Exhibit 10.34
SALE-LEASEBACK AGREEMENT
THIS SALE-LEASEBACK AGREEMENT (this "Agreement") is made as of December
15, 2001, by and between CFK Realty Partners, LLC, an Illinois limited liability
company ("Buyer"), whose address is 00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, and Mercury Air Group, Inc., a Delaware corporation (the
"Seller"), whose address is 0000 XxXxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in
this Agreement shall have the meanings set forth in Section 1. Seller owns the
Property. Buyer desires to purchase the Land Parcels, the Improvements and the
Reversionary Interest pursuant to this Agreement and lease the Land Parcels and
Improvements to Seller pursuant to the Lease.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. Definitions. The following terms shall have the following meanings
for all purposes of this Agreement:
"AFFILIATE" means any person or entity which directly or indirectly
controls, or is under common control with, or is controlled by any other person
or entity. For purposes of this definition, "controls", "under common control
with" and "controlled by" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
person or entity, whether through ownership of voting securities or otherwise.
"CLOSING" shall have the meaning set forth in Section 5.
"CLOSING DATE" shall have the meaning set forth in Section 5.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COUNSEL" means one or more legal counsel to Seller licensed in the
states in which (i) the Property is located, (ii) Seller is incorporated or
formed and (iii) Seller maintains its chief executive offices, as selected by
Seller and approved by Buyer.
"DE MINIMIS AMOUNTS" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms, the use, storage or release of which does not
constitute a violation of, or require regulation or remediation under, any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the Property
is located.
"ENVIRONMENTAL CONDITION" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or surrounding the
Property, whether or not yet discovered, which could or does result in any
damage, loss, cost, expense, claim, demand, order or liability to or against
Seller or Buyer by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition resulting
from the operation of Seller's business and/or the operation of the business of
any other property owner or operator in the vicinity of any of the Properties
and/or any activity or operation formerly conducted by any person or entity on
or off the Property.
"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules and regulations relating to Hazardous
Materials and/or the protection of human health or the environment, by reason of
a Release or a Threatened Release of Hazardous Materials or relating to
liability for or costs of Remediation or prevention of Releases. "Environmental
Laws" includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations, rulings, orders or decrees promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); the Solid Waste Disposal Act; the Clean
Water Act; the Clean Air Act; the Toxic Substances Control Act; the Federal
Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide
Act; the Endangered Species Act; the National Environmental Policy Act; and the
River and Harbors Appropriation Act. "Environmental Laws" also includes, but is
not limited to, any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law; conditioning
transfer of property upon a negative declaration or other approval of a
Governmental Authority of the environmental condition of the property; requiring
notification or disclosure of Releases or other environmental condition of the
Property to any Governmental Authority or other person or entity, whether or not
in connection with transfer of title to or interest in property; relating to
nuisance, trespass or other causes of action related to Hazardous Materials; and
relating to wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of the Property by reason of the
presence of Hazardous Materials in, on , under or above the Property.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the state in which the
Property is located or any political subdivision thereof.
"HAZARDOUS MATERIALS" means (i) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (ii) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
which contains dielectric fluid containing levels of polychlorinated biphenyls
in excess of federal, state or local safety guidelines, whichever are more
stringent, or any petroleum product; (iii) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances", "toxic substances",
2
"hazardous materials", "hazardous wastes", "regulated substances" or words of
similar import under any Environmental Laws; and (iv) any other chemical,
material, gas or substance the exposure to or release of which is or may be
prohibited, limited or regulated by any Governmental Authority that asserts or
may assert jurisdiction over the Property or the operations or activity at the
Property, or any chemical, material, gas or substance that does or may pose a
hazard to the health and/or safety of the occupants of the Property or the
owners and/or occupants of property adjacent to or surrounding the Property.
" IMPROVEMENTS" means that portion of the improvements, appurtenances
and fixtures, including buildings, foundations and structures, or any fixtures
within or upon those buildings, foundations, and structures included in the
Property, but excluding the Land Parcel, the Reversionary Interest, Personalty
and inventory.
"INDEMNIFIED PARTIES" has the meaning set forth in Section 14.
"LAND PARCEL" means the parcel of land at 0000 XxXxxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 and legally described in EXHIBIT A attached hereto,
and the improvements thereto, excluding all buildings, foundations and
structures, or any fixtures within or upon those buildings, foundations and
structures, and excluding Personalty and inventory, but including, without
implied limitation, pavement and sidewalks, landscaping improvements, retaining
walls and underground utility supply lines (to the extent owned by Seller).
"LEASE" means the lease agreement which will be dated as of the
Closing Date and will be executed by Buyer, as lessor, and Seller, as lessee,
with respect to the Property, as the same may be amended from time to time. The
Lease shall be in form and substance acceptable to Buyer at its sole discretion.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
net worth or operation of Seller or the Property, including, without limitation,
the operation of the property as a Permitted Facility and/or the value of the
Property, or (ii) Seller's ability to perform its obligations under the
Sale-Leaseback Documents.
"MEMORANDUM" means the memorandum of lease dated as of the date of
this Agreement to be executed by Buyer, as lessor, and Seller, as lessee, with
respect to the Leased Property. A duplicate original Memorandum will be executed
and recorded in the applicable real property records for the Leased Property.
