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REAL PROPERTY PURCHASE AND SALE AGREEMENT
dated as of
July 26, 2002
by and between
XXXXXXXX HEADQUARTERS BUILDING COMPANY,
as Seller,
XXXXXXXX TECHNOLOGY CENTER, LLC,
as Purchaser,
XXXXXXXX COMMUNICATIONS, LLC
and
XXXXXXXX COMMUNICATIONS GROUP, INC.,
as Guarantors,
and
XXXXXXXX AIRCRAFT LEASING, LLC
(for the limited purposes set forth herein)
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND INTERPRETATION.........................................................................2
Section 1.01. Definitions.....................................................................................2
ARTICLE II SALE OF ACQUIRED ASSETS...............................................................................9
Section 2.01. Sale of Acquired Assets.........................................................................9
Section 2.02. Closing Payment.................................................................................9
Section 2.03. Closing.........................................................................................9
Section 2.04. Deliveries by Seller............................................................................9
Section 2.05. Deliveries by Purchaser........................................................................10
Section 2.06. Agreed Allocation..............................................................................11
ARTICLE III REPRESENTATIONS AND WARRANTIES......................................................................11
Section 3.01. Representations of Seller......................................................................11
Section 3.02. Representations of Purchaser...................................................................12
Section 3.03. Representations of Communications..............................................................14
Section 3.04. Representations of WCL.........................................................................14
Section 3.05. Survival.......................................................................................15
ARTICLE IV COVENANTS AND AGREEMENTS.............................................................................15
Section 4.01. Pre-Closing Covenants..........................................................................15
Section 4.02. Taxes; Closing Costs...........................................................................16
Section 4.03. Reserved.......................................................................................16
Section 4.04. Closing Prorations.............................................................................16
Section 4.05. Title Insurance................................................................................16
Section 4.06. Surveys........................................................................................17
Section 4.07. No Recording...................................................................................17
Section 4.08. Condition of Assets............................................................................17
Section 4.09. Make-Whole Provision...........................................................................18
Section 4.10. Covenant to Satisfy Conditions.................................................................19
Section 4.11. Substitution of New Communications.............................................................19
Section 4.12. Further Assurances.............................................................................19
ARTICLE V CONDITIONS PRECEDENT..................................................................................19
Section 5.01. Conditions to Purchaser's Obligation to Effect the Closing.....................................19
Section 5.02. Conditions to Seller's Obligation to Effect the Closing........................................20
ARTICLE VI TERMINATION..........................................................................................21
Section 6.01. Termination....................................................................................21
Section 6.02. Effect of Termination..........................................................................22
ARTICLE VII MISCELLANEOUS.......................................................................................22
Section 7.01. Expenses.......................................................................................22
(i)
TABLE OF CONTENTS
(continued)
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Section 7.02. Extension; Waiver..............................................................................22
Section 7.03. Reserved.......................................................................................22
Section 7.04. Notices........................................................................................22
Section 7.05. Entire Agreement; Amendment....................................................................24
Section 7.06. Governing Law..................................................................................24
Section 7.07. Remedies.......................................................................................24
Section 7.08. Jurisdiction...................................................................................24
Section 7.09. Counterparts...................................................................................25
Section 7.10. Severability...................................................................................25
Section 7.11. Headings.......................................................................................25
Section 7.12. Assignment.....................................................................................25
Section 7.13. Successors and Assigns.........................................................................25
Section 7.14. No Third-Party Beneficiaries...................................................................25
Section 7.15. Publicity......................................................................................25
Section 7.16. Interpretation.................................................................................25
Section 7.17. Survival of Construction Obligations...........................................................26
Section 7.19. AFE's..........................................................................................26
Section 7.20. Continuing Cooperation.........................................................................27
Section 7.21. Disposition of Aircraft Dry Leases.............................................................27
Section 7.22. Casualty/Condemnation..........................................................................28
Section 7.23. License for Parking Structure..................................................................29
Section 7.24. Construction Warranties........................................................................29
Section 7.25. Guaranty.......................................................................................29
Schedules
Schedule 1 Central Parcel and Skywalk
Schedule 2.01 Leases and Agreement
Schedule 2.06 Agreed Allocation
Schedule 3.01(e) Seller Consents
Schedule 3.01(h) Surviving Agreements
Schedule 3.02(e) Purchaser Related Consents
Schedule 4 Cooling Tower Parcel
Schedule 5 Parking Garage Parcel
Exhibits
Exhibit A Form of Xxxx of Sale
Exhibit B Form of Deed
Exhibit C Form of Non-Foreign Entity Certificate
Exhibit D Permitted Exceptions
(ii)
REAL PROPERTY PURCHASE AND SALE AGREEMENT
This
REAL PROPERTY PURCHASE AND SALE AGREEMENT, dated as of
July 26, 2002, by and between XXXXXXXX HEADQUARTERS BUILDING COMPANY, a Delaware
corporation ("Seller"), XXXXXXXX TECHNOLOGY CENTER, LLC, a Delaware limited
liability company ("Purchaser"), XXXXXXXX COMMUNICATIONS, LLC, a Delaware
limited liability company ("WCL"), XXXXXXXX COMMUNICATIONS GROUP, INC., a
Delaware corporation ("Communications," Communications and WCL being jointly and
severally liable with Purchaser for all obligations of Purchaser set forth
herein, collectively, "Guarantors") and XXXXXXXX AIRCRAFT LEASING, LLC (formerly
known as Xxxxxxxx Communications Aircraft, LLC), a Delaware limited liability
company (for the limited purposes set forth herein).
WITNESSETH:
WHEREAS, Seller owns the Acquired Assets (as defined below)
relating to the office building and related facilities in Tulsa,
Oklahoma,
commonly known as the Xxxxxxxx Technology Center;
WHEREAS, Communications and its subsidiary, CG Austria, Inc.,
a Delaware corporation, which is not a party to this Agreement (collectively,
the "Debtors") are debtors, having filed voluntary petitions on April 22, 2002,
for relief pursuant to chapter 11 of title 11 of the United States Code, 11
U.S.C. Sections 101-1330 (as amended, the "Bankruptcy Code"), whose cases are
pending in the United States Bankruptcy Court for the Southern District of New
York (the "Bankruptcy Court") and procedurally consolidated under Case No.
02-11957 (the "Bankruptcy Case");
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, the Acquired Assets, in the manner and subject
to the terms and conditions set forth herein;
WHEREAS, each of Purchaser and WCL is a wholly owned
subsidiary of Communications; and
WHEREAS, Guarantors will obtain benefits from the Purchaser's
acquisition of the Acquired Assets and, in order to induce Seller to enter into
this Agreement, Guarantors have agreed to jointly and severally guaranty
Purchaser's obligations hereunder.
NOW, THEREFORE, in consideration of the foregoing premises and
the representations, warranties, covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context clearly requires
otherwise, the following capitalized terms shall have the following meanings:
"Acquired Assets" shall mean, subject to Section 7.24,
collectively, the fee simple title to the Real Property and the Improvements;
all contract rights, subsurface rights, air rights, easements, privileges,
servitudes, appurtenances and other rights belonging to or inuring to the
benefit of Seller and appurtenant to the Real Property and Improvements
(including, without limitations, the Skywalk); all documents, specifications and
plans related to the Real Property and Improvements; all Licenses and Permits;
and all other rights, easements, titles, interests, privileges and appurtenances
of Seller related to and used in connection with the construction, ownership,
use, operation or management of the Real Property and Improvements, as expressly
set forth in this Agreement; and all Personal Property.
"Affiliate" shall mean, with respect to any Person, any other
Person which, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such Person;
provided that, for the purposes of this definition, "control" (including with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or partnership interests, by contract or otherwise.
"Agreed Allocation" has the meaning set forth in Section 2.06.
"Agreement" shall mean this
Real Property Purchase and Sale
Agreement, together with the Schedules and Exhibits hereto, as amended,
supplemented or otherwise modified from time to time.
"Aircraft" shall mean the aircraft leased pursuant to the
Aircraft Dry Leases.
"Aircraft Dry Leases" shall mean (a) the Aircraft Dry Lease
(N358WC) dated as of September 13, 2001 by and between Xxxxxxxx Aircraft
Leasing, LLC (formerly known as Xxxxxxxx Communications Aircraft, LLC), as
"Lessor", and WCL, as "Lessee", and/or (b) the Aircraft Dry Lease (N359WC) dated
as of September 13, 2001 by and between Xxxxxxxx Aircraft Leasing, LLC (formerly
known as Xxxxxxxx Communications Aircraft, LLC), as "Lessor", and WCL, as
"Lessee".
"Allocated Lease Principal" shall have the meaning set forth
in Section 7.21.
"Applicable Law" shall mean any applicable law, regulation,
rule, order, judgment or decree.
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"April Agreement" shall mean the agreement dated as of April
19, 2002 by and among Debtors, WCL, certain subsidiaries of Communications,
certain bondholders, and certain Lenders under the WCG Bank Facility.
"Bank Agent" shall mean Bank of America, N.A., as agent under
the WCG Bank Facility.
"Bankruptcy Case" has the meaning set forth in the recitals
hereof.
"Bankruptcy Code" has the meaning set forth in the recitals
hereof.
"Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy
Procedure, as the same are applicable to the Bankruptcy Case.
"Xxxx of Sale" shall mean the Special Warranty Xxxx of Sale
and Assignment covering all of the Personal Property, to be executed by Seller
in favor of Purchaser in substantially the form attached hereto as EXHIBIT A.
"Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banks in New York City are authorized or obligated by
law or executive order to close or are otherwise generally closed.
"Cash Portion of the Purchase Price" has the meaning set forth
in Section 2.02(a).
"Center" shall mean the multi-story office building located on
the Center Parcel commonly known as One Technology Center or the Xxxxxxxx
Technology Center.
"Center Parcel" shall mean that portion of the Real Property
more particularly described in SCHEDULE 1, which shall include the air rights
associated with the Skywalk; provided, however, the description on said Schedule
shall be deemed to be amended for purposes of this Agreement to reflect the
description for such property on the Initialed Title Commitment and the Survey.
"Central Plant" shall mean the equipment, fixtures, piping,
wiring, machinery, and all other items of personal property comprising the plant
for chilled and hot water production and circulation, and electricity generation
and transmission located in the basement of the Center in the Central Plant
Space and on the Cooling Tower Parcel.
"Central Plant Lease" shall mean that certain Lease Agreement
originally entered into between Purchaser, as "Landlord," and Seller, as
"Tenant," effective as of April 23, 2001, as amended from time to time,
pertaining to the Central Plant; it being understood between Purchaser and
Seller that Purchaser shall be the landlord and that Seller shall be the tenant
upon completion of Closing.
"Central Plant Space" shall mean that portion of the basement
of the Center located in the Improvements which is described in the Central
Plant Lease.
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"Claims Purchase" shall mean the sale pursuant to the Claims
Purchase Agreement by TWC (a) on its own behalf, of certain claims against
Communications and (b) as agent for United States Trust Company of New York, a
New York banking corporation, in its capacity as indenture trustee and
securities intermediary under the Indenture dated as of March 28, 2001, among
WCG Note Trust, a special purpose statutory business trust created under laws of
Delaware, WCG Note Corp., Inc., a special purpose corporation organized under
the laws of the state of Delaware, as co-issuers of certain Senior Secured Notes
due 2004, and the Indenture Trustee, of that certain Senior Reset Note due 2008
issued by Communications to the WCG Note Trust.
"Claims Purchase Agreement" shall mean that certain Purchase
and Sale Agreement dated as of the date hereof between TWC, as "Seller," and
Leucadia National Corporation, as "Purchaser."
