SALE-LEASEBACK AGREEMENT
THIS SALE-LEASEBACK AGREEMENT (this "Agreement") is made as of July 30,
2001, by and between XXXXXXX FAMILY LLC, a Massachusetts limited liability
company ("Buyer"), whose address is 000 Xxxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, XX
00000 and UNO FOODS, INC., a Massachusetts corporation, and SAXET CORPORATION, a
Delaware corporation (individually, a "Seller" and collectively, the "Sellers"),
whose address is 000 Xxxxxxx Xxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in this
Agreement shall have the meanings set forth in Section 1. Sellers own or have an
option or right to purchase the Properties. Buyer desires to purchase the
Properties pursuant to this Agreement and lease the Properties to SLA Mail,
Inc., a Massachusetts corporation ("SLA Mail") pursuant to the Lease.
AGREEMENT:
In consideration of the mutual covenants and provisions of this Agreement,
the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following meanings for
all purposes of this Agreement:
"ACKNOWLEDGEMENT" means the Acknowledgement of Master Lease Assignment and
Subordination, Nondisturbance and Attornment Agreement dated as of the date of
this Agreement among Buyer, SLA Mail and Lender. A duplicate original
Acknowledgement will be executed and recorded in the applicable real property
records for each Property. Each Acknowledgement will contain exhibits with the
addresses and store identification numbers for all of the Properties and the
legal description for the applicable Property.
"AFFILIATE" means any person or entity which directly or indirectly
controls, is under common control with, or is controlled by any other person or
entity. For purposes of this definition, "controls", "under common control with"
and "controlled by" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such person
or entity, whether through ownership of voting securities or otherwise.
"CLOSING" shall have the meaning set forth in Section 5.
"CLOSING DATE" shall have the meaning set forth in Section 5.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COMMITMENT" means those certain commitment letters dated March 7, 2001
and March 27, 2001 as amended for both the Massachusetts and Illinois Properties
between General Electric Capital Asset Business Funding and Buyer, and any
amendments or supplements thereto.
"COUNSEL" means one or more legal counsel to Sellers and Guarantor
licensed in the states in which (i) the Properties are located, (ii) Sellers and
Guarantor are incorporated or formed and (iii) Sellers and Guarantor maintain
their chief executive offices, as selected by Sellers and Guarantor and approved
by Buyer.
"DE MINIMIS AMOUNTS" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any form
or combination of forms, the use, storage or release of which does not
constitute a violation of, or require regulation or remediation under, any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the
Properties are located.
"ENVIRONMENTAL CONDITION" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or surrounding any
of the Properties, whether or not yet discovered, which could or does result in
any damage, loss, cost, expense, claim, demand, order or liability to or against
Sellers, Buyer or Lender by any third party (including, without limitation, any
Governmental Authority), including, without limitation, any condition resulting
from the operation of Seller's business and/or the operation of the business of
any other property owner or operator in the vicinity of any of the Properties
and/or any activity or operation formerly conducted by any person or entity on
or off any of the Properties.
"ENVIRONMENTAL LAWS" means any present and future federal, state and local
laws, statutes, ordinances, rules and regulations relating to Hazardous
Materials and/or the protection of human health or the environment, by reason of
a Release or a Threatened Release of Hazardous Materials or relating to
liability for or costs of Remediation or prevention of Releases. "Environmental
Laws" includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations, rulings, orders or decrees promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to Subtitle I
relating to underground storage tanks); the Solid Waste Disposal Act; the Clean
Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe
Drinking Water Act; the Occupational Safety and Health Act; the Federal Water
Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act;
the Endangered Species Act; the National Environmental Policy Act; and the River
and Harbors Appropriation Act. "Environmental Laws" also includes, but is not
limited to, any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law: conditioning
transfer of property upon a negative declaration or other approval of a
Governmental Authority of the environmental condition of the property; requiring
notification or disclosure of Releases or other environmental condition of any
of the Properties to any Governmental Authority or other
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person or entity, whether or not in connection with transfer of title to or
interest in property; relating to nuisance, trespass or other causes of action
related to Hazardous Materials; and relating to wrongful death, personal injury,
or property or other damage in connection with the physical condition or use of
any of the Properties by reason of the presence of Hazardous Materials in, on,
under or above any of the Properties.
