EXHIBIT 2.5
LEASE SERVICES AGREEMENT
This LEASE SERVICES AGREEMENT is made as of this 27th day of March,
2002 (which is the date this Agreement was signed by Seller or Purchaser,
whichever was last to sign), by and between GATES, XXXXXXXX & COMPANY, an Ohio
corporation, ("Seller"), and XXXXXX ACQUISITION SUB, INC., a Missouri
corporation ("Purchaser"). Capitalized terms not defined herein shall have the
meaning set forth in the Asset Purchase Agreement.
WITNESSETH:
A. WHEREAS, Seller and Purchaser have entered into that certain Asset
Purchase Agreement dated March 27, 2002 (the "Asset Purchase Agreement"); and,
B. WHEREAS, Seller is a party to those certain leases (the "Leases",
which are more particularly described on the attached Exhibit "A") for office
space in various locations (the "Leased Premises"), which offices are occupied
in whole or in part by the UCBSG Business conveyed to Purchaser pursuant to the
Asset Purchase Agreement; and,
C. WHEREAS, Seller and Purchaser wish to allocate the respective rights
and obligations of the parties as they pertain to the Leases and the Leased
Premises.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
SECTION 1. CO-OCCUPANCY; LEASES RETAINED BY SELLER.
(a) Co-Occupancy Agreement. Seller hereby agrees to grant to Purchaser,
its employees, agents, contractors and invitees, an exclusive, irrevocable
license to use that part of the Leased Premises that are currently occupied by
the UCBSG Business as of the date of the Closing of the Asset Purchase Agreement
(to the extent that Seller has a leasehold right in the Leased Premises). The
terms and conditions of such license shall be set forth in more detail in a
separate "Co-Occupancy Agreement" for each location that shall be executed by
the parties within thirty (30) days of the Closing Date or as soon thereafter as
possible, in the form attached hereto and incorporated herein by reference as
Exhibit "B", with such reasonable changes as the Purchaser or the Landlord may
request in order to ensure that the obligations of the Parties with respect to
any such license arrangements are clearly defined and consistent with the
applicable Lease; provided, however, that notwithstanding anything contained
herein to the contrary, Purchaser shall have no obligations to enter into any
such Co-Occupancy Agreement with respect to any premises in the event that the
consent of the Landlord with respect thereto has not been obtained or such
arrangement will otherwise result in a default of the underlying Lease with
respect to any such premises.
(b) License Fee. Purchaser hereby agrees to pay to Seller, a "License
Fee", based on Purchaser's proportionate share (as that proportionate share is
set forth on the attached Exhibit
"A") of rent and all other charges and expenses payable by tenant under the
applicable Lease, accruing from and after the Closing Date until such time as
the applicable Co-Occupancy Agreement is terminated as set forth in subparagraph
(c) below. The terms, conditions and method of such payment shall be set forth
in more detail in the Co-Occupancy Agreement applicable to that specific
location.
(c) Term. Each Co-Occupancy Agreement, and the rights and obligations
of the parties thereunder, shall only be terminated as follows: (i) pursuant to
the terms of the applicable Lease; (ii) pursuant to an agreement in writing
between Seller and Landlord, upon consent of the Purchaser; or, (iii) pursuant
to an agreement in writing between Purchaser and Seller. Seller further agrees
that Purchaser shall be a necessary party to any agreement between Seller and
Landlord to terminate, renew or extend any Lease for Leased Premises occupied,
in whole or in part, by Purchaser.
SECTION 2. LEASES ASSIGNED TO PURCHASER.
Notwithstanding the provisions of Section 1 above, but subject to the
last sentence of this Section 2, with respect to those Leases where Purchaser's
proportionate share of the Lease is 51-100%, Seller shall use its best efforts
to assign and Purchaser hereby agrees to assume, all of the rights and
obligations of tenant remaining under any such Leases, commencing as of the
Closing Date. The terms and conditions of the assignment and assumption of the
applicable Leases shall be set forth in a separate "Assignment and Assumption
Agreement" for each location that shall be executed by the parties within thirty
(30) days of the Closing Date or as soon thereafter as possible in the form
attached hereto and incorporated herein by reference as Exhibit "C", with such
reasonable changes as the Purchaser or the Landlord may request in order to
ensure that the obligations of the Parties with respect to any such assignment
are clearly defined, consistent with the applicable Lease. In the event that
Purchaser's proportionate share of the Lease is 51-100%, but the applicable
Lease terms do not permit an assignment of the Lease or the landlord refuses to
consent to an assignment of the Lease, the provisions of Section 1 above shall
control such that Purchaser shall have a license to use such premises.