"Closing" has the meaning set forth in Section 2.03.
"Closing Date" has the meaning set forth in Section 2.03.
"Closing Documents" shall mean all documents and other
instruments contemplated to be delivered pursuant to this Agreement or the
Transactions at Closing.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Committee" shall mean the Official Committee of Unsecured
Creditors appointed in the Bankruptcy Case.
"Communications" has the meaning set forth in the preamble
hereof.
"Contracts" shall have the meaning set forth in Section 7.19.
"Construction Agreement" shall mean that certain Agreement of
Purchase and Sale and Construction Completion effective as of February 26, 2001
between Seller, as "Seller," and WCL, as "Purchaser."
"Construction Documents" shall have the meaning set forth in
Section 7.24.
"Construction Warranties" shall have the meaning set forth in
Section 7.24.
"Cooling Tower Parcel" shall mean the real property upon which
the cooling towers relating to the Central Plant are located, as described in
SCHEDULE 3.
"Corridor" shall have the meaning set forth in Section 7.19.
"Debtors" has the meaning set forth in the recitals hereof.
"Deed" shall mean the Special Warranty Deed covering the Real
Property, those portions of the Acquired Assets that constitute real property,
the Improvements and all of
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Seller's right, title and interest in and to the Skywalk, excluding, however,
Seller's interest in and to the Central Plant, in substantially the form
attached hereto as EXHIBIT B.
"Disposition" shall have the meaning set forth in Section
7.21.
"Easement for Backup Generation" shall mean an easement
agreement in a form reasonably acceptable to both Purchaser and Seller, in which
Seller and its co-tenant shall grant to Purchaser certain easement rights to
install and maintain Purchaser's backup electrical generation equipment.
"Existing Construction Claims" shall have the meaning set
forth in Section 7.24.
"Fee" shall have the meaning set forth in Section 7.21.
"Financing Statements" shall mean proper UCC-1 or the
appropriate equivalent, for filing under the Uniform Commercial Code of each
jurisdiction as may be necessary or, in the opinion of Seller, desirable to
perfect the security interests lien created by the Purchase Money Mortgage.
"Governmental Entity" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or quasi-governmental
body or agency or other regulatory authority or agency.
"Guarantors" shall have the meaning set forth in the preamble
hereof.
"Improvements" shall mean, collectively, all buildings,
structures, fixtures, facilities, parking structures and areas, and other
improvements partially or completely constructed and located on or connected
with the Real Property or the Skywalk, except those expressly excepted in the
definition of Acquired Assets.
"Initialed Title Commitment" shall mean the Title Commitment,
marked and redated to the Closing Date and initialed by a representative of the
Title Company, insuring Purchaser's fee simple title to the Real Property, the
Improvements and those portions of the Acquired Assets which constitute real
property interests (including all recorded appurtenant easements, insured as
separate legal parcels), with gap coverage from Seller through the date of
recording, subject only to the Permitted Exceptions and containing such
endorsements and affirmative coverages as may be reasonably required by
Purchaser, including without limitation, a Non-Imputation Endorsement.
"Insured Property" has the meaning set forth in Section 4.04.
"Legal Opinion" shall mean an opinion from
Oklahoma counsel
reasonably satisfactory to Seller addressed to Seller and its successors and
assigns dated as of the Closing Date opining as to the enforceability of the
Purchase Money Note, the enforceability of, and the perfection of the security
interests granted pursuant to the Purchase Money Mortgage and Financing
Statements, and such other matters incident to the Transactions contemplated
herein, which shall be in form and substance reasonably satisfactory to Seller.
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"Lenders" shall mean the lenders under the WCG Bank Facility.
"Licenses and Permits" shall mean collectively all of the
direct or indirect right, title and interest of Seller in and to all licenses,
permits, building permits, certificates of occupancy, approvals, government
orders, resolutions, dedications, subdivision maps and entitlements issued,
approved or granted by any Governmental Entity in connection with the Real
Property and Improvements, together with all renewals and modifications thereof.
"Management Agreement" shall mean the Management Services
Agreement, dated April 23, 2001, between Seller, as "Manager," and Purchaser, as
"Owner," under which Seller manages the Acquired Assets (exclusive of the
Parking Garage and Parking Garage Parcel), as amended from time to time.
"Master Lease" shall mean the Master Lease dated as of
September 13, 2001, by and between Seller, as "landlord," and Purchaser, as
"tenant," covering the Real Property and Improvements.
"Members" shall mean the members of the Committee.
"Monthly Debt Service" shall have the meaning set forth in
Section 7.21.
"Mortgage Title Policy" shall mean a title commitment, marked
and redated to the Closing Date and initialed by a representative of the Title
Company, to issue a 1992 ALTA title insurance policy dated and effective as of
the Closing Date, issued by the Title Company in an amount not less than the
face amount of the Purchase Money Note insuring the first priority lien of the
Purchase Money Mortgage, subject only to Permitted Exceptions and containing
such endorsements and affirmative coverages as Seller shall reasonably require,
including without limitation, a Non-Imputation Endorsement, if and to the extent
available.
"New Communications" has the meaning set forth in Section
4.11.
"Non-Foreign Entity Certification" has the meaning set forth
in Section 2.04(d).
"Parking Garage" shall mean those Improvements which are
located on the Parking Garage Parcel.
"Parking Garage Parcel" shall mean that portion of the Real
Property more particularly described in SCHEDULE 5; provided, however, the
description on said Schedule shall be deemed to be amended for purposes of this
Agreement to reflect the description for such property on the Initialed Title
Commitment and the Survey.
"Permitted Exceptions" shall mean those exceptions set forth
on EXHIBIT D.
"Person" shall mean a natural person, partnership,
corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, Governmental Entity or other
entity or organization.
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"Personal Property" shall mean, collectively, all of the
tangible and intangible (other than goodwill and any other intangible property
that is severable from Seller's "interest in real property" within the meaning
of Section 856(d) of the Code, or any similar or successor provision thereto)
personal property constituting a portion of the Acquired Assets including,
without limitation, the Category 1 FF&E and Category 2 FF&E, each as defined in
the Master Lease, and any personal property hereafter acquired pursuant to the
Construction Agreement.
"Plan" shall mean any chapter 11 plan of reorganization with
respect to the Debtors as it may be altered, amended, modified or supplemented
from time to time in accordance with its terms, the Bankruptcy Code and the
Bankruptcy Rules.
"Prior Purchase and Sale Agreement" shall mean that certain
Agreement of Purchase and Sale, as amended, among Purchaser, as "Seller,"
Seller, as "Purchaser," and WCL, as "Guarantor," effective as of September 13,
2001.
"Purchase Money Mortgage" shall mean the Mortgage With Power
of Sale, Security Agreement, Assignments of Leases, Rents and Profits, Financing
Statement and Fixture Filing to be granted at Closing in favor of Seller by
Purchaser in a form reasonably acceptable to both Seller and Purchaser.
"Purchase Money Note" shall mean the note to be issued at
Closing by Purchaser and Communications, as co-issuers, and guaranteed by WCL,
in favor of Seller in a form reasonably acceptable to both Seller and Purchaser,
which note shall be in the principal amount of One Hundred Million Dollars
($100,000,000) and secured by the Purchase Money Mortgage.
"Purchase Price" has the meaning set forth in Section 2.02.
"Purchaser" has the meaning set forth in the preamble hereof.
"Real Property" shall mean the Center Parcel and the Parking
Garage Parcel.
"Sales Tax Certificate" has the meaning set forth in Section
2.04(g).
"Seller" has the meaning set forth in the preamble hereof.
"Settlement Agreement" shall mean the agreement dated as of
July 26, 2002 between TWC, Debtors, the Committee, and Leucadia National
Corporation, providing for, inter alia, this Agreement and the Transactions.
"Skywalk" shall mean an elevated pedestrian bridge and support
structure, connecting the Parking Garage to the Center Parcel over a portion of
South Cincinnati Avenue and a portion of Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx,
that is approximately twenty-seven feet (27') above the driving lanes of such
streets, together with the air rights for the three (3) dimensional space within
which it is suspended.
"Survey" has the meaning set forth in Section 4.06.
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"Tax" or "Taxes" shall mean all taxes, duties, levies,
interest, penalties or other assessments imposed by any Taxing Authority,
including gross receipts, excise, personal and real property (including
leaseholds and interests in leaseholds), sales, gain, use, license, custom duty,
Transfer Taxes, unemployment, capital stock, franchise, payroll, withholding,
social security, minimum estimated, profit, gift, severance, value added,
disability, premium, recapture, credit, occupation, service, leasing,
employment, stamp and other taxes, and shall include interest, penalties or
additions attributable thereto or attributable to any failure to comply with any
requirement regarding Tax Returns.
"Tax Determination" shall have the meaning set forth in
Section 6.01(c).
"Tax Return" shall mean any return (including estimated
returns), report, information return, statement, declaration or other document
(including any related or supporting information), and any amendment thereof,
filed or required to be filed with any Taxing Authority.
"Taxing Authority" shall mean any federal, state, local or
foreign governmental authority responsible for the determination, assessment or
collection of any Tax.
"Termination Date" shall have the meaning set forth in Section
7.21.
"Title Commitment" shall mean a Commitment for Title Insurance
to be issued by the Title Company on behalf of Lawyers Title Insurance
Corporation.
"Title Company" shall mean Guaranty Abstract Company of Tulsa,
Oklahoma, or another title company reasonably satisfactory to Purchaser.
"Title Policy" shall mean the 1992 ALTA owner's title
insurance policy or policies dated and effective as of the Closing Date, to be
issued by the Title Company based upon the Initialed Title Commitment in an
amount not less than the Purchase Price (and reinsured in a manner acceptable to
Purchaser).
"Title/Survey Cap" has the meaning set forth in Section 4.05.
"Transactions" shall mean all the transactions provided for or
contemplated by this Agreement.
"Transfer Tax" shall mean any federal, state, county, local,
foreign and other sales, use, transfer, conveyance, documentary transfer,
recording or other similar tax, fee or charge imposed upon the sale, transfer or
assignment of property or any interest therein or the recording thereof, and any
penalty, addition to tax or interest with respect thereto.
"TWC" shall mean The Xxxxxxxx Companies, Inc., a Delaware
corporation.
"Utility Services Agreement" shall mean the Utility Services
Agreement, dated as of April 23, 2001, between Purchaser, as "Customer," and
Seller, as "Owner," as amended from time to time.
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"WCG Bank Facility" shall mean the Amended and Restated Credit
Agreement dated as of September 8, 1999, as amended, among WCL, as borrower,
Communications, as guarantor, the Bank Agent, the Lenders, The Chase Manhattan
Bank, as syndication agent, Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxx Brothers, Inc.,
as joint lead arrangers and joint bookrunners with respect to the Incremental
Facility referred to therein, and Xxxxxxx Xxxxx Xxxxxx Inc., Xxxxxx Brothers,
Inc. and Xxxxxxx Xxxxx & Co., Inc., as co-documentation agents.
"WCL" shall have the meaning set forth in the preamble hereof.