"GUARANTOR" means Uno Restaurant Corporation, a Delaware corporation.
"GUARANTY" means that certain Unconditional Guaranty of Payment and
Performance dated as of the Closing Date to be executed by Guarantor for the
benefit of Buyer with respect to the Lease, as the same may be amended from time
to time.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states in which the
Properties are located or any political subdivision thereof.
"HAZARDOUS MATERIALS" means (i) any toxic substance or hazardous waste,
substance, solid waste or related material, or any pollutant or contaminant;
(ii) radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contains
dielectric fluid containing levels of polychlorinated biphenyls in excess of
federal, state or local safety guidelines, whichever are more stringent, or any
petroleum product; (iii) any substance, gas, material or chemical which is or
may be defined as or included in the definition of "hazardous substances,"
"toxic substances," "hazardous materials," "hazardous wastes," "regulated
substances" or words of similar import under any Environmental Laws; and (iv)
any other chemical, material, gas or substance the exposure to or release of
which is or may be prohibited, limited or regulated by any Governmental
Authority that asserts or may assert jurisdiction over any of the Properties or
the operations or activity at any of the Properties, or any chemical, material,
gas or substance that does or may pose a hazard to the health and/or safety of
the occupants of any of the Properties or the owners and/or occupants of
property adjacent to or surrounding any of the Properties.
"INDEMNIFIED PARTIES" has the meaning set forth in Section 14.
"LEASE" means the master lease agreement dated as of the date of this
Agreement to be executed by Buyer, as lessor, and SLA Mail, as lessee, with
respect to the Properties, as the same may be amended from time to time.
"LENDER" means General Electric Capital Asset Business Funding
Corporation.
"LICENSE AGREEMENT" means that certain Optional License Agreement dated as
of the Closing Date by and between Buyer and Pizzeria Uno Corporation, a
Delaware corporation.
"LOAN AGREEMENT" means the Loan Agreement dated as of the date of this
Agreement in effect between Buyer and Lender, as such agreement may be amended
from time to time and any and all replacements or substitutions thereof.
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"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the net
worth or operation of Sellers, Guarantor or any of the Properties, including,
without limitation, the operation of any of the Properties as a Permitted
Facility and/or the value of any of the Properties, or (ii) Sellers' or
Guarantor's ability to perform their obligations under the Sale-Leaseback
Documents.
"MEMORANDUM" means the memorandum of master lease dated as of the date of
this Agreement to be executed by Buyer, as lessor, and SLA Mail, as lessee, with
respect to the Properties. A duplicate original Memorandum will be executed and
recorded in the applicable real property records for each Property. Each
Memorandum will contain exhibits with the addresses and store identification
numbers for all of the Properties and the legal description for the applicable
Property.
"NON-FOREIGN SELLER CERTIFICATE" means the non-foreign seller certificate
to be executed and delivered by Sellers to Buyer prior to or on the Closing
Date.
"OTHER AGREEMENTS" means, collectively, all agreements and instruments now
or hereafter entered into between, among or by (1) any of the Seller Entities,
and, or for the benefit of (as intended beneficiary or third party beneficiary),
(2) Buyer; provided, however, the term Other Agreements shall not include this
Agreement, the other Sale-Leaseback Documents, agreements between and among
institutional lenders and one or more of the Seller Entities.
"PERMITTED EXCEPTIONS" means those recorded easements, restrictions, liens
and encumbrances set forth as exceptions in the title insurance policies issued
by Title Company to Buyer and approved by Buyer in connection with this
Agreement.