"NON-FOREIGN SELLER CERTIFICATE" means the non-foreign seller
certificate to be executed and delivered by Seller to Buyer prior to or on the
Closing Date.
"OTHER AGREEMENTS" means, collectively, all agreements and
instruments now or hereafter entered into between, among or by (1) the Seller
and, or for the benefit of (as intended beneficiary or third party beneficiary),
(2) Buyer; provided, however, the term Other Agreements shall not include this
Agreement, the other Sale-Leaseback Documents, and agreements between and among
institutional lenders and the Seller.
3
"PERMITTED EXCEPTIONS" means those recorded easements, restrictions,
liens and encumbrances set forth as exceptions in the title insurance policies
issued by Title Company to Buyer and approved by Buyer in connection with this
Agreement.
"PERMITTED FACILITY" has the meaning set forth in Section 8(f).
"PERSONALTY" means all machinery, appliances, furniture, equipment,
trade fixtures and other personal property of Seller (excluding inventory) from
time to time situation on or used in connection with the Property.
"PROPERTY" is defined in Section 2.
"PURCHASE PRICE" means the amount specified in Section 3.
"RELEASE" means any depositing, discharge, leaking, spilling,
injecting, pumping, pouring, emptying, escaping, dumping or disposing of
Hazardous Materials into the environment, except for De Minimis Amounts.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Materials, any actions to prevent, cure or mitigate any
Release, any inspection, investigation, study, monitoring, assessment, sampling
and testing, laboratory or other analysis, relating to any Hazardous Materials.
"REVERSIONARY INTERESTS" means a reversionary interest in the Leased
Improvements for the benefit of Buyer on the terms and conditions set forth in
the Lease.
"SALE-LEASEBACK DOCUMENTS" means this Agreement, the Lease, the
Memorandum, and all other documents executed in connection therewith or
contemplated thereby.
"THREATENED RELEASE" means a substantial likelihood of a Release
which requires action pursuant to Environmental Law to prevent or mitigate
damage to the soil, surface waters, groundwaters, land, stream sediments,
surface or subsurface strata, ambient air or any other environmental medium
comprising or surrounding the Property which may result from such Release.
"TITLE COMPANY" means the title insurance company described in
Section 6.
2. Transaction. On the terms and subject to the conditions set forth
herein:
Seller shall sell, or cause to be conveyed, and Buyer shall
purchase the Land Parcels, the improvements and the Reversionary
Interests (all of the interests to be sold or conveyed are referred to
collectively as the " Property");
Buyer shall lease all of the Land Parcels and the Improvements
for the Property to Seller pursuant to the Lease.
4
The sale and purchase of the Property pursuant to this Agreement and the
lease of the Land Parcel and Improvements for the Property to Seller pursuant to
the Lease are not severable and shall be considered a single integrated
transaction.
3. Purchase Price. The aggregate purchase price for the Property shall
be $4,200,000 (the "Purchase Price"). The Purchase Price shall be paid at
Closing as follows: (i) up to $3,200,000 in cash, and (ii) the remainder in the
form of a non-recourse, unsecured promissory note bearing interest at the rate
of 5% per annum, with principal and interest payable one year from the date of
Closing. The non-cash portion of the Purchase Price shall be subject to any
prorations and adjustments required by this Agreement. The cash portion of the
Purchase Price shall be remitted at Closing to Seller or at Seller's direction.
Seller shall be responsible to pay at Closing all fees and costs, including
attorneys' fees of XxXxxxx & Xxxxx, counsel to Buyer.
4. INTENTIONALLY DELETED.
5. Closing Date. The purchase and sale of the Property shall be closed
(the "Closing") within 30 days following the satisfaction of all of the terms
and conditions contained herein, but in no event shall the date of the Closing
be extended beyond April 1, 2002, unless such extension shall be approved by
Buyer in its sole discretion (the date on which the Closing shall occur is
referred to herein as the "Closing Date").
6. Closing. Upon execution of this Agreement, Buyer will order a title
insurance commitment for the Property from a title company acceptable to both
parties ("Title Company"). Prior to the Closing Date, the parties hereto shall
deposit with Title Company all documents and moneys necessary to comply with
their obligations under this Agreement. Title Company shall not cause the
transaction to close unless and until it has received written instructions from
Buyer to do so. Except for the fees and costs to be paid by Buyer pursuant to
Section 3, all costs of such transaction shall be borne by Seller, including,
without limitation, the cost of title insurance and endorsements, the attorneys'
fees of Seller, local counsel attorneys fees of Buyer, the cost of the surveys,
stamp taxes, transfer fees and escrow and recording fees. All real and personal
property and other applicable taxes and assessments and other charges relating
to the Property which is due and payable on or prior to the Closing Date, as
well as such taxes and assessments due and payable subsequent to the Closing
Date but which Title Company requires to be paid at Closing as a condition to
the issuance of the title insurance policies described in Section 11.C, shall be
paid by Seller at or prior to the Closing, and all other taxes and assessments
shall be paid by Seller in its capacity as lessee under the Lease in accordance
with the terms of the Lease. The Closing documents shall be dated as of the
Closing Date.