ARTICLE II
SALE OF ACQUIRED ASSETS
Section 2.01. Sale of Acquired Assets. On the terms, and subject to the
conditions, set forth in this Agreement, Seller agrees to sell, assign,
transfer, convey and deliver to Purchaser on the Closing Date, and Purchaser
agrees to purchase from Seller on the Closing Date, all of Seller's right, title
and interest in and to the Acquired Assets (but as to any Licenses and Permits
comprising part of the Acquired Assets, only to the extent assignable), subject
to all existing leases (provided however, that the Master Lease under which
Purchaser is the lessee will be merged into the feehold and extinguished at
Closing) and agreements listed on SCHEDULE 2.01 or otherwise entered into in
accordance with the Management Agreement (including, without limitation, the
Central Plant Lease, the Construction Agreement, the Prior Purchase Agreement,
the Management Agreement and the Utility Services Agreement, as the same may be
modified pursuant to the Settlement Agreement) and Permitted Exceptions.
Section 2.02. Closing Payment. In consideration for the purchase by
Purchaser of the Acquired Assets, on the Closing Date Purchaser shall pay to
Seller (or such other party or parties as Seller shall direct) One Hundred Fifty
Million Dollars ($150,000,000) in the aggregate (the "Purchase Price") as
follows:
(a) Fifty Million Dollars ($50,000,000) (the "Cash Portion of
the Purchase Price") in immediately available funds, which shall be
reduced by the amount of $5,200,000, reflecting net credits in favor of
Purchaser pursuant to the Construction Agreement.
(b) One Hundred Million Dollars ($100,000,000) in the form of
the Purchase Money Note (which amount may be reduced in accordance with
Section 7.21 hereof).
Section 2.03. Closing. The sale referred to in Section 2.01 (the
"Closing") shall take place at 10:00 A.M., New York time, at the offices of
White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
simultaneously with the satisfaction or waiver of all of the conditions set
forth in Article V hereof, or at such other time and date as Seller and
Purchaser shall agree ("Closing Date").
Section 2.04. Deliveries by Seller. At the Closing, Seller shall
deliver or cause to be delivered to Purchaser (unless previously delivered), the
following:
(a) a duly executed and acknowledged Deed in favor of
Purchaser;
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(b) a duly executed Xxxx of Sale in favor of Purchaser;
(c) evidence reasonably satisfactory to Purchaser and the
Title Company that the Persons executing the Closing Documents on
behalf of Seller have full right, power and authority to execute same
and that Seller has the full right, power and authority to perform its
obligations thereunder;
(d) a duly executed and acknowledged certificate (the
"Non-Foreign Entity Certification") certifying that Seller is not a
"foreign person" as defined in Section 1445 of the Code in
substantially the form attached hereto as EXHIBIT C;
(e) possession of the Acquired Assets, subject to the
Permitted Exceptions;
(f) the Initialed Title Commitment;
(g) an
Oklahoma Sales Tax report to cover any sales tax
assessed on the tangible Personal Property, or the written
certification of Seller (which shall also be executed by Purchaser),
stating that no tangible Personal Property sales tax is payable;
(h) an assignment agreement, executed by Seller, assigning to
Purchaser all of Seller's right, title and interest in any general
guarantees and warranties (including the Construction Warranties) now
or hereafter given in connection with the operation, construction,
improvement, alteration or repair of the Real Property and the
Improvements;
(i) the consents listed on SCHEDULE 3.01(e);
(j) an ALTA Statement, Gap Indemnity and such other affidavits
and indemnities as may be reasonably required by the Title Company in
forms reasonably acceptable to the Title Company;
(k) the Easement for Backup Generation, duly executed and
acknowledged by Seller and its co-tenant; and
(l) all other previously undelivered documents required by
this Agreement to be delivered by Seller to Purchaser at or prior to
the Closing in connection with the Transactions.
Section 2.05. Deliveries by Purchaser. At the Closing, Purchaser shall
deliver or cause to be delivered to Seller (unless previously delivered), the
following:
(a) the Cash Portion of the Purchase Price (less the amount of
the credit specified in Section 2.02(a) hereof) by wire transfer of
immediately available funds to the account or accounts identified by
Seller;
(b) the Financing Statements and the duly executed (and
acknowledged as required) Purchase Money Note and Purchase Money
Mortgage, together with all other documents and instruments
contemplated by the foregoing;
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(c) evidence reasonably satisfactory to Seller and the Title
Company that the Persons executing the Closing Documents on behalf of
Purchaser, Communications and WCL have full right, power and authority
to execute same and that each of Purchaser, Communications and WCL has
the full right, power and authority to perform its obligations
thereunder;
(d) the Mortgage Title Policy;
(e) the duly executed Legal Opinion; and
(f) all other previously undelivered documents required by
this Agreement to be delivered by Purchaser to Seller at or prior to
the Closing in connection with the Transactions.
Section 2.06. Agreed Allocation. Purchaser and Seller agree that the
fair market value allocation of the Purchase Price among the Acquired Assets
(the "Agreed Allocation") is set forth on SCHEDULE 2.06. The provisions of this
Section 2.06 shall survive the Closing without limitation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations of Seller. Seller represents and warrants
to Purchaser as follows:
(a) Seller is (i) a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware
and (ii) authorized under the laws of the State of
Oklahoma to conduct
business in
Oklahoma;
(b) Seller has the requisite power and authority to execute
and deliver this Agreement and any other agreements or instruments
contemplated by this Agreement to be executed by it and to perform its
obligations hereunder and thereunder;
(c) This Agreement has been duly executed and delivered by
Seller and constitutes the valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms;
(d) When executed and delivered as provided in this Agreement,
each other agreement and instrument contemplated hereby to be executed
by Seller will be a valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms;
(e) Except as set forth in SCHEDULE 3.01(e), none of the
execution and delivery of this Agreement or the other agreements and
instruments contemplated by this Agreement to be executed by Seller,
the consummation by Seller of the Transactions or compliance by Seller
with any of the provisions hereof or thereof will (i) conflict with or
constitute a breach of or default under any of Seller's charter or
bylaws, (ii) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a
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default (or give rise to any third-party right of termination,
cancellation, material modification or acceleration) under, any note,
loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which Seller is a party or by which Seller
or any of its properties or assets may be bound, (iii) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to Seller or any of its properties or assets or (iv) require
any order, consent, approval or authorization of, notice to, or
declaration, filing, application, qualification or registration with,
any Person or Governmental Entity;
(f) No broker, finder or other Person acting under Seller's
authority is entitled to any broker's commission or other fee in
connection with the Transactions for which Purchaser could be
responsible;
(g) Seller has not received notice of, nor does Seller have
knowledge of, any presently pending or threatened condemnation, eminent
domain or other actions, litigation, proceedings, or any special
assessments of any nature with respect to the Acquired Asset, except as
may be set forth in the Permitted Exceptions;
(h) Except as contemplated by this Agreement and the
Transactions or as set forth on SCHEDULE 3.01(h), Seller has not
entered into any contracts or agreements which materially and adversely
affect the Acquired Assets and which will survive the Closing and be
binding on the Purchaser, other than as may be set forth in the
Permitted Exceptions or entered into pursuant to and in accordance with
the Management Agreement;
(i) The Real Property, Improvements and Personal Property are
free and clear from all liens, claims and encumbrances, other than the
Permitted Exceptions and any liens, claims and encumbrances resulting
from any act or omission of Purchaser, its Affiliates, agents,
employees, licensees, invitees or any other Person acting by or on
behalf of Purchaser;
(j) Seller has not received notice from any Governmental
Entity which has not been complied with asserting that the Acquired
Assets are in violation of any laws, ordinances and regulations
(including, but not limited to, any environmental and hazardous
substance laws, ordinances and regulations); and
(k) Seller has obtained all Licenses and Permits required in
connection with the Acquired Assets by any Governmental Entity, and
Seller is not aware of any violations thereunder.
(l) Except for the representations and warranties contained in
this Section 3.01, neither Seller nor any other Person makes any other
express or implied representation or warranty to Purchaser or upon
which Purchaser may rely in connection with this Agreement or the
Transactions.
Section 3.02. Representations of Purchaser. Purchaser hereby represents
and warrants to Seller as follows:
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(a) Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the state of
Delaware;
(b) Purchaser has the requisite power and authority to execute
and deliver this Agreement and any other agreements or instruments
contemplated by this Agreement to be executed by Purchaser (including
without limitation the Purchase Money Mortgage and the Purchase Money
Note) and to perform its obligations hereunder and thereunder;
(c) This Agreement has been duly executed and delivered by
Purchaser and this Agreement constitutes the valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance
with its terms;
(d) When executed and delivered as provided in this Agreement,
each other agreement and instrument contemplated hereby to be executed
by Purchaser will be a valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms;
(e) Except as set forth in SCHEDULE 3.02(e), none of the
execution and delivery of this Agreement and any other agreements or
instruments contemplated by this Agreement to be executed by Purchaser
(including without limitation the Purchase Money Mortgage and the
Purchase Money Note), nor the consummation by Purchaser of the
Transactions or compliance by Purchaser with any of the provisions
hereof or thereof will (i) conflict with or constitute a breach of or
default under any of Purchaser's charter or operating agreement, (ii)
result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or
acceleration) under, any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
Purchaser is a party or by which Purchaser or any of its properties or
assets may be bound, (iii) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation application to Purchaser or any
of its properties or assets or (iv) require any order, consent,
approval or authorization of, notice to, or declaration, filing,
application, qualification or registration with, any Person or
Governmental Entity;
(f) As lessee under the Master Lease, Purchaser is currently
in possession of the Real Property and Improvements and is familiar
with the other Acquired Assets and (i) is a sophisticated Person with
respect to the purchase of the Acquired Assets, (ii) is able to bear
the economic risk associated with the purchase of the Acquired Assets,
(iii) has adequate information concerning the business and financial
condition of the Debtors and the status of the Bankruptcy Case and the
Acquired Assets to make an informed decision regarding the purchase of
the Acquired Assets, (iv) has such knowledge and experience, and has
made investments of a similar nature, so as to be aware of the risks
and uncertainties inherent in the purchase of rights and assumption of
liabilities of the type contemplated in this Agreement and (v) has
independently and without reliance upon Seller, and based on such
information as it has deemed appropriate, made its own analysis and
decision to enter into this Agreement, except that Purchaser has relied
upon Seller's express representations and warranties in this Agreement.
Purchaser
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acknowledges that Seller has not given Purchaser any investment advice,
credit information or opinion on whether the purchase of the Acquired
Assets is prudent; and
(g) No broker, finder or other Person acting under the
authority of Purchaser is entitled to any broker's commission or other
fee in connection with the Transactions for which Seller could be
responsible.
Section 3.03. Representations of Communications. Communications hereby
represents and warrants to Seller as follows:
(a) Communications is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware;
(b) Communications has the requisite power and authority to
execute and deliver this Agreement and any other agreements or
instruments contemplated by this Agreement to be executed by
Communications (including without limitation the Purchase Money Note)
and to perform its obligations hereunder and thereunder;
(c) This Agreement has been duly executed and delivered by
Communications and this Agreement constitutes the valid and binding
obligation of Communications, enforceable against Communications in
accordance with its terms;
(d) When executed and delivered as provided in this Agreement,
each other agreement and instrument contemplated hereby to be executed
by Communications will be a valid and binding obligation of
Communications, enforceable against Communications in accordance with
its terms; and
(e) Except as set forth in SCHEDULE 3.02(e), none of the
execution and delivery of this Agreement and any other agreements or
instruments contemplated by this Agreement to be executed by
Communications (including without limitation the Purchase Money Note),
nor the consummation by Communications of the Transactions or
compliance by Communications with any of the provisions hereof or
thereof will (i) conflict with or constitute a breach of or default
under any of Communications' charter or by-laws, (ii) result in a
violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration)
under, any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Communications is a party
or by which Communications or any of its properties or assets may be
bound, (iii) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation application to Communications or any of its
properties or assets or (iv) require any order, consent, approval or
authorization of, notice to, or declaration, filing, application,
qualification or registration with, any Person or Governmental Entity.