"PERMITTED FACILITY" means with respect to those properties located in the
State of Illinois, a Pizzeria Uno Chicago Bar & Grill restaurant, Pizzeria Due,
Su Casa or any future concept or use to be developed. Permitted Facility means
with respect to that property located in the State of Massachusetts, a food
service production facility or any future concept or use to be developed.
"PERMITTED SUBLEASES" means, collectively, the Master Subleases dated as
of the date of this Agreement to be executed by SLA Mail, as lessor and the
Permitted Sublessees, as lessees, with respect to the Properties.
"PERMITTED SUBLESSEES" means SLA Brockton, Inc., a Massachusetts
corporation, Pizzeria Uno, Inc., an Illinois corporation, Pizzeria Due, Inc. and
Su Casa, Inc.
"PERSONALTY" means all machinery, appliances, furniture, equipment, trade
fixtures and other personal property of Sellers (excluding inventory) from time
to time situated on or used in connection with the Properties; provided,
however, the term "Personalty" shall not include the HVAC, walk-in coolers,
walk-in freezers, supply fans, exhaust fans, air ducts, hoods, vents, built-in
sinks, built-in countertops, plumbing and electrical fixtures, merchandise
shelving, sign poles and lighting poles, all of which items are intended to be
fixtures as such term is used within the definition of "Properties".
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"PROPERTIES" means, collectively, the parcels of real estate described by
address, Buyer Number and Unit Number in EXHIBIT A attached hereto and legally
described in EXHIBIT A-1 attached hereto, all rights, privileges and
appurtenances associated therewith, and all buildings, structures, fixtures and
other improvements now or hereafter located on such real estate (excluding
Personalty and inventory).
"PURCHASE PRICE" means the amount specified in Section 3.
"QUESTIONNAIRES" means the environmental questionnaires completed by
Sellers with respect to each of the Properties and submitted to Buyer and
Lender.
"RELEASE" means any depositing, discharge, leaking, spilling, injecting,
pumping, pouring, emptying, escaping, dumping or disposing of Hazardous
Materials into the environment, except for De Minimis Amounts.
"REMEDIATION" means any response, remedial, removal, or corrective action,
any activity to cleanup, detoxify, decontaminate, contain or otherwise remediate
any Hazardous Materials, any actions to prevent, cure or mitigate any Release,
any inspection, investigation, study, monitoring, assessment, sampling and
testing, laboratory or other analysis, relating to any Hazardous Materials.
"SALE-LEASEBACK DOCUMENTS" means this Agreement, the Lease, the Permitted
Subleases, the Guaranty, the Memorandum, the Acknowledgement and all other
documents executed in connection therewith or contemplated thereby.
"SELLER ENTITIES" means, collectively, Sellers and Guarantor and all
Affiliates of Sellers and Guarantor.
"SLA MAIL" shall have the meaning set forth in the Preliminary Statement.
"THREATENED RELEASE" means a substantial likelihood of a Release which
requires action pursuant to Environmental Law to prevent or mitigate damage to
the soil, surface waters, groundwaters, land, stream sediments, surface or
subsurface strata, ambient air or any other environmental medium comprising or
surrounding any of the Properties which may result from such Release.
"TITLE COMPANY" means the title insurance company described in Section 6.
2. TRANSACTION. On the terms and subject to the conditions set forth
herein:
(i) Sellers shall sell, or cause to be conveyed, and Buyer shall
purchase all of the Properties;
(ii) Buyer shall lease all of the Properties to SLA Mail pursuant to
the Lease; and
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(iii) SLA Mail shall sublease certain of the Properties to the
Permitted Sublessees pursuant to the Permitted Subleases.
The sale and purchase of all of the Properties pursuant to this Agreement
and the lease of all of the Properties to SLA Mail pursuant to the Lease and the
sublease of certain of the Properties to the Sellers are not severable and shall
be considered a single integrated transaction.