Seller and Buyer hereby employ Title Company to act as escrow agent in
connection with this transaction. Seller and Buyer will deliver to Title Company
all documents, pay to Title Company all sums and do or cause to be done all
other things necessary or required by this Agreement, in the reasonable judgment
of Title Company, to enable Title Company to comply herewith and to enable any
title insurance policy provided for herein to be issued. Title Company is
authorized to pay, from any funds held by it for Buyer's or Seller's respective
credit all amounts necessary to procure the delivery of such documents and to
pay, on behalf of Buyer and Seller, all charges and obligations payable by them,
respectively. Seller will pay all charges
5
payable by it to Title Company. Title Company is authorized, in the event any
conflicting demand is made upon it concerning these instructions or the escrow,
at its election, to hold any documents and/or funds deposited hereunder until an
action shall be brought in a court of competent jurisdiction to determine the
rights of Seller and Buyer or to interplead such documents and/or funds in an
action brought in any such court. Deposit by Title Company of such documents and
funds, after deducting therefrom its charges and its expenses and attorneys'
fees incurred in connection with any such court action, shall relieve Title
Company of all further liability and responsibility for such documents and
funds. Title Company's receipt of this Agreement and opening of an escrow
pursuant to this Agreement shall be deemed to constitute conclusive evidence of
Title Company's agreement to be bound by the terms and conditions of this
Agreement pertaining to Title Company. Disbursement of any funds shall be made
by check, certified check or wire transfer, as directed by Buyer. Title Company
shall be under no obligation to disburse any funds represented by check or
draft, and no check or draft shall be payment to Title Company in compliance
with any of the requirements hereof, until it is advised by the bank in which
such check or draft is deposited that such check or draft has been honored.
Title Company is authorized to act upon any statement furnished by the holder or
payee, or a collection agent for the holder or payee, of any lien on or charge
or assessment in connection with the Property, concerning the amount of such
charge or assessment or the amount secured by such lien without liability or
responsibility for the accuracy of such statement. The employment of Title
Company as escrow agent shall not affect any rights of subrogation under the
terms of any title insurance policy issued pursuant to the provisions thereof.
Seller and Buyer contemplate that due to the short time frame
anticipated for the Closing hereunder, the Title Company will not be able to
complete its title searches to update its commitments prior to the anticipated
Closing hereunder. Accordingly, Seller and Buyer hereby agree that the Closing
shall not be delayed thereby, but the obligations to deliver the title and all
conditions hereinabove shall continue in full force and effect until satisfied.
7. Representations and Warranties of Buyer. The representations and
warranties of Buyer contained in this Section are being made by Buyer as of the
date of this Agreement and the Closing Date to induce Seller to enter into this
Agreement and consummate the transactions contemplated herein, and Seller has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Buyer represents and
warrants to Seller as follows:
(a) Organization of Buyer. Buyer has been duly formed, is validly
existing and has taken all necessary action to authorize the execution, delivery
and performance by Buyer of this Agreement.
(b) Authority of Buyer. The person who has executed this Agreement on
behalf of Buyer is duly authorized so to do.
(c) Enforceability. Upon execution by Buyer, this Agreement shall
constitute the legal, valid and binding obligation of Buyer, enforceable against
Buyer in accordance with its terms.
6
All representations and warranties of Buyer made in this Agreement
shall survive the Closing.
8. Representations and Warranties of Seller. The representations and
warranties of Seller contained in this Section are being made as of the date of
this Agreement and the Closing Date to induce Buyer to enter into this Agreement
and consummate the transactions contemplated herein, and Buyer has relied, and
will continue to rely, upon such representations and warranties from and after
the execution of this Agreement and the Closing. Seller represents and warrants
to Buyer as follows:
(a) Organization and Authority.
(i) Seller is a duly organized corporation, validly existing and
in good standing under the laws of its state of incorporation, and
qualified to do business in any jurisdiction where such qualification is
required. All necessary corporate action has been taken to authorize the
execution, delivery and performance of this Agreement and of the other
documents, instruments and agreements provided for herein.
(ii) The person who has executed this Agreement on behalf of
Seller is duly authorized so to do.
(b) Enforceability of Documents. Upon execution by Seller, this
Agreement and the other documents, instruments and agreements to be executed in
connection with this Agreement, shall constitute the legal, valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms.
(c) Litigation. There are no suits, actions, proceedings or
investigations pending or, to the best of its knowledge, threatened against or
involving Seller or the Property before any Governmental Authority which might
reasonably result in any material adverse change in the contemplated business,
condition, worth or operations of Seller or the Property.
(d) Absence of Breaches or Defaults. Seller is not in default under
any document, instrument or agreement to which Seller is a party or by which
Seller or the Property is subject or bound, except where such default would not
have a Material Adverse Effect. The authorization, execution, delivery and
performance of this Agreement and the documents, instruments and agreements
provided for herein will not result in any breach or default under any other
document, instrument or agreement to which Seller is a party or by which Seller
or the Property is subject or bound, except where such breach or default would
not have a Material Adverse Effect. The authorization, execution, delivery and
performance of this Agreement and the documents, instruments and agreements
provided for herein will not violate any applicable law, statute, regulation,
rule, ordinance, code, rule or order, except where such violation would not have
a Material Adverse Effect.