Section 3.04. Representations of WCL. WCL hereby represents and
warrants to Seller as follows:
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(a) WCL is a limited liability company duly organized, validly
existing and in good standing under the laws of the state of Delaware;
(b) WCL has the requisite power and authority to execute and
deliver this Agreement and any other agreements or instruments
contemplated by this Agreement to be executed by WCL (including without
limitation the Purchase Money Note) and to perform its obligations
hereunder and thereunder;
(c) This Agreement has been duly executed and delivered by WCL
and this Agreement constitutes the valid and binding obligation of WCL,
enforceable against WCL in accordance with its terms;
(d) When executed and delivered as provided in this Agreement,
each other agreement and instrument contemplated hereby to be executed
by WCL will be a valid and binding obligation of WCL, enforceable
against WCL in accordance with its terms; and
(e) Except as set forth in SCHEDULE 3.02(e), none of the
execution and delivery of this Agreement and any other agreements or
instruments contemplated by this Agreement to be executed by WCL
(including without limitation the Purchase Money Note), nor the
consummation by WCL of the Transactions or compliance by WCL with any
of the provisions hereof or thereof will (i) conflict with or
constitute a breach of or default under any of WCL's charter or
by-laws, (ii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to
any third party right of termination, cancellation, material
modification or acceleration) under, any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind
to which WCL is a party or by which WCL or any of its properties or
assets may be bound, (iii) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation application to WCL or any of its
properties or assets or (iv) require any order, consent, approval or
authorization of, notice to, or declaration, filing, application,
qualification or registration with, any Person or Governmental Entity.
Section 3.05. Survival. All the representations and warranties set
forth in this Article III shall survive the Closing.
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 4.01. Pre-Closing Covenants. Seller covenants and agrees that
from and after the date of this Agreement Seller shall:
(a) not amend any lease concerning the Acquired Assets nor
execute any new lease, license, or other agreement affecting the
ownership or operation of the Acquired Assets, without Purchaser's
prior written approval, except in accordance with the terms of the
Management Agreement;
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(b) not enter into any contract with respect to the ownership
and operation of the Acquired Assets that will survive the Closing,
without Purchaser's prior written consent, except in accordance with
the terms of the Management Agreement;
(c) not take any action that would reasonably be expected to
adversely affect the use, occupancy or value of the Acquired Assets
except as permitted in respect of Seller's rights set forth in the
paragraph defining "Acquired Assets" in Section 1.01;
(d) promptly deliver to Purchaser any notice received by
Seller (i) asserting a violation of Applicable Law or (ii) in respect
of a condemnation of the Real Property, the Improvements or any portion
of the Acquired Assets that constitute real property interests; and
(e) operate and manage the Acquired Assets in accordance with
the terms of the Management Agreement.
Section 4.02. Taxes; Closing Costs. Purchaser and Seller each agree to
pay their respective attorneys' fees and one-half of any and all Taxes assessed
or levied as a result of the execution and delivery of this Agreement or the
Closing Documents (including all recording and filing fees and other charges in
respect thereof) and all fees, expenses and charges incurred in connection with
the Closing and/or the Transactions; provided, however, all fees, expenses,
premiums and charges incurred by or on behalf of, or payable to, the Title
Company in connection with the issuance of the Title Policy and Mortgage Title
Policy shall be borne and paid solely by Purchaser.
Section 4.03. Reserved.
Section 4.04. Closing Prorations (a) Purchaser acknowledges and agrees
that Purchaser is now and after Closing shall continue to be solely responsible
for all real property and personal property ad valorem taxes and any annual
special assessments relating to the Acquired Assets, and therefore, such Taxes
will not be pro rated in connection with the transfer of the Acquired Assets.
(b) All rents and other charges under the Master Lease shall
be pro rated between Seller and Purchaser on a per diem basis as of 11:59 P.M.
on the day immediately preceding the Closing Date. For purposes of such pro
rations, Purchaser shall be deemed the owner of the Acquired Assets for the
entire Closing Date.
Section 4.05. Title Insurance. Seller will use its best efforts to
assist Purchaser in obtaining the Title Commitment and Title Policy, within the
time periods set forth herein, including removing from title any liens or
encumbrances which are not Permitted Exceptions; provided, however, that Seller
shall not be obligated to cure or eliminate any encumbrances (other than
existing mortgage and mechanic liens) to the extent that the cost to cure or
eliminate same would exceed $100,000 (the "Title/Survey Cap"), but if Seller
elects not to so cure or eliminate same, then Purchaser's sole remedy shall be
that Purchaser shall be entitled to elect to terminate this Agreement or accept
title and survey subject to such items after taking a $100,000 credit against
the Cash Portion of the Purchase Price. Purchaser and Seller agree that the
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Title/Survey Cap shall serve as a limitation of Seller's expenditures in
compliance with its obligation hereunder to cure encumbrances and encroachments
related to both title and survey.
Section 4.06. Surveys. Seller shall deliver to Purchaser prior to
Closing a survey of the Real Property, dated no earlier than the date of this
Agreement, prepared by a surveyor licensed in
Oklahoma and satisfactory to the
Purchaser, and conforming to 1999 ALTA/ACSM Minimum Detail Requirements for Land
Title Surveys, including Table A Items Nos. 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c),
8, 9, 10, 11(b)(2), 13, 14, 15 and 16, and such other standards as the Title
Company and Purchaser reasonably require as a condition to the removal of any
survey exceptions from the Title Commitment, and certified to Purchaser, Seller
and the Title Company, in a form and with a certification satisfactory to each
of such parties (the "Survey"). The Survey shall not disclose any encroachment
from or onto any of the Real Property or any portion thereof or any other survey
defect which has not been cured or insured over to Purchaser's reasonable
satisfaction prior to the Closing; provided, however, Seller shall not be
obligated to cure or eliminate any such encroachments to the extent that the
cost to cure or eliminate the same exceeds the Title/Survey Cap when combined
with the costs to cure liens or encumbrances against title. Seller shall pay or
commit to pay all fees, costs and expenses with respect to the Survey.
Section 4.07. No Recording. The parties hereto agree that neither this
Agreement nor any memorandum or affidavit concerning it shall be recorded in the
land records of Tulsa County; provided, however, that upon Closing, the Deed,
the Purchase Money Mortgage, the Financing Statements and any other Closing
Documents or instruments necessary or desirable in Seller's opinion to
consummate or evidence the Transactions shall be so recorded and filed, as
applicable and appropriate.
Section 4.08. Condition of Assets. SUBJECT ONLY TO ANY OBLIGATIONS OF
SELLER WHICH MAY EXIST PURSUANT TO THE TERMS OF THE CONSTRUCTION AGREEMENT OR
PRIOR PURCHASE AND SALE AGREEMENT TO THE EXTENT NOT PERFORMED PRIOR TO THE
CLOSING, EACH OF PURCHASER AND THE GUARANTORS AGREES THAT AS PART OF THE
CONSIDERATION FOR SELLER ENTERING INTO THIS AGREEMENT, THE ACQUIRED ASSETS BEING
SOLD HEREUNDER ARE BEING SOLD AND CONVEYED (AND ARE BEING ACCEPTED BY PURCHASER)
ON AN "AS IS, WHERE IS" BASIS WITHOUT ANY REPRESENTATION AND WARRANTY
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL REPRESENTATION OR WARRANTY)
OTHER THAN THE TITLE REPRESENTATION AND WARRANTY EXPRESSLY CONTAINED HEREIN
WHICH IS IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED, AND EACH OF
PURCHASER AND THE GUARANTORS HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER
EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS WITH REGARD TO THE
CONDITION OF THE ACQUIRED ASSETS AND ALL OBLIGATIONS AND LIABILITIES OF SELLER
FOR OR WITH RESPECT TO DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES THEREFROM, AND
ALL RIGHTS, CLAIMS AND REMEDIES OF EACH OF PURCHASER AND THE GUARANTORS, EXPRESS
OR IMPLIED, ARISING OUT OF LAW OR OTHERWISE WITH RESPECT THERETO, THE OWNERSHIP,
USE OR OPERATION OF THE ACQUIRED ASSETS AND ANYTHING GIVEN OR SOUGHT TO BE
IMPLIED FROM ANYTHING
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SAID OR WRITTEN IN THE NEGOTIATIONS BETWEEN THE PARTIES HERETO OR THEIR
REPRESENTATIVES PRIOR TO ENTERING INTO THIS AGREEMENT WITH RESPECT THERETO. ANY
STATUTORY OR OTHER WARRANTY, CONDITION, DESCRIPTION OR REPRESENTATION, EXPRESS
OR IMPLIED, AS TO THE STATE, QUALITY OR FITNESS OF THE ACQUIRED ASSETS
(ENVIRONMENTAL OR OTHERWISE) IS EXPRESSLY EXCLUDED, INCLUDING BUT NOT LIMITED
TO, AS APPLICABLE: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; (ii)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE; (iii) ANY OBLIGATION OR LIABILITY WITH RESPECT TO ANY ACTUAL OR
ALLEGED INFRINGEMENT OF PATENTS, LICENSES OR THE LIKE, OR ANY OTHER INTELLECTUAL
PROPERTY; (iv) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT,
WHETHER OR NOT ARISING FROM EACH PARTY'S OR ITS ASSIGNS' NEGLIGENCE, ACTUAL OR
IMPUTED; AND (v) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF
OR DAMAGE TO THE ACQUIRED ASSETS, FOR LOSS OF USE, REVENUE OR PROFIT WITH
RESPECT TO PURCHASER OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF WHATEVER DESCRIPTION. PURCHASER'S OBLIGATION TO PROCEED TO AND
CONCLUDE CLOSING HEREUNDER IS CONDITIONED SOLELY ON THE SELLER'S COMPLIANCE WITH
SECTION 5.01 AND EACH OF PURCHASER AND THE GUARANTORS AGREES THAT ANY
NON-COMPLIANCE EXISTING ON THE DATE HEREOF OR AT CLOSING BY ANY PARTY (OTHER
THAN SELLER) TO ANY PROPERTY DOCUMENT OR OTHER DOCUMENTS OR AGREEMENT RELATING
TO THE ACQUIRED ASSETS, SHALL NOT CONSTITUTE A DEFAULT BY SELLER HEREUNDER OR
OTHERWISE PERMIT PURCHASER OR EITHER OF THE GUARANTORS TO TERMINATE THIS
AGREEMENT OR TO OBJECT TO OR FAIL TO CONSUMMATE THE CLOSING ON THE CLOSING DATE.
Section 4.09. Make-Whole Provision. (a) As more explicitly set
forth in the Purchase Money Note and Purchase Money Mortgage, if within one year
of the date on which the Settlement Agreement is executed and filed with the
Bankruptcy Court, Purchaser or any of its Affiliates directly or indirectly
exchanges or disposes of (or enters into an agreement or agreements with respect
thereto) any or all of the Acquired Assets (to any transferee other than an
entity which has the same ultimate beneficial ownership as the transferor has
immediately prior to such transfer) for an aggregate sales price in cash,
obligations or other consideration in an amount greater than One Hundred Fifty
Million Dollars ($150,000,000), Purchaser shall, on the date on which the
consummation of such a transaction occurs, (i) prepay the Purchase Money Note in
full and (ii) pay to Seller in immediately available funds (except as provided
in Section 4.09(b)) to an account designated by Seller in writing, an amount
equal to the product of (x) Fifty Percent (50%) multiplied by (y) the excess of
the aggregate sales price over (A) One Hundred Fifty Million Dollars
($150,000,000) less (B) the amount equal to (i) the aggregate consideration
received by Seller or any of its Affiliates in connection with the disposition
of the Aircraft Dry Leases or (ii) the amount of proceeds received by Seller or
any of its Affiliates in connection with the refinancing of the Aircraft
pursuant to Section 7.21, which obligations shall be secured by the Purchase
Money Mortgage. Purchaser agrees that it will notify Seller in writing within
three (3) Business Days of entering into a transaction or agreement of the type
specified in this Section 4.09.
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(b) In the event the consideration received or to be received by
Purchaser in a transaction of the type set forth in Section 4.09(a) is to be
paid in whole or in part other than in Dollars, for purposes of Section 4.09(a),
the value of such consideration shall be mutually agreed between Purchaser and
Seller. Notwithstanding anything in this Agreement to the contrary, in the event
Purchaser receives non-Dollar consideration in a transaction of the type set
forth in Section 4.09(a), unless otherwise agreed between Purchaser and Seller,
any payment by Purchaser to Seller under Section 4.09(a) shall be made pro rata
(based on the amount of non-Dollar consideration relative to the amount of
Dollar consideration received by Purchaser in such transaction(s)) in such
non-Dollar consideration.
(c) The provisions of this Section 4.09 are set forth in more detail in
the Purchase Money Note and Purchase Money Mortgage. In the event of any
inconsistency between the provisions of this Section 4.09 and the provisions of
the Purchase Money Note and Purchase Money Mortgage, the Purchase Money Note and
Purchase Money Mortgage shall supersede and control.
Section 4.10. Covenant to Satisfy Conditions. Each party hereto agrees
to use all commercially reasonable best efforts to insure that the conditions
set forth in Article V hereof are satisfied, insofar as such matters are within
the control of such party.
Section 4.11. Substitution of New Communications. In the event that
Communications is reorganized under the Plan and/or a new entity succeeds to the
equity and assets of Communications under the Plan (such reorganized or
successor entity, "New Communications") prior to the Closing Date, the
representations and warranties of Communications set forth herein shall apply to
the New Communications as of the Closing Date and New Communications shall, with
such changes as are necessary or desirable in the opinion of Seller or its
counsel, (a) execute and deliver, as a co-issuer, the Purchase Money Note, (b)
execute and deliver or cause the execution and delivery of such other documents
and instruments required to be delivered on the Closing Date, and shall execute
and deliver or cause the execution and delivery of such other documents and
instruments and take such further actions, as may be necessary in order to
consummate the Transactions and (c) shall otherwise assume all of
Communications' rights and obligations under this Agreement and the Closing
Documents, and otherwise in respect of the Transactions.
Section 4.12. Further Assurances. Each party shall execute and deliver
or cause the execution and delivery of such other documents and instruments and
take such further actions, as may be necessary in order to ensure that the other
party receives the full benefit of this Agreement. The obligations set forth in
this Section 4.12 shall survive the Closing.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01. Conditions to Purchaser's Obligation to Effect the
Closing. The obligation of Purchaser to consummate the Closing shall be subject
to the satisfaction on or prior to the Closing Date of each of the following
conditions, unless validly waived in writing by Purchaser:
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(a) Representations and Warranties. All of the representations
and warranties of Seller set forth in this Agreement that are qualified
as to materiality shall be true and correct and any such
representations and warranties that are not so qualified shall be true
and correct in all material respects, in each case as of the date
hereof and as of the Closing Date, other than representations and
warranties that speak as of a specific date or time (which need only be
so true and correct as of such date or time).
(b) Seller's Performance of Covenants. Seller shall not have
failed to perform in any material respect any obligation or to comply
in any material respect with any agreement or covenant of Seller to be
performed or complied with by it under this Agreement.
(c) Injunctions. On the Closing Date, there shall not be any
injunction, writ, preliminary restraining order or other order in
effect of any nature issued by a Governmental Entity of competent
jurisdiction that restrains, prohibits or limits, in whole or in part,
the consummation of the Transactions.
(d) Consents. All consents identified in SCHEDULES 3.01(e) and
3.02(e) which are necessary to effect the Closing shall have been
obtained.
(e) Closing Deliveries. Seller shall have made or cause to
have been made all closing deliveries to Purchaser as set forth in
Section 2.04.
The foregoing conditions are for the sole benefit of Purchaser and may be waived
by Purchaser, in whole or in part, at any time and from time to time in its sole
discretion.
Section 5.02. Conditions to Seller's Obligation to Effect the Closing.
The obligation of Seller to consummate the Closing shall be subject to the
satisfaction on or prior to the Closing Date of each of the following
conditions, unless waived in writing by Seller:
(a) Representations and Warranties. All of the representations
and warranties of each of Purchaser and Guarantors set forth in this
Agreement that are qualified as to materiality shall be true and
correct and any such representations and warranties that are not so
qualified shall be true and correct in all material respects, in each
case as of the date hereof and as of the Closing Date, other than
representations and warranties that speak as of a specific date or time
(which need only be so true and correct as of such date or time).
(b) Purchaser's Performance of Covenants. Neither Purchaser
nor either Guarantor shall have failed to perform in any material
respect any obligation or to comply in any material respect with any
agreement or covenant to be performed or complied with by it under this
Agreement.
(c) Injunctions. On the Closing Date, there shall not be any
injunction, writ, preliminary restraining order or other order in
effect of any nature issued by a Governmental Entity of competent
jurisdiction that restrains, prohibits or limits, in whole or in part,
the consummation of the Transactions.
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(d) Consents. All consents identified in SCHEDULE 3.02(e) and
necessary to effect the Closing shall have been obtained.
(e) Closing Deliveries. Purchaser shall have made or cause to
have been made all closing deliveries to Seller as set forth in Section
2.05.
(f) Claims Purchase. The Claims Purchase shall have been
consummated or shall be consummated concurrently with the Closing.
The foregoing conditions are for the sole benefit of Seller and may be waived by
Seller, in whole or in part, at any time and from time to time in its sole
discretion.
ARTICLE VI
TERMINATION
Section 6.01. Termination. This Agreement may be terminated or
abandoned at any time prior to the Closing Date:
(a) By the mutual written consent of Purchaser and Seller;
(b) By Purchaser or Seller by giving notice to the other of
such termination if any Governmental Entity shall have issued an order,
decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the consummation of the Transactions and such
order, decree, ruling or other action shall have become final and
non-appealable;
(c) By Purchaser or Seller by giving notice to the other of
such termination if the Bankruptcy Court denies approval of the
Settlement Agreement;
(d) By Purchaser by giving notice to Seller if an order of the
Bankruptcy Court approving the Settlement Agreement (including a
determination (the "Tax Determination") by the Bankruptcy Court that no
sales, use, excise tax or similar tax imposed pursuant to 68 O.S.
Section 1354 by the State of
Oklahoma or by the City or County of Tulsa
or any other applicable local government authority shall be imposed on
the Transactions) is not entered by October 15, 2002; provided,
however, in the event the Tax Determination is not so obtained,
Purchaser and Seller agree, subject to their respective rights to
terminate this Agreement pursuant any provision hereof other than this
Section 6.01(d), that Seller shall transfer its interest in the
Acquired Assets to a limited liability company and shall cause the
membership interests in such company to be sold to Purchaser, and
Purchaser shall purchase same, on the terms and conditions provided
herein, to the extent applicable to such transaction, and otherwise on
customary terms and conditions consistent with this Agreement.
Purchaser shall pay all fees, costs, expenses, Taxes (including the
Taxes which are the subject of the Tax Determination) and charges,
other than Seller's attorneys' fees, in connection with the
transactions contemplated by this Agreement, including, without
limitation, such fees, costs, expenses or Taxes resulting from, the
restructuring of this Agreement pursuant to the foregoing; and/or
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(e) By Purchaser or Seller by giving notice to the other of
such termination if the Closing has not occurred on or before February
28, 2003; unless the failure of such consummation shall be due to the
failure of such party to comply in all material respects with the
representations, warranties, agreements and covenants contained herein
or to be performed by such party on or prior to February 28, 2003.
Section 6.02. Effect of Termination. In the event of the termination or
abandonment of this Agreement by any party hereto pursuant to the terms of this
Agreement, (i) written notice thereof shall forthwith be given to the other
party specifying the provision hereof pursuant to which such termination or
abandonment of this Agreement is made, (ii) the Master Lease shall continue in
full force and effect without regard to this Agreement and (iii) there shall be
no liability or obligation thereafter on the part of Purchaser or Seller except
(A) as set forth in Section 7.07, (B) for fraud, and (C) for breach of this
Agreement prior to such termination or abandonment of the Transactions.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the Transactions shall be paid by
the party incurring such expenses, except as specifically provided to the
contrary in this Agreement or the Closing Documents.
Section 7.02. Extension; Waiver. At any time prior to the Closing, each
of the parties hereto may (i) extend the time for the performance of any of the
obligations or acts of any other party hereto, (ii) waive any inaccuracies in
the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto, (iii) waive compliance with any of the
agreements of the other party contained herein, or (iv) waive any condition to
its obligations hereunder. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party.
Section 7.03. Reserved.
Section 7.04. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given when mailed, delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by such party by like notice):
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if to Purchaser to:
Xxxxxxxx Technology Center, LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Mail Drop 15
Attention: P. Xxxxx Xxxxxxx, General Counsel
Facsimile: (000) 000-0000
if to Seller to:
Xxxxxxxx Headquarters Building Company
Xxx Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Mail Drop 00-0
Xxxxxxxxx: Xxxx Xxxxxx, Xxx.
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
and
White & Case LLP
First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address, telecopier number or person's
attention as a party may from time to time designate in writing in accordance
with this Section. Each notice or other communication given to any party hereto
in accordance with the provisions of this Agreement shall be deemed to have been
received (a) on the Business Day it is sent, if sent by personal delivery or
telecopied, or (b) on the first Business Day after sending, if sent by overnight
delivery, properly addressed and prepaid or (c) upon receipt, if sent by mail
(regular, certified or registered); provided, however, that notice of change of
address shall be effective only upon receipt. The parties agree that delivery of
process or other papers in connection with any action or proceeding in
connection with this Agreement in the manner provided in this Section 7.04, or
in such other manner as may be permitted by Applicable Law, shall be valid and
sufficient service thereof.
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Section 7.05. Entire Agreement; Amendment. This Agreement and the
Transactions constitute the entire agreement and understandings, both written
and oral, among the parties with respect to the subject matter hereof and
thereof and, except as expressly provided herein (including, without limitation,
as provided Sections 7.17 and 7.18) or therein, supersede and cancel all prior
agreements, negotiations, correspondence, undertakings, understandings and
communications of the parties, oral and written, with respect to the subject
matter hereof, including without limitation, the Master Lease, which shall be
merged into the feehold and extinguished at Closing. This Agreement may only be
modified or amended by a written instrument executed by the parties hereto.
Section 7.06. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Oklahoma (without giving
effect to the provisions thereof relating to conflicts of law).
Section 7.07. Remedies. (a) The parties hereto acknowledge and agree
that any breach of the terms of this Agreement which is not cured within the
applicable cure period set forth in Section 7.07(b), would give rise to
irreparable harm for which money damages alone would not be an adequate remedy
and accordingly the parties hereto expressly agree that the non-defaulting party
shall be entitled to exercise any and all rights and remedies for such breach
that it may have under applicable law including, without limitation, specific
performance and injunctive or other equitable relief without the necessity of
proving the inadequacy of money damages as a remedy or posting a bond or other
security in connection with such remedy; provided however, in no event shall the
Guarantors be entitled to declare any default or pursue any rights or remedies
against either Seller or Purchaser based upon any alleged default by either of
such parties under this Agreement. If any litigation is commenced to enforce
this Agreement or for any other remedy arising from a breach hereof, the
prevailing party shall be entitled to an award for its reasonable fees and
expenses in connection with such litigation.