3. PURCHASE PRICE. The aggregate purchase price for all of the Properties
shall be $6,681,452.00 (the "Purchase Price"). The Purchase Price has been
allocated among the Properties as set forth on EXHIBIT A attached hereto. The
Purchase Price shall be paid at the Closing in cash or its equivalent subject to
any prorations and adjustments required by this Agreement. The Purchase Price
shall be remitted at Closing to Sellers or at Sellers' direction. In addition to
payment of the Purchase Price, Buyer shall be responsible to pay at Closing the
following fees and costs: (i) any underwriting, site assessment, valuation,
processing and commitment fee payable to Lender, (ii) any costs related to the
procurement of residual value insurance policies by Buyer, (iii) attorneys' fees
of Hunter, MacLean, Xxxxx & Xxxx, counsel to Lender, (iv) attorneys' fees of
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, counsel to Buyer, and (v) Buyer's reasonable
out-of-pocket costs.
4. INTENTIONALLY DELETED.
5. CLOSING DATE. The purchase and sale of the Properties shall be closed
(the "Closing") within 30 days following the satisfaction of all of the terms
and conditions contained herein, but in no event shall the date of the Closing
be extended beyond July 31, 2001, unless such extension shall be approved by
Buyer in its sole discretion (the date on which the Closing shall occur is
referred to herein as the "Closing Date").
6. CLOSING. Buyer has ordered a title insurance commitment for each of the
Properties from Chicago Title Insurance Company ("Title Company"). Prior to the
Closing Date, the parties hereto shall deposit with Title Company all documents
and moneys necessary to comply with their obligations under this Agreement.
Title Company shall not cause the transaction to close unless and until it has
received written instructions from Buyer to do so. Except for the fees and costs
to be paid by Buyer pursuant to Section 3, all costs of such transaction shall
be borne by Sellers, including, without limitation, the cost of title insurance
and endorsements, the attorneys' fees of Sellers, local counsel attorneys' fees
of Buyer and Lender, the cost of the surveys, stamp taxes, transfer fees and
escrow and recording fees. All real and personal property and other applicable
taxes and assessments and other charges relating to any of the Properties which
are due and payable on or prior to the Closing Date, as well as such taxes and
assessments due and payable subsequent to the Closing Date but which Title
Company requires to be paid at Closing as a condition to the issuance of the
title insurance policies described in Section 11.C, shall be paid by Sellers at
or prior to the Closing, and all other taxes and assessments shall be paid by
SLA Mail its capacity as lessee under the Lease in accordance with the terms of
the Lease. The Closing documents shall be dated as of the Closing Date.
Sellers and Buyer hereby employ Title Company to act as escrow agent in
connection with this transaction. Sellers and Buyer will deliver to Title
Company all documents, pay to
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Title Company all sums and do or cause to be done all other things necessary or
required by this Agreement, in the reasonable judgment of Title Company, to
enable Title Company to comply herewith and to enable any title insurance policy
provided for herein to be issued. Title Company is authorized to pay, from any
funds held by it for Buyer's or Seller's respective credit all amounts necessary
to procure the delivery of such documents and to pay, on behalf of Buyer and
Sellers, all charges and obligations payable by them, respectively. Sellers will
pay all charges payable by it to Title Company. Title Company is authorized, in
the event any conflicting demand is made upon it concerning these instructions
or the escrow, at its election, to hold any documents and/or funds deposited
hereunder until an action shall be brought in a court of competent jurisdiction
to determine the rights of Sellers and Buyer or to interplead such documents
and/or funds in an action brought in any such court. Deposit by Title Company of
such documents and funds, after deducting therefrom its charges and its expenses
and attorneys' fees incurred in connection with any such court action, shall
relieve Title Company of all further liability and responsibility for such
documents and funds. Title Company's receipt of this Agreement and opening of an
escrow pursuant to this Agreement shall be deemed to constitute conclusive
evidence of Title Company