwithstanding anything to the avoidance of doubt and notwithstanding anything contrary in this Agreement to the contrarySection 8.12, (A) if in no Saleevent shall any Credit Party or any Subsidiary thereof enter into Sale and Lease-Leaseback is entered into by the Company prior to the Closing, the Estimated Merger Consideration shall be increased by $22,947,596 and (B) a Sale-Leaseback must be treated as Back Transaction with an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For the avoidance of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject Excluded Subsidiary with respect to any contract or agreement that would require Parent or the Surviving Corporation, as applicable, to effect a Sale-Leaseback following the ClosingMaterial Asset.

Sale-Leaseback. Parent hereby acknowledges On the Closing Date, MICA shall sell, assign, transfer and agrees thatdeliver and shall cause certain of its Subsidiaries to sell, notwithstanding anything in this Agreement assign, transfer and deliver to GE, and GE shall purchase and receive from MICA and such Subsidiaries, all of the equipment ("Sale-Leaseback Equipment") subject to the contraryinstallment sales agreements identified on Exhibit 2.2 hereto (collectively, the Company may"Installment Agreements") including but not limited to the equipment identified on Exhibit 2.2, without Parent’s consentfree and clear of any and all security interests, mortgages, pledges, liens, restrictions, charges or encumbrances of any kind or character, direct or indirect, whether accrued, absolute, contingent or otherwise, other than liens granted to GE. The aggregate purchase price, including applicable Illinois sales tax, for the Sale-Leaseback Equipment shall be equal to Five Million Seven Hundred Four Thousand One Hundred Twelve Dollars and Nine Cents (a$5,704,112.09) enter into ("Purchase Price"). MICA shall deliver an invoice to GE in the amount of the Illinois sales tax payable in connection with the sale of the Sale-Leaseback Equipment to GE. GE shall promptly deliver a salecheck to MICA in the amount of such sales tax. The remainder of the Purchase Price shall be paid by GE by cancelling MICA or the applicable Subsidiary's remaining obligation under the Installment Agreements pursuant to the terms of the "Installment Sale Termination Agreements" (as defined below). Concurrent with the transfer of the Sale-leaseback transaction Leaseback Equipment, GE and MICA shall (i) execute and deliver installment sale termination agreements in a form substantially as set forth in Schedule 2.2(A) hereto ("Installment Sale Termination Agreements") with respect to each of the Installment Agreements, and (ii) execute and deliver lease and service agreements in a form substantially as set forth in Schedule 2.2(B) hereto (the "MaxiService Agreements"), whereby GE shall lease to MICA or one of its Subsidiaries the Sale-Leaseback Equipment and provide service thereon, all as more specifically set forth in the MaxiService Agreements. Payment terms under the MaxiService Agreements with respect to the real property assets currently owned by the Company or its Subsidiaries and identified on Section 6.11 of the Company Disclosure Letter (a “Sale-Leaseback”) on market terms so long Sale- Leaseback Equipment shall be as any such Sale-Leaseback would be treated as an operating lease under GAAP and would not result in an additional lease payment that reduces the forecasted amount of 2015 EBITDA, as defined and set forth on Section 6.11 of the Company Disclosure Letter, by more than $3,278,228 and (b) if a Sale-Leaseback is consummated, at the Company’s election, distribute the proceeds of such Sale-Leaseback prior to the Closing or retain such proceeds. The Company will negotiate the terms of any such Sale-Leaseback in good faith with a third party. The Estimated Merger Consideration shall be increased by an amount equal to the product of (i) seven (7) multiplied by (ii) the excess (if any) of (x) $3,278,228 over (y) the additional lease payment for the 2015 fiscal year resulting from any Sale-Leaseback (if any). For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, (A) if no Sale-Leaseback is entered into by the Company prior to the Closing, the Estimated Merger Consideration shall be increased by $22,947,596 and (B) a Sale-Leaseback must be treated as an operating lease under GAAP and not as a financing lease under GAAP and must not constitute Indebtedness. For the avoidance of doubt, any Sale-Leaseback lease shall have a term of not fewer than 15 years and, if a Sale-Leaseback has not been consummated by the Closing, neither Parent nor the Surviving Corporation shall be subject to any contract or agreement that would require Parent or the Surviving Corporation, as applicable, to effect a Sale-Leaseback following the ClosingExhibit 2.2 hereto.