(e) Utilities. At the Closing Date, the Property will be served by
ample public utilities to permit full utilization of the Property for its
intended purposes and all utility connection fees and use charges will have been
paid in full.
7
(f) Intended Use and Zoning; Compliance with Laws. Seller intends to
use the Leased Property solely for the operation of an office building and other
related operations as currently in use ("Permitted Facility"), and for no other
purposes. The Property is in compliance with all applicable zoning requirements
and the use of the Property as a Permitted Facility does not constitute an
unlawful nonconforming use under applicable zoning requirements. The Property
complies in all material respects with all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, orders and approvals of any
governmental agencies, departments, commissions, bureaus, boards or
instrumentalities of the United States, the state in which the Property is
located and all political subdivisions thereof, including, without limitation,
all health, building, fire, safety and other codes, ordinances and requirements,
all applicable standards of the National Board of Fire Underwriters and all
policies or rules of common law, in each case, as amended, and any judicial or
administrative interpretation thereof, including any judicial order, consent,
decree or judgment applicable to Seller. The Seller may enter into a sublease of
the Property, subject to the consent of Buyer.
(g) Area Development; Wetlands. No condemnation or eminent domain
proceedings affecting the Property has been commenced or, to the best of
Seller's knowledge, is contemplated. To the best of Seller's knowledge, the area
where the Property is located has not been declared blighted by any Governmental
Authority. The Property is not designated by any Governmental Authority as
wetlands.
(h) Licenses and Permits; Access. Seller has all required licenses
and permits, both governmental and private, to use and operate the Property in
the intended manner. There are adequate rights of access to public roads and
ways available to the Property to permit full utilization of the Property for
its intended purpose and all such public roads and ways have been completed and
dedicated to public use.
(i) Environmental. Seller is fully familiar with the present use of
the Property, and, after due inquiry, Seller has become generally familiar with
the prior uses of the Property. To the best of Seller's knowledge, no Hazardous
Materials have been used, handled, manufactured, generated, produced, stored,
treated, processed, transferred or disposed of at or on the Property, except in
De Minimis Amounts or in compliance with all applicable Environmental Laws, and
no Release or Threatened Release has occurred at or on the Property. To the best
of Seller's knowledge, the activities, operations and business undertaken on, at
or about the Property, including, but not limited to, any past or ongoing
alterations or improvements at the Property, are and have been at all times, in
compliance with all Environmental Laws. To the best of Seller's knowledge, no
further action is required to remedy any Environmental Condition or violation
of, or to be in compliance in all material respects with, any Environmental
Laws, and no lien has been imposed on the Property by any Governmental Authority
in connection with any Environmental Condition, the violation or threatened
violation of any Environmental Laws or the presence of any Hazardous Materials
on or off the Property.
There is no pending or, to the best of Seller's knowledge, threatened
litigation or proceeding before any Governmental Authority in which any person
or entity alleges the violation or threatened violation of any Environmental
Laws or the presence, Release, Threatened Release or placement on or at the
Property of any Hazardous Materials, or of any facts which would give rise to
any such action, nor has Seller (a) received any notice (and Seller
8
has no actual knowledge) that any Governmental Authority or any employee or
agent thereof has determined, threatens to determine or requires an
investigation to determine that there has been a violation of any Environmental
Laws at, on or in connection with the Property or that there exists a presence,
Release, Threatened Release or placement of any Hazardous Materials on or at the
Property, or the use, handling, manufacturing, generation, production, storage,
treatment, processing, transportation or disposal of any Hazardous Materials at
or on the Property; (b) received any notice under the citizen suit provision of
any Environmental Law in connection with the Property or any facilities,
operations or activities conducted thereon, or any business conducted in
connection therewith; or (c) received any request for inspection, request for
information, notice, demand, administrative inquiry or any formal or informal
complaint or claim with respect to or in connection with the violation or
threatened violation of any Environmental Laws or existence of Hazardous
Materials relating to the Property or any facilities, operations or activities
conducted thereon or any business conducted in connection therewith.
(j) Title to Property. Title to the Property is vested in Seller.
Upon Closing, title to the Property shall be vested in Buyer, free and clear of
all liens, encumbrances, charges and security interests of any nature
whatsoever, except the Permitted Exceptions and the Lease.
(k) No Other Agreements and Options. Except as set forth in SCHEDULE
I attached hereto, neither Seller nor, to the best of Seller's knowledge, the
Property is subject to any commitment, obligation, or agreement, including,
without limitation, any right of first refusal, option to purchase or lease
granted to a third party, which could or would prevent Seller from completing or
impair Seller's ability to complete the sale of the Property under this
Agreement or which would bind Buyer subsequent to consummation of the
transaction contemplated by this Agreement.
(l) No Mechanics' Liens. There are no outstanding accounts payable,
mechanics' liens, or rights to claim a mechanics' lien in favor of any
materialman, laborer, or any other person or entity in connection with labor or
materials furnished to or performed on any portion of the Property that will not
have been fully paid for on or before the Closing Date; no work has been
performed or is in progress nor have materials been supplied to the Property or
agreements entered into for work to be performed or materials to be supplied to
the Property prior to the date hereof, which will not have been fully paid for
on or before the Closing Date or which might provide the basis for the filing of
such liens against the Property or any portion thereof; Seller shall be
responsible for any and all claims for mechanics' liens and accounts payable
that have arisen or may subsequently arise due to agreements entered into for
and/or any work performed on, or materials supplied to the Property prior to the
Closing Date; Seller has made no contract or arrangement of any kind the
performance of which by the other party thereto would give rise to a lien on the
Property; and Seller shall and does hereby agree to defend, indemnify and
forever hold Buyer and Buyer's designees harmless for, from and against any and
all such mechanics' lien claims, accounts payable or other commitments relating
to the Property.