(b) In the event there is a default by either Purchaser or
Seller under the terms of this Agreement, the non-defaulting party shall give
written notice of such default (with sufficient specificity to allow the
defaulting party to determine the nature and extent of such default and to the
extent possible, the manner in which such default can be remedied), and a period
of thirty (30) days thereafter in which the defaulting party may cure such
default, provided however, with respect to any such cure which by its nature,
can not be accomplished during such period, such period shall be extended so
long as the defaulting party has commenced such cure during such thirty (30) day
period, and thereafter continuously and diligently prosecutes such cure
thereafter. In the event a cure by the defaulting party is accomplished within
such period, the parties shall be restored to their relative positions prior to
the occurrence of such default as if no such default had taken place. The
provisions of this Section 7.07 shall survive the Closing without limitation.
Section 7.08. Jurisdiction. Purchaser and Seller each hereby
irrevocably and unconditionally submit to the nonexclusive jurisdiction of any
Oklahoma State court or Federal court of the United States of America sitting in
Tulsa County, and any appellate court from any thereof, but solely in any action
or proceedings to enforce this Agreement. Each of the parties hereto agrees that
a final judgment in any such action or proceeding will be conclusive and may
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be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
Section 7.09. Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts
and by facsimile, with the same effect as if all parties had signed the same
document. All such counterparts are to be deemed an original, construed together
and constitute one and the same instrument.
Section 7.10. Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any jurisdiction, will, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision will be interpreted to be only so broad as is enforceable.
Section 7.11. Headings. The headings of the paragraphs of this
Agreement are inserted for convenience only and not to affect the interpretation
hereof.
Section 7.12. Assignment. Neither this Agreement nor the rights or the
obligations of any party hereto are assignable in whole or in part (whether by
operation of law or otherwise), without the written consent of the other party
and any attempt to do so in contravention of this Section 7.12 will be void.
Section 7.13. Successors and Assigns. This Agreement, including the
representations, warranties and covenants contained in this Agreement, shall
inure to the benefit of, be binding upon and be enforceable by and against the
parties and their respective successors and permitted assigns.
Section 7.14. No Third-Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto, their respective successors and permitted
assigns, and the Persons identified as beneficiaries herein.
Section 7.15. Publicity. The parties agree that until the filing of the
Plan, or the date the Transactions are terminated or abandoned pursuant to
Article VI, neither Seller nor Purchaser nor any of their respective Affiliates,
shall issue or cause the publication of any press release or other public
announcement with respect to this Agreement or the Transactions without prior
consultation with the other(s), except as may be (a) required by Applicable Law,
which shall include such filings and/or statements as any party shall determine
to be necessary or advisable in its reasonable judgment in order to comply with
its obligations under the Securities Exchange Act of 1934, as amended, or (b)
appropriate to the Debtors' administration of the Bankruptcy Case.
Section 7.16. Interpretation. When a reference is made in this
Agreement to a section, article, paragraph, exhibit or schedule, such reference
shall be to a section, article, paragraph, exhibit or schedule of this Agreement
unless clearly indicated to the contrary.
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(a) Whenever the words "include", "includes" or "including"
are used in this Agreement they shall be deemed to be followed by the
words "without limitation."
(b) The words "hereof", "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this
Agreement.
(c) The meaning assigned to each term defined herein shall be
equally applicable to both the singular and the plural forms of such
term, and words denoting any gender shall include all genders. Where a
word or phrase is defined herein, each of its other grammatical forms
shall have a corresponding meaning.
(d) A reference to any party to this Agreement or any other
agreement or document shall include such party's predecessors,
successors and permitted assigns.
(e) A reference to any legislation or to any provision of any
legislation shall include any amendment to, and any modification or
re-enactment thereof, any legislative provision substituted therefor
and all regulations and statutory instruments issued thereunder or
pursuant thereto.
(f) References to Dollars or $ are to United States Dollars.
Section 7.17. Survival of Construction Obligations. Nothing contained
in this Agreement, nor the closing of the Transactions contemplated hereby,
shall in any way affect, modify, restrict or diminish any rights and obligations
of Seller and Purchaser which may exist pursuant to the terms, covenants or
conditions of the Construction Agreement or the Prior Purchase and Sale
Agreement, including, without limitation, any insurance and indemnity
obligations, as the same may be modified by the Settlement Agreement.
Section 7.18. Survival of Central Plant Lease. Nothing contained in
this Agreement, nor the closing of the Transactions contemplated hereby, shall
in any way modify, restrict or diminish any of the rights, obligations or
interests of the Seller or Purchaser under the Central Plant Lease, which shall
remain in full force and effect for all purposes according to its terms without
regard to (and without merger into or with) this Agreement and the Transactions
contemplated hereby, as the same may be modified by the Settlement Agreement.
Section 7.19. AFE's. The parties hereby agree to the following
regarding Seller's obligation to fund the Construction Contracts, the Interior
Furniture and Fixtures Contracts, and the Future Interior Furniture and Fixtures
Contracts (all as defined in the Construction Agreement, but collectively
referred to for purposes of this Section 7.19 as the "Contracts"):
(a) Seller shall continue to reimburse Purchaser for invoices
paid by Purchaser pursuant to the terms of the Construction Agreement
and the Contracts; the parties agree to continue their current course
of dealing with regard to such reimbursement processes;
(b) Seller's obligation for reimbursement under subparagraph
(a) above shall be limited to a total reimbursement of $11,087,612.00
as of July 1, 2002 (the "Total Reimbursement"); provided, however, upon
completion of the Contracts and payment by
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Purchaser of all outstanding invoices thereunder, Seller will pay to
Purchaser the difference, if any, between the Total Reimbursement and
the total amount reimbursed by Seller to such date. Seller shall pay
any difference remaining to Purchaser within thirty (30) days of
receipt of a detailed accounting of the amount due; if there are any
disputes as to such amount due, Seller and Purchaser agree to work
together in good faith to promptly resolve the dispute, and Seller
shall pay any undisputed amount prior to expiration of the thirty-day
period referred to above; and
(c) Purchaser and Seller agree on the good faith estimate of
$465,000 for the completion of the corridor connection between the
Center and the adjoining Bank of Oklahoma Tower. Completion thereof
shall be the sole responsibility of Seller, pursuant to Purchaser's
sign-off and acceptance of construction drawings. No "true-up" shall be
made between Purchaser and Seller upon completion of the corridor
between the Center and the adjoining Bank of Oklahoma Tower (the
"Corridor"). Purchaser agrees that upon expenditure by Seller of the
Total Reimbursement and the completion of the Corridor, Seller shall
have fulfilled its obligation in connection with the AFE's under the
Contracts and the Construction Agreement, and in no event shall
additional sums of money be due Purchaser in connection therewith;
provided, however, the foregoing shall not be construed to limit
Seller's obligations to expend money to fulfill Seller's other
surviving obligations under the Construction Agreement.
Section 7.20. Continuing Cooperation. Seller and Purchaser acknowledge
and agree that the nature of the transactions contemplated by this Agreement
necessitate that both before and after the Closing Date, both Seller and
Purchaser, together with their respective Affiliates, will need to work together
and cooperate on a continuing basis to (i) insure the satisfaction of the
Seller's surviving obligations under this Agreement, the Construction Agreement
and the Prior Purchase and Sale Agreement. Seller and Purchaser agree to
cooperate in good faith and to cause each of their respective officers,
employees, representatives, affiliates, agents and contractors to cooperate in
good faith with the other party and all of its respective officers, employees,
representatives, affiliates, agents and contractors, to accomplish such goals,
Seller and Purchaser hereby acknowledging that such cooperation shall work for
the mutual benefit of both parties.
Section 7.21. Disposition of Aircraft Dry Leases. Seller, WCL and
Purchaser agree that (A) TWC and Seller shall have the exclusive right to
dispose of or refinance the Aircraft Dry Leases on commercially reasonable terms
and at market rates prior to the Closing Date and (B) if TWC and Seller shall
not have so disposed of or refinanced the Aircraft Dry Leases by the Closing
Date, then on the Closing Date, TWC shall terminate the Aircraft Dry Leases and
cause to be transferred to WCL or its designee, at the option of WCL, (i) title
to the Aircraft (in which case the Purchaser shall be responsible for paying all
applicable sales/excise taxes) or (ii) the entire ownership interest in the
entity holding title to the Aircraft. Any such transfer shall be effectuated
pursuant to documentation reasonably acceptable to the parties, containing such
representations and warranties as are appropriate for such a transaction. Upon
such transfer, WCL shall thereafter have the exclusive right to dispose of or
refinance the Aircraft on commercially reasonable terms and at market rates. The
Purchaser shall cause the net proceeds of any such disposition or refinancing
(collectively, a "Disposition") to be paid at the closing of
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such Disposition to Seller or its designee. If such Disposition does not occur
on or before the day which is 180 days after the Closing Date (the "Termination
Date"), then WCL shall pay to TWC within three (3) Business Days after the
Termination Date, an amount (the "Fee") equal to 3 times the difference between
(a) the amount of the last (monthly) installment of Rent (as such term is
defined in each Aircraft Dry Lease) under each of the Aircraft Dry Leases which
would have been payable prior to the Termination Date if the Aircraft Dry Leases
were then still in effect and (b) that portion of the Monthly Debt Service (as
defined below) payment which is attributable to $20,000,000 of principal under
the Purchase Money Note. The Fee shall not be applied against the principal of
the Purchase Money Note. On the Termination Date, all accrued and unpaid
interest on the Purchase Money Note, together with interest which would accrue
thereunder through the last day of the month in which such Termination Date
occurs, shall be paid. Thereafter, commencing on the first day of the second
month which commences after the Termination Date, the monthly installments of
principal and interest under the Purchase Money Note (the "Monthly Debt
Service") shall be changed to equal the sum of (A) the monthly payment amount
which would be necessary to amortize a principal amount of $80,000,000 with
interest on the unpaid principal thereof at a rate of 7% per annum in equal
monthly installments over 360 months (but there shall be no corresponding
reduction of the principal amount of the Purchase Money Note or extension of the
maturity date thereof); and (B) the monthly Rent which would have been payable
under each of the Aircraft Dry Leases (if they were then still in effect). A
portion of each monthly Rent payment referred to in clause (B) above equal to
the sum of the portions of the corresponding payments for the corresponding
month under the Aircraft Dry Leases which would have been applied to principal
thereunder (the "Allocated Lease Principal") shall be applied against the
principal of the Purchase Money Note. Thereafter, upon the Disposition of the
Aircraft, and application of the proceeds thereof against the principal of the
Purchase Money Note (i) the sums specified in clause (B) above shall no longer
be payable by WCL; and (ii) the fixed monthly payment amount referred to in
clause (A) above shall, for the period commencing on the date of such
Disposition and continuing thereafter for the remainder of the period to the
scheduled maturity date of the Purchase Money Note, be changed to equal the
product of (x) the original Monthly Debt Service under the Purchase Money Note
and (y) a fraction, the numerator of which is $100,000,000 minus without
duplication the Allocated Lease Principal, minus all other principal payments
made under the Purchase Money Note and minus net proceeds of the Disposition of
the Aircraft which were applied to reduce the outstanding principal of the
Purchase Money Note, and the denominator of which is $100,000,000. Any net
proceeds from the sale of the Aircraft Dry Leases or the Disposition of the
Aircraft received by Seller or any of its Affiliates (i) prior to the Closing
Date will be applied to reduce the portion of the Purchase Price to be financed
under the Purchase Money Note by the amount of such proceeds; and (ii) following
Closing will be applied to reduce the principal balance of the Purchase Money
Note in accordance with the terms hereof which shall be set forth in the
Purchase Money Note.
Section 7.22. Casualty/Condemnation. In the event all or any portion of
the Real Property, Improvements, Acquired Assets which constitute real property
interests, or Personal Property are damaged or destroyed or taken by eminent
domain or condemnation prior to the Closing Date, each party shall notify the
other of such fact promptly after obtaining knowledge thereof and this Agreement
shall remain in full force and effect without abatement, counterclaim or set-off
of any kind and, with respect to restoration and replacement thereof, and Seller
and Purchaser shall comply with the applicable terms and conditions of the
Master Lease and the
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Construction Agreement to effect restoration; provided, however, on the Closing
Date Seller shall assign, transfer, convey and release to Purchaser all of its
rights, title and interest in and to any insurance proceeds or other amounts
payable to Seller by reason of such casualty, condemnation or other taking.
Section 7.23. License for Parking Structure. Seller agrees to obtain
within a reasonable time after Closing the consent of the City of Tulsa to
Seller's assignment to Purchaser of the License Agreement dated December 3,
1999, between Seller and the City of Tulsa and recorded in Book 6316 at Page
1299, in the Clerk's Office of Tulsa County, Oklahoma.
Section 7.24. Construction Warranties
(a) Notwithstanding anything to the contrary contained herein,
the term "Acquired Assets" shall not include, the (i) Central Plant, (ii)
Manhattan Expansion Tower Contract, (iii) Manhattan Interior Design Contract,
(iv) HOK Expansion Project Contract and (v) HOK Interior Design Contract (with
regard to clauses (ii)-(v), each as defined in the Construction Agreement and
collectively referred to herein as the "Construction Documents"), but shall
include all of Seller's right, title and interest in and to all construction and
equipment warranties relating to the Real Property and Improvements
(collectively, the "Construction Warranties") and all causes of action in
connection with the Construction Warranties arising under or pursuant to the
Construction Documents; provided, however, with respect to the Manhattan
Expansion Tower Contract and Manhattan Interior Design Contract, the term
"Acquired Assets" shall include only those Construction Warranties and causes of
action which remain after Seller has completed its settlement of any existing
claims and causes of action arising under or pursuant thereto (collectively
"Existing Construction Claims"). Notwithstanding the foregoing, with respect to
Manhattan Expansion Tower Contract and the Manhattan Interior Design Contract,
the Seller shall not (A) waive any rights thereunder with respect to future
causes of action with regard to the Center which are based on facts not known to
Seller on the date hereof or (B) release the contractor thereunder from
completion of the punchlist items created after consultation with Purchaser.
(b) Seller shall within thirty (30) days after substantial
completion of its obligations under the Construction Agreement (or earlier upon
written request of Purchaser to the extent necessary for Purchaser to commence a
cause of action under the Construction Documents, but with respect to the
Manhattan Expansion Tower Contract and the Manhattan Interior Design Contract,
not before Seller shall have completed settlement of its Existing Construction
Claims), assign to Purchaser all of Seller's beneficial interest in, to and
under (but Purchaser shall not be obligated to assume any of Seller's
obligations thereunder) the Construction Documents, subject to Seller's right to
prosecute or defend its own claims arising under or relating to such contracts.
(c) The obligations set forth in this Section 7.24 shall
survive the Closing.
Section 7.25. Guaranty. Communications and WCL, by their execution of
this Agreement, unconditionally and irrevocably jointly and severally guaranty
the obligations of the Purchaser under this Agreement.
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[SIGNATURE PAGE FOLLOWS]
-30-
IN WITNESS WHEREOF, the parties below have executed this
Real
Property Purchase and Sale Agreement by their duly authorized officers as of the
date first set forth above.
XXXXXXXX HEADQUARTERS BUILDING COMPANY
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President
XXXXXXXX TECHNOLOGY CENTER, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
XXXXXXXX COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President & CEO
Solely for the purposes set forth in Section 7.21:
XXXXXXXX AIRCRAFT LEASING, LLC
By: XXXXXXXX AIRCRAFT, INC.,
member
By: /s/ Xxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President & CFO
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SCHEDULE 1
CENTER PARCEL AND SKYWALK
CENTER PARCEL
The Easterly Half (E/2) of Block Eighty-eight (88), ORIGINAL TOWN OF TULSA,
located in the City of Tulsa, Tulsa County, State of Oklahoma, according to the
Official Plat thereof, more particularly described as follows:
BEGINNING at the Southeasterly corner of Block 88; thence
Northerly 300 feet along the Easterly line of Block 88 to the Northeasterly
corner of said Block; thence Westerly along the Northerly line of said Block a
distance of 150 feet to a point; thence Southerly a distance of 300 feet to a
point on the Southerly line of said Block; thence Easterly along the Southerly
line 150 feet to the Point of Beginning.
AND, the following described property:
A portion of East First Street adjacent to Blocks 73 and 88 of
the Original Townsite of Tulsa, Tulsa County, State of Oklahoma, a portion of
South Cincinnati Avenue adjacent to Blocks 88 and 87, Original Townsite, Tulsa
County, State of Oklahoma and said portion of East Second Street adjacent to
Blocks 88 and 106, Original Townsite of Tulsa, Tulsa County, State of Oklahoma,
that is below an elevation of Three (3) feet lower than the driving lanes of
said roadway. Said potion of streets being more fully described as follows to
wit:
Commencing at the point of beginning, said point being the
northeast corner of Block 88; thence westerly along the northerly line of said
Block 88 a distance of 160.00 feet; thence northerly and perpendicular to the
northerly line of said Block 88 a distance of 3.50 feet; thence easterly and
parallel the northerly line of said Block 88 a distance of 166.75 feet; thence
southerly and parallel the easterly line of said Block 88 a distance of 311. 50
feet; thence westerly and parallel the southerly line of Block 88 a distance of
166.75 feet; thence northerly a distance of 8.00 feet to a point on the
southerly line of said Block 88, said point being 10.00 feet westerly from the
southwest corner of Xxx 0, Xxxxx 00; thence easterly along the southerly line of
Block 88 a distance of 160.00 feet to the southeast corner of Xxx 0 Xxxxx 00;
thence northerly along the easterly line of Block 88 a distance of 300.00 feet
to the point of beginning.
SKYWALK NO. 1
A portion of South Cincinnati Avenue adjacent to Blocks 73 and
74, Original Townsite of Tulsa, Tulsa County, State of Oklahoma, that is above
an elevation of Twenty Seven (27) feet higher than the driving lanes of the said
roadway. Said portion of South Cincinnati Avenue being more fully described as
follows to wit:
Commencing at the point of beginning, said point being the
southwest corner of Xxx 0 Xxxxx 00, Xxxxxxxx Xxxxxxxx; thence northerly
along the westerly line a distance of 32.00 feet of said Xxx 0, Xxxxx
00; thence westerly and perpendicular a distance of 80.00
SCHEDULE 1
feet to a point on the easterly line of Xxx 0, Xxxxx 00, Xxxxxxxx
Xxxxxxxx; thence southerly
along the easterly line a distance of 32.0 feet of said Xxx 0, Xxxxx
00; thence easterly and perpendicular a distance of 80.00 feet to the
point of beginning.
SKYWALK XX. 0
X xxxxxxx xx Xxxx Xxxxx Xxxxxx adjacent to Blocks 73 and 88 of
the Original Townsite of Tulsa, Tulsa County, State of Oklahoma, that is above
an elevation of Twenty Seven (27) feet higher than the driving lanes of the said
roadway. Said portion of East First Street being more fully described as follows
to wit:
Commencing at the point of beginning, said point
being the southeast corner of Xxx 0, Xxxxx 00, Xxxxxxxx Xxxxxxxx;
thence westerly along the southerly line of Xxx 0 Xxxxx 00 a distance
of 26.00 feet; thence southerly and perpendicular a distance of 80.00
feet to a point on the northerly line of Xxx 0, Xxxxx 00, Xxxxxxxx
Xxxxxxxx; thence easterly along the northerly line of Xxx 0 Xxxxx 00 a
distance of 26.00 feet to the northeast corner of Xxx 0, Xxxxx 00;
thence northerly and perpendicular a distance of 80.00 feet to the
point of beginning.
SCHEDULE 2.01
LEASES AND AGREEMENTS
INTERIOR FINISHES
EQUIPMENT PURCHASE CONSTRUCTION AND FURNITURE REAL PROPERTY
AGREEMENTS CONTRACTS CONTRACTS AGREEMENTS OTHER AGREEMENTS
------------------ ------------ ----------------- ------------- ----------------
Purchase and Architect's Audio-Video Master Lease Right of First
Installation Agreement for Systems Design Agreement by Refusal
Agreement by and the Xxxxxxxx Agreement by and among WHBC Agreement by
between Oil Center Expansion and between (Lessor) and and between
Capital Electric, Project by and MCsi and WTCLLC (Lessee) Central Parking
Inc., subsidiary between Xxxxxxxx dated Sept. 13, System Realty,
of the Xxxxx Xxxxxxxx, Obata Communications, 2001, as Inc. and
Companies and & Kassabaum, Inc. amended. Xxxxxxxx
Xxxxxxxx Inc. and dated October Headquarters
Headquarters Xxxxxxxx 11, 2000. Building
Building Company Headquarters Company dated
dated January 1, Building Company June 29, 1999.
2001 dated March 2,
1999.
General Interior Design Lease Agreement Purchase and
Contractor's Services executed Technical
Agreement for Agreement effective April Support
the Xxxxxxxx by and between 23, 2001, by Agreement by
Center Expansion Bellwether and between and between
Project by and Design, WTCLLC Xxxxxxx
between Ltd. And (landlord) and Controls, Inc.
Manhattan Xxxxxxxx WHBC (tenant), and Xxxxxxxx
Construction Communications, as amended. Headquarters
Company and Inc. dated Building
Xxxxxxxx August 16, 2000. Company dated
Headquarters December 22,
Building Company 1999. (Partial
dated August 27, Assignment)
1999.
SCHEDULE 2.01
INTERIOR FINISHES
EQUIPMENT PURCHASE CONSTRUCTION AND FURNITURE REAL PROPERTY
AGREEMENTS CONTRACTS CONTRACTS AGREEMENTS OTHER AGREEMENTS
------------------ ------------ ----------------- ------------- ----------------
Architect's Furniture Ground Lease Utility
Agreement for Systems between Services
the Xxxxxxxx Contract by and Xxxxxxxx Realty Agreement dated
Technology between The Corp. (now September 13,
Center Design Xxxxx Group and WHBC) as 2001, by and
Project by and Xxxxxxxx Landlord and between WTCLLC
between Communications LePetite ("customer")
Helmlmuth, Obata (left Xxxxxxx Academy, Inc. and WHBC
& Kassabaum, Hunter a as Tenant dated ("Owner"), as
Inc. and message to get July 22, 1987, amended.
Xxxxxxxx copies of these as amended.
Communications, for dates)
Inc., with an
effective date
of January 1,
2000.