SECTION 3. CO-OCCUPANCY; LEASES ASSIGNED TO PURCHASER.
(a) Co-Occupancy Agreement. With respect to those Leases that are
assigned to Purchaser pursuant to Section 2 above, Purchaser agrees to grant to
Seller, its employees, agents, contractors and invitees, an exclusive
irrevocable license to use that part of the Leased Premises currently occupied
by Seller's operations that have not been purchased by Purchaser pursuant to the
Asset Purchase Agreement (to the extent that Purchaser has a leasehold right in
the Leased Premises). The terms and conditions of such license shall be set
forth in more detail in a separate "Co-Occupancy Agreement" for each location
that shall be executed by the parties within thirty (30) days of the Closing
Date or as soon thereafter as possible, in the form attached hereto and
incorporated herein by reference as Exhibit "B", with such reasonable changes as
the Purchaser or the Landlord may request in order to ensure that the
obligations of the Parties with respect to any such license arrangements are
clearly defined; provided, however, that notwithstanding anything contained
herein to the contrary, Purchaser shall have no obligations to enter into any
such Co-Occupancy Agreement with respect to any premises in the event that the
consent of the Landlord with respect thereto has not been obtained or such
arrangement will otherwise result in a default of the underlying Lease with
respect to any such premises.
(b) License Fee. Seller hereby agrees to pay to Purchaser, a "License
Fee", based on Seller's proportionate share (as that proportionate share is set
forth on the attached Exhibit "A") of rent and all other charges and expenses
payable by tenant under the applicable Lease accruing from and after the Closing
Date, until such time as the applicable Co-Occupancy Agreement is terminated as
set forth in subparagraph (c) below. The terms, conditions and method of such
payment shall be set forth in more detail in the Co-Occupancy Agreement
applicable to that location.
(c) Term. The Co-Occupancy Agreement, and the rights and obligations of
the parties thereunder, shall only be terminated as follows: (i) pursuant to the
terms of the Lease; (ii) pursuant to an agreement in writing between Purchaser
and Landlord; or, (iii) pursuant to an agreement in writing between Purchaser
and Seller. Purchaser further agrees that Seller shall be a necessary party to
any agreement between Purchaser and Landlord to terminate, renew or extend any
Lease for Leased Premises occupied, in whole or in part, by Seller.
SECTION 4. MISCELLANEOUS.
(a) Notices. Any notice required or permitted hereunder shall be made
pursuant to the notice provisions set forth in the Co-Occupancy Agreement
attached hereto as Exhibit "B".
(b) Effective Date. The Effective Date of this Agreement shall be the
"Closing Date", as that term is defined in the Asset Purchase Agreement.
(c) Binding Effect. All provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, and to their
respective legal representatives, successors and permitted assigns. The
provisions of this Agreement shall be severable, and shall be construed pursuant
to the laws of the State of Ohio. Time is of the essence.
(d) Entire Agreement. This Agreement, and any exhibits and/or addendum
attached hereto, sets forth the entire agreement between the parties with
respect to the subject matter referenced herein. Any prior conversation or
writing are merged herein and extinguished. No subsequent amendment to this
Agreement shall be binding unless reduced to writing and signed by both parties
hereto, except as otherwise provided herein. This Agreement shall have no
binding effect on either party unless and until executed by both parties.
(signature page follows immediately)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered, being first duly authorized, on the date first above
written.
SELLER:
GATES, XXXXXXXX & COMPANY
By: /s/ Xxxxx Xxxxxxxxx
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Date: March 27, 2002 Print: Xxxxx Xxxxxxxxx
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Its: President and COO
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PURCHASER:
XXXXXX ACQUISITION SUB, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Date: March 27, 2002 Print: Xxxxxxx X. Xxxxxxxx
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Its: President and Chief Executive Officer
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The Registrant agrees to furnish supplementally a copy of any omitted schedule
to the Commission upon request.