(m) No Reliance. Seller acknowledges that Buyer did not prepare or
assist in the preparation of any of the projected financial information used by
Seller in analyzing the economic viability and feasibility of the transaction
contemplated by this Agreement, and that Seller has not relied on any report or
statement by Buyer in entering into this Agreement. Furthermore, Seller
acknowledges that it has not relied upon, nor may it hereafter rely upon, the
9
analysis undertaken by Buyer in determining the Purchase Price, and such
analysis will not be made available to Seller.
(n) Purchase Price. The Purchase Price is the fair market value of
the Property and was agreed to by Seller and Buyer solely on that basis.
(o) Title and Bulk Sale Transfer Matters. The condition of title of
the Property is free and clear of any violations of any existing, applicable
laws, ordinance, codes and rules and regulations or other restrictions or
covenants of record imposed by public or private entities or by agreement.
Further, the condition of title upon the Closing hereunder which shall be
evidenced by later dated title commitments following the Closing Date, shall be
sufficient to deliver good, clean and merchantable title to the Buyer hereunder,
without pending violations of title exceptions and without such title exceptions
or restrictions which would adversely impact Buyer's ability to own and enjoy
the use of the Property for its intended uses. Additionally, no bulk sales or
other unpaid or overdue taxes must be paid or will be assessed against Seller or
Buyer as a result of this transaction and Seller shall cooperate with Buyer in
filing for and obtaining any such notices, releases or waivers upon and
following the Closing hereunder. Seller hereby agrees to indemnify and hold
Buyer harmless from and against any and all loss, claim, damage, action, cost or
expense, including reasonable attorneys' fees involved in defending a claim or
enforcing this obligation and indemnification, which Buyer may incur in
connection herewith and therewith.
All representations and warranties of Seller made in this Section 8
shall survive the Closing.
9. Covenant and Agreements of Seller. Prior to the Closing Date, Seller
shall, at all reasonable times, upon reasonable advance notice from Buyer (i)
provide Buyer and Buyer's officers, employees, agents, advisors, attorneys,
accountants, architects, and engineers with access to the Property, all
drawings, plans, and specifications for the Property in possession of Seller,
all engineering reports relating to the Property in the possession of Seller,
the files and correspondence relating to the Property, and the financial books
and records, including lists of delinquencies, relating to the ownership,
operation, and maintenance of the Property, and (ii) allow such persons to make
such inspections, tests, copies, and verifications as Buyer considers necessary.
All such persons shall use reasonable efforts not to unduly interfere with the
conduct of Seller's business.
10. Transaction Characterization.
(a) It is the intent of the parties that the conveyance of the
Property to Buyer be an absolute conveyance in effect as well as form, and the
instruments of conveyance to be delivered at Closing are not intended to serve
or operate as a mortgage, equitable mortgage, deed of trust, security agreement,
trust conveyance or financing or trust arrangement of any kind, nor as a
preference or fraudulent conveyance against any creditors of Seller. After the
execution and delivery of the deeds described in Section 11(a), Seller will have
no legal or equitable interest or any other claim or interest in the Property.
Furthermore, the parties intend for the Lease to be a true lease and not a
transaction creating a financing lease, capital lease, equitable mortgage,
mortgage,
10
deed of trust, security interest or other financing arrangement, and the
economic realities of the Lease are those of a true lease.
Notwithstanding the existence of the Lease, none of the parties
shall contest the validity, enforceability or characterization of the sale and
purchase of the Property by Buyer pursuant to this Agreement as an absolute
conveyance, and both parties shall support the intent expressed herein that the
purchase of the Property by Buyer pursuant to this Agreement provides for an
absolute conveyance and does not create a joint venture, partnership, equitable
mortgage, trust, financing device or arrangement, security interest or the like,
if, and to the extent that, any challenge occurs.
(b) This Agreement is a contract to extend a financial accommodation
(as such term is used in the Code) for the benefit of Seller and may not be
assumed over the objection of Buyer in the event Seller becomes a debtor or
debtor in possession in any bankruptcy proceeding. The financial accommodation
made through this Agreement is Buyer's acquisition of the Property for the
purposes of leasing the Property to Seller pursuant to a true lease.
11. Conditions of Closing. The obligation of Buyer to consummate the
purchase of the Property pursuant to this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
(a) Title. Seller shall convey the Property to Buyer by deeds
containing covenants and warranties as are customary in the applicable
jurisdiction (collectively, the "Deeds"), free of all liens, encumbrances,
restrictions, encroachments and easements, except the Permitted Exceptions and
the Lease.
(b) Evidence of Title. Buyer shall have received a preliminary title
report and irrevocable commitment to insure title by means of an ALTA extended
coverage owner's policy of title insurance (or its equivalent, in the event such
form is not issued in the jurisdiction where the Property is located) issued by
Title Company showing good and marketable fee title in Seller, committing to
insure Buyer's fee simple ownership in the Sale Property subject only to
Permitted Exceptions and the Lease and containing such endorsements as Buyer may
reasonably require.
(c) Survey; Flood Hazard. Buyer shall have received existing surveys
of the Property, the form and substance of which shall be satisfactory to Buyer
in its sole discretion. If and to the extent available, Seller shall have
provided Buyer with evidence satisfactory to Buyer that the location of the
Property is not within the 100-year flood plain or identified as a Special Flood
Hazard Area by the Federal Emergency Management Agency, or if the Property is in
such a Special Flood Hazard Area, Seller shall provide Buyer with evidence of
flood insurance maintained on such Property in amounts and on terms and
conditions satisfactory to Buyer.
(d) Zoning. If requested by Buyer, Seller shall have provided Buyer
with evidence satisfactory to Buyer to confirm that the Property is properly
zoned for its use as a Permitted Facility and that such use constitutes a legal
use under applicable zoning requirements.
(e) Utilities. Buyer shall have received evidence satisfactory to
Buyer in its sole discretion that all utilities and roads necessary for the
operation of the Property as a
11
Permitted Facility are available and that all necessary consents to the use of
such utilities and roads have been obtained.
(f) Compliance with Representations, Warranties and Covenants.
(i) All obligations of Seller under this Agreement shall have
been fully performed and complied with, and no event shall have occurred
or condition shall exist which would, upon the Closing Date, or, upon
the giving of notice and/or passage of time, constitute a breach or
default by Seller hereunder or under the lease or any other agreement
between or among Buyer or Seller pertaining to the subject matter
hereof, and no event shall have occurred or condition shall exist or
information shall have been disclosed by Seller or discovered by Buyer
which has had or would have a Material Adverse Effect on the Property,
Seller or Buyer's willingness to consummate the transaction contemplated
by this Agreement, as determined by Buyer in its sole and absolute
discretion. Any obligation, representation, warranty or indemnification
by Seller of Buyer or Buyer's assignee and transferee which has not yet
been completed, satisfied or fulfilled upon the Closing hereunder shall
continue in effect and remain enforceable against Seller upon and
following the Closing Date hereunder.
(ii) Buyer shall have received such evidence satisfactory to
Buyer in its reasonable discretion that the representations and
warranties of Seller under this Agreement are true, correct and
satisfactory to Buyer is in full force and effect.
(g) Proof of Insurance. Seller shall have delivered to Buyer copies
of insurance policies for the Property, showing that all insurance required by
the Lease and providing coverage and limits satisfactory to Buyer is in full
force and effect.
(h) Closing Documents. On or prior to the Closing Date, Buyer and/or
Seller, as may be appropriate, shall execute and deliver or cause to be execute
and delivered to Title Company or Buyer, as may be appropriate, all documents
required to be delivered by this Agreement, and such other documents, payments,
instruments and certificates, as Buyer may require in form acceptable to Buyer,
including, without limitation, the following:
(i) Deed;
(ii) Lease;
(iii) Memorandum;
(iv) Proof of Insurance;
(v) Non-Foreign Seller Certificate;
(vi) Closing settlement statement prepared by Title Company;
(vii) Guarantees given by Xxxxxxxxx X. Xxxxx, Xx., Xxxxxx
Xxxxxx and Xx. Xxxxxx X. Xxxxx; and
(viii) Such other documents as may be reasonably necessary to
consummate the transaction contemplated herein.
Upon fulfillment or waiver of all of the above conditions, Buyer shall deposit
funds necessary to close this transaction with the Title Company and this
transaction shall close in accordance with the terms and conditions of this
Agreement.
12
12. Default and Remedies.
(a) Each of the following shall be deemed an event of default by
Seller (each, an "Event of Default"):
(i) If any representation or warranty of Seller set forth in any
of the Sale-Leaseback Documents is false in any material respect or if
Seller renders any statement or account which is false in any material
respect;
(ii) If Seller fails to keep or perform any of the terms or
provisions of this Agreement;
(iii) If Seller is or becomes insolvent within the meaning of
the Code, files or notifies Buyer that it intends to file a petition
under the Code, initiates a proceeding under any similar law or statute
relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts (collectively, an "Action"), becomes the subject of
either a petition under the Code or an Action which is not dissolved
within 90 days after filing, or is not generally paying its debts as the
same become due;
(iv) If there is an "Event of Default" under the Lease; or
(v) If there is an "Event of Default" or a breach or default,
after the passage of all applicable notice and cure or grace periods,
under any other Sale-Leaseback Document or any of the Other Agreements.
(b) In the event of any Event of Default, Buyer shall be entitled to
exercise, at its option, concurrently, successively or in any combination, all
remedies available under the Lease or at law or in equity, including without
limitation any one or more of the following:
(i) To terminate this Agreement by giving written notice to
Seller in which case neither party shall have any further obligation or
liability, except such liabilities as Seller may have for such breach or
default;
(ii) To proceed with the Closing and direct Title Company to
apply such portion of the Purchase Price as Buyer may deem reasonably
necessary to cure any such breach or default;
(iii) To bring an action for damages against Seller, which , in
the event Buyer proceeds to close, may include an amount equal to the
difference between the value of the Property as conveyed to buyer and
the value such Property would have had if all representations and
warranties of Seller were true and Seller had complied with all of their
obligations;
(iv) To bring an action to require Seller specifically to
perform its obligations hereunder; and/or
(v) To recover from Seller all costs and expenses, including
reasonable attorneys' fees, paid or incurred by Buyer in connection with
the transaction contemplated
13
by this Agreement and all costs and expenses incurred or paid by Buyer
as a result of such breach or default.
13. Assignments.
(a) Buyer may assign in whole or in part its rights under this
Agreement. In the event of any unconditional assignment of Buyer's entire right
and interest hereunder and provided Buyer's assignee shall have assumed in
writing all of the duties and obligations of Buyer hereunder, Buyer shall
automatically be relieved, from and after the date of such assignment, of
liability for the performance of any obligation of Buyer contained herein.
(b) Seller shall not, without the prior written consent of Buyer,
which consent may be withheld in Buyer's sole discretion, sell, assign,
transfer, mortgage, convey, encumber or grant any easements or other rights or
interests of any kind in the Property, any of Seller's rights under this
Agreement or any interest in Seller, whether voluntarily, involuntarily or by
operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise, except, subsequent to the Closing, as
expressly permitted by the Lease.
14. Indemnity. Seller agrees, to indemnify, protect, hold harmless and
defend Buyer and its directors, officers, shareholders, members, employees,
successors, assigns, agents, lenders, contractors, subcontractors, experts,
licensees, affiliates, lessees, mortgagees, trustees and invitees, as applicable
(collectively, the "Indemnified Parties"), for, from and against any and all
losses, costs, claims, liabilities, damages and expenses (collectively,
"Losses") (including, without limitation, Buyer's reasonable attorneys' fees and
consequential damages but excluding Losses suffered by an Indemnified Party
arising out of such Indemnified Party's gross negligence or willful misconduct
or any violation not caused by Buyer of any of Seller's representations,
warranties, agreements or indemnifications in this Agreement; provided, however,
that the term "gross negligence" shall not include gross negligence imputed as a
matter of law to any of the Indemnified parties solely by reason of Buyer's
interest in any of the Leased Properties or Seller's failure to act in respect
of matters which are the obligation of Seller under the Lease) arising as the
result of an Environmental Condition and/or a breach of any of the
representations, warranties, covenants, agreements or obligations of Seller set
forth in this Agreement. Without limiting the generality of the foregoing, such
indemnity shall include, without limitation, any damages incurred with respect
to any engineering, governmental inspection and reasonable attorney's fees and
expenses that the Indemnified Parties may incur by reason of any Environmental
Condition and/or any representation or warranty set forth in Section 8K being
false, or by reason of any investigation or claim of any Governmental Authority
in connection therewith. The provisions of this Section 14 shall survive the
Closing.
15. Miscellaneous Provisions.
(a) Notices. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this Agreement
shall be in writing and given by (i) hand delivery, (ii) facsimile, (iii)
express overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon (a) receipt,
if hand delivered, (b) transmission, if delivered by facsimile, (c) the next
business day, if delivered by express overnight delivery service, or (d) the
third business day following the day of
14
deposit of such notice with the United States Postal Service, if sent by
certified or registered mail, return receipt requested. Notices shall be
provided to the parties and addresses (or facsimile numbers, as applicable)
specified below:
If to Seller:
Mercury Air Group, Inc.
0000 XxXxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000)000-0000
Facsimile: (000) 000-0000
If to Buyer:
CFK Realty Partners, LLC
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
XxXxxxx & Xxxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) Risk of Loss. As between Buyer and Seller, Seller shall be
responsible for the risk of loss, damage or destruction of the Property or any
part thereof prior to the Closing Date.
(c) Condemnation. In the event of a taking of all or any part of the
Property prior to the Closing, Buyer at its sole option shall have the right to
either (i) receive the proceeds of any condemnation award and, proceed to close
this transaction or (ii) terminate this Agreement with respect to the Property
which is subject to such taking. Buyer and Seller agree to execute such
amendments to this Agreement as may be reasonably required by Buyer to evidence
any such termination.
(d) Real Estate Commission. Other than Cataumet Investment Corp.,
LLC, Buyer and Seller represent and warrant to each other that they have dealt
with no real estate broker, agent, finder or other intermediary in connection
with the transactions contemplated by this Agreement. Seller shall be
responsible for paying the fees and expenses of Cataumet Investment Corp., LLC.
Buyer and Seller shall indemnify and hold each other harmless for,
15
from and against any costs, claims or expenses, including attorneys' fees,
arising out of the breach of their respective representations and warranties
contained within this Section.
(e) Waiver and Amendment. No provisions of this Agreement shall be
deemed waived or amended except by a written instrument unambiguously setting
forth the matter waived or amended and signed by the party against which
enforcement of such waiver or amendment is sought. Waiver of any matter shall
not be deemed a waiver of the same or any other matter on any future occasion.
(f) Captions. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner in the
construction or interpretation hereof.