General Furniture License Management
Contractor's Contract by and Agreement Services
Agreement for between MSI and between City of Agreement dated
the Xxxxxxxx Xxxxxxxx Tulsa, and September 13,
Technology Communications Xxxxxxxx 2002 by and
Center Design (left Xxxxxxx Headquarters between WTCLLC
Project by and Hunter a Building ("Owner") and
between message to get Company, dated WHBC
Manhattan copies of these December 3, "Manager"), as
Construction for dates) 1999, relating amended.
Company and to the
Xxxxxxxx architectural
Communications, overhang for
Inc. dated the Parking
January 9, 2001. Garage.
SCHEDULE 2.01
INTERIOR FINISHES
EQUIPMENT PURCHASE CONSTRUCTION AND FURNITURE REAL PROPERTY
AGREEMENTS CONTRACTS CONTRACTS AGREEMENTS OTHER AGREEMENTS
------------------ ------------ ----------------- ------------- ----------------
ThyssenKrupp License Agreement of
Elevator Agreement Purchase and
(elevator between City of Sale and
maintenance) Tulsa, and Construction
Xxxxxxxx Completion
Headquarters effective as of
Building February 26,
Company, dated 2001, between
May 18, 0000, XXXX as Seller
relating to the and WTCLLC as
street scraping Purchaser, as
associated with amended.
the Center, the
Parking Garage
and the Bank of
Oklahoma Tower.
Interior Design License Agreement of
Services Agreement Purchase and
Agreement by and between City of Sale effective
between Tulsa, and as of September
Bellwether Xxxxxxxx 13, 2001, by
Design, Ltd. and Headquarters and between
Xxxxxxxx Building WTCLLC as
Communications, Company, dated Seller and WHBC
Inc., dated ______, as Purchaser,
August 16, 2000. relating to the as amended.
utility tunnel
across
Cincinnati
between the
Cooling Towers
Parcel and the
Center.
Architect's License
Agreement for Agreement
extended C.A. between City of
Services. Tulsa, and
Xxxxxxxx
Headquarters
SCHEDULE 2.01
INTERIOR FINISHES
EQUIPMENT PURCHASE CONSTRUCTION AND FURNITURE REAL PROPERTY
AGREEMENTS CONTRACTS CONTRACTS AGREEMENTS OTHER AGREEMENTS
------------------ ------------ ----------------- ------------- ----------------
Building
Company, dated
______,
relating to the
architectural
overhang for
the Cooling
Towers.
Easement
Agreement
between
Xxxxxxxx
Headquarters
Building
Company,
Xxxxxxxx Field
Services
Company, and
Xxxxxxxx
Technology
Center, LLC,
dated August
28, 2001
(Easement for
Skywalk support
structure).
SCHEDULE 2.06
AGREED ALLOCATION
ITEM ALLOCATION
Center $ 48,489,796
Center Parcel $ 887,755
Parking Garage $ 5,510,204
Parking Garage Parcel $ 410,204
Fixtures $ 48,105,670
Furniture and Equipment $ 46,596,371
TOTAL $ 150,000,000
The above allocation will be adjusted on a proportional basis to the extent the
consideration for the Purchase Price of the Acquired Assets is reduced by the
disposition of the Aircraft Dry Leases pursuant to Section 7.21 of this
Agreement.
SCHEDULE 3.01(e)
SELLER CONSENTS
Seller must obtain consents as required under the following financing
arrangements:
REVOLVERS:
$2.2 BILLION CREDIT AGREEMENT dated as of July 25, 2000, by and between TWC, as
Borrower, Citibank, N.A., as Agent ("364-day Revolver/CP backup line"), and the
Banks named therein, as amended. Amendments:
$700 MILLION CREDIT AGREEMENT dated as of July 25, 2000, among TWC, NWP, TGPL
and TGT, as Borrowers, Citibank, N.A., as Agent ("Revolver"), and the Banks
named therein, as amended.
PROGENY (same covenants as Revolvers)
PROJECT "CASTLE"
$200MM Parent Support Agreement dated as of December 23, 1998, made by TWC in
favor of Castle Associates L. P. "(Castle") and Colchester LLC ("Investor") and
the other Indemnified Persons listed therein, as amended.
"COMMONWEALTH PLAN LEASE"
Amended and Restated Guarantee dated as of July 25, 2000, issued by TWC and WHD
("Guarantors") for the benefit of The Commonwealth Plan, Inc. and CBL Capital
Corporation, as amended. WFS-Pipeline Company, as lessee and Commonwealth, as
lessor entered into a Lease Agreement dated as of December 29, 1995.
WFS-Offshore Gathering Company, as lessee, and CBL, as lessor, entered into a
Lease Agreement dated December 29, 1995, as amended and restated.
"CREDIT LYONNAIS TERM LOAN"
$400MM Term Loan Agreement dated as of April 7, 2000, among TWC, as Borrower,
and Credit Lyonnais New York Branch, as Administrative Agent, and the Lenders
named therein, as amended.
"DEEPWATER" OR "EAST BREAKS" SYNTHETIC LEASES
$192,570,931 aggregate Amended and Restated Participation Agreements (2 separate
leases) dated as of November 16, 2000, among Xxxxxxxx Oil Gathering, L.L.C. and
Xxxxxxxx Field Services - Gulf Coast Company, L.P., as Lessees, Xxxxxxxx Field
Services Company, as Construction Agent, TWC, as Guarantor, First Security Bank,
N.A. as Certificate Trustee, Xxxxx Fargo Bank Nevada, N.A., as Collateral Agent,
Bank of America, N.A., as Administrative Agent and Administrator, and financial
institutions named therein as Certificate Holders, as amended.
"FUJI TERM LOAN"
$200MM Term Loan Agreement dated as of January 29, 1999, among TWC, as Borrower,
and The Fuji Bank, Limited, as Administrative Agent, and the Banks named
therein, as amended.
PROJECT "PRAIRIE WOLF"
$611,788,868 Joint Venture Sponsor Agreement dated as of December 28, 2000,
among TWC, as Sponsor and Xxxxxxxx Field Services Company, in favor of Prairie
Wolf Investors ("Investor"), Arctic Fox Assets, L.L.C., Xxxxxxxx Energy
(Canada), Inc. and the other Indemnified Persons listed therein, as amended
"TPA"
Letter of Credit and Reimbursement Agreement dated as of May 15, 1994, among
Tulsa Parking Authority ("TPA"), TWC, Bank of Oklahoma, National Association,
and Bank of America, N.A. (formerly NationsBank of Texas, N.A.) ("BofA"),
relative to Tulsa Parking Authority First Mortgage Revenue Bonds, as amended.
"TRAVELCENTERS SYNTHETIC LEASE"
$127MM Master Agreement dated as of March 6, 2000, among TWC, as Guarantor,
Xxxxxxxx TravelCenters, Inc., as Lessee, Atlantic Financial Group, Ltd., as
Lessor, SunTrust Bank, as Agent, and the Lenders named therein, as amended.
[Originally $250MM then reduced to $127MM in Fourth Amendment to Master
Agreement dated as of February 7, 2002.]
PROJECT "PPH" (INITIALLY KNOWN AS "PROJECT BISON")
$100MM PPH Sponsor Agreement dated as of December 31, 2001, by TWC, as Sponsor,
in favor of Piceance Production Holdings LLC, Plowshare Investors LLC
("Investor"), and other Indemnified Persons listed in the agreement, as amended.
WEM&T EUROPE LTD. REVOLVING CREDIT FACILITY
20MM multicurrency, 364-day revolving credit facility dated as of July 4, 2001,
renewed July 1, 2002, between Xxxxxxxx Energy Marketing & Trading Europe Ltd.,
as Borrower, TWC, as Guarantor, and Royal Bank of Scotland plc acting as agent
for National Westminster Bank Plc., as amended.
SCHEDULE 3.01(h)
SURVIVING AGREEMENTS
1. BFI Contract for removal of refuse from recycling compactor.
2. Xxxxxx Industries for trash hauling.
3. Xxxxxxx Pest Control for pest control services.
4. Economy Janitorial for janitorial services.
5. Wackenhut Contract for security personnel and services.
6. TrueGreen Contract for snow removal.
SCHEDULE 3.02(e)
PURCHASER RELATED CONSENTS
1. Approval of the Board of Directors of Communications.
2. Approval of the Settlement Agreement.
3. Approval by the "Required Lenders" as such term is defined in the WCG
Bank Facility.
SCHEDULE 4
COOLING TOWER PARCEL
Lots Eight (8) and Nine (9), Block Eighty-Seven (87), Original Town, now City of
Tulsa, Tulsa County, State of Oklahoma, according to the plat thereof.
SCHEDULE 5
PARKING GARAGE PARCEL
TRACT A:
Lots One (1), Two (2), Three (3) and Four (4), Block Seventy-four (74), ORIGINAL
TOWNSITE OF TULSA, now City of Tulsa, Tulsa County, State of Oklahoma, according
to the Official Plat thereof;
TRACT B:
All that part of the Original Tulsa Station and Depot Grounds of the Burlington
Northern Railroad Company's Right of Way located in Sections 1 and 2, Township
19 North, Range 12 East of the Indian Base and Meridian, more particularly
described as follows, to-wit:
BEGINNING at a point that is the Northwest corner of Block 74, Original Town of
Tulsa, now City of Tulsa, Tulsa County, Oklahoma, according to the Official Plat
thereof; thence Westerly along the Westerly production of the North line of
Block 74, a distance of 80.00 feet to a point, also being the Northeast corner
of Block 73, said point also being the Southeast corner of that certain sale to
the Tulsa Urban Renewal Authority, dated December 30, 1970, recorded December
30, 1970, in Book 3951 at Pages 1235, 1236, 1237 and 1238, and correction deed
dated August 28, 1973; thence Northerly along the Northerly production of the
East line of said Block 73 a distance of 200.00 feet; thence Easterly parallel
200.00 feet Northerly of the North line of said Block 74 a distance of 80.00
feet to a point on the Northerly production of the West line of Block 74; thence
Southerly along the Northerly production of the West line of Block 74 a distance
of 20.00 feet; thence Easterly parallel 180.00 feet Northerly of the North line
of said Block 74 a distance of 60.91 feet to a point of intersection with an
existing concrete retaining wall; thence Northeasterly along a deflection angle
to the left of 5 (degrees) 42'01" a distance of 240.27 feet to a point on the
Northerly production of the East line of Block 74; thence Southerly along said
Northerly production of the East line of Block 74 a distance of 203.86 feet to
the Northeast corner of Block 74; thence Westerly along the Northerly line of
Block 74 a distance of 300.00 feet to the Point of Beginning of said tract of
land.
AND, the following described property:
A portion of East First Street adjacent to Block 74 and Block
87 of the Original Townsite of Tulsa, Tulsa County, State of Oklahoma, that is
below an elevation of One (1) foot lower than the driving lanes of said roadway.
Said portion of street being more fully described as follows to wit:
Commencing at a point of beginning, said point being the
southwest corner of Block 74; thence southerly and perpendicular to the south
line of Block 74 a distance of 2.75 feet; thence easterly and parallel to the
southerly line of said Block 74 a distance of 302.75 feet; thence northerly and
parallel to the easterly line of Block 74 a distance of 191.00 feet; thence
westerly and perpendicular a distance of 2.75 feet to the east line of Block 74;
thence southerly along the east line of Block 74 a distance of 188.25 feet,
thence westerly along the southerly line of Block 74 a distance of 300.00 feet,
to the point of beginning.
EXHIBIT A
FORM OF XXXX OF SALE
EXHIBIT B
FORM OF DEED
EXHIBIT C
FORM OF NON-FOREIGN ENTITY CERTIFICATE
EXHIBIT D
PERMITTED EXCEPTIONS