(g) Buyer's Liability. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Agreement by
Buyer, that (i) there shall be absolutely no personal liability on the part of
Buyer, its successors or assigns and the trustees, members, partners,
shareholders, officers, directors, employees and agents of Buyer and its
successors and assigns, to Seller with respect to any of the terms, covenants
and conditions of this Agreement or the other Sale-Leaseback Documents, as
applicable, (ii) Seller waives all claims, demands and causes of action against
the trustees, members, partners, shareholders, officers, directors, employees
and agents of Buyer and its successors or assigns in the event of any breach by
Buyer of any of the terms, covenants and conditions of this Agreement or the
other Sale-Leaseback Documents, as applicable, to be performed by Buyer, and
(iii) Seller shall look solely to the Property for the satisfaction of each and
every remedy of Seller in the event of any breach by Buyer of any of the terms,
covenants and conditions of this Agreement or the other Sale-Leaseback
Documents, as applicable, to be performed by Buyer, or any other matter in
connection with this Agreement, the other Sale-Leaseback Documents or any of the
Properties, such exculpation of liability to be absolute and without any
exception whatsoever.
(h) Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall remaining full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal effect to
the intention of the parties as expressed therein.
(i) Construction Generally. This is an agreement between parties who
are experienced in sophisticated and complex matters similar to the transaction
contemplated by this Agreement and is entered into by both parties in reliance
upon the economic and legal bargains contained herein and shall be interpreted
and construed in a fair and impartial manner without regard to such factors as
the party which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Seller and Buyer were each represented by
legal counsel competent in advising them of their obligations and liabilities
hereunder.
(j) Other Documents. Each of the parties agrees to sign such other
and further documents as may be necessary or reasonably requested by the other
party in order to carry out the intentions expressed in this Agreement.
16
(k) Attorneys' Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover all of its attorneys' fees and
other costs in addition to any other relief to which it may be entitled.
References in this Agreement to Buyer's attorneys' fees and/or costs shall mean
both the fees and costs of independent counsel retained by Buyer with respect to
this transaction.
(l) Entire Agreement. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder, constitute
the entire agreement between the parties with respect to the subject matter
hereof, and there are no other representations, warranties or agreements,
written or oral, between Seller and Buyer with respect to the subject matter of
this Agreement.
(m) Recording. At the election of Buyer, this Agreement may be
recorded in the appropriate governmental office so as to impart constructive
notice of the terms and provisions hereof.
(n) Forum Selection; Jurisdiction; Venue; Choice of Law. For
purposes of any action or proceeding arising out of this Agreement, the parties
hereto expressly submit to the jurisdiction of all federal and state courts
located in the State of California. Buyer and Seller consent that they may be
served with any process or paper by registered mail or by personal service
within or without the State of California in accordance with applicable law.
Furthermore, Buyer and Seller waive and agree not to assert in any such action,
suit or proceeding that they are not personally subject to the jurisdiction of
such courts, that the action, suit or proceeding is brought in an inconvenient
forum or that venue of the action, suit or proceeding is improper. This
Agreement shall be governed by the internal law of the State of California,
without regard to its principles of conflicts of law. Nothing contained in this
Section shall limit or restrict the right of Buyer or Seller to commence any
proceeding in the federal or state courts located in the states in which the
Property is located to the extent Buyer or Seller deems such proceeding
necessary or advisable to exercise remedies available under this Agreement.
(o) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
(p) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of Seller and Buyer and their respective successor and permitted
assigns, including, without limitation, any United States trustee, any
debtor-in-possession or any trustee appointed from a private panel.
(q) Survival. Except for the conditions of Closing set forth in
Section 11, which shall be satisfied or waived as of the Closing Date, all
representations, warranties, agreements, obligations and indemnities of Seller
and Buyer set forth in this Agreement (including, without limitation, the
provisions of Sections 7, 8 and 14) shall survive the Closing.
(R) WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES. BUYER AND SELLER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO
ANY AND ALL ISSUES PRESENTED IN ANY
17
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
HERETO AGAINST THE OTHER OR ITS SUCCESSOR WITH RESPECT TO ANY MATTER ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THIS WAVIER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY HAVE
TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF THEIR
BARGAIN. FURTHERMORE, SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL AND INDIRECT DAMAGES FROM EACH OTHER AND THEIR AFFILIATES, OFFICERS,
DIRECTORS, MEMBERS OR EMPLOYEES IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY ANY PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR
EMPLOYEES OR ANY OF ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THE WAIVER BY EACH OF THE PARTIES OF ANY RIGHT THEY MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE
PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement as
of the date first above written.
BUYER:
CFK Realty Partners, LLC,
an Illinois limited liability company
By:
---------------------------------
SELLER:
Mercury Air Group, Inc.,
a Delaware corporation
By:
---------------------------------
Name:
Title:
00
XXXXX XX XXXXXXXX )
) ss:
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me on _______________
by Xxxxxxxxx X. Xxxxx, Xx., a general partner of CFK Realty Partners, LLC, an
Illinois limited liability company, on behalf of the limited liability company.
------------------------------------
Notary Public
My Commission Expires:
------------------------------------
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
The foregoing instrument was acknowledged before me on _______________
by ____________, as ______________ of Mercury Air Group, Inc., a Delaware
corporation, on behalf of the corporation.
------------------------------------
Notary Public
My Commission Expires:
------------------------------------
19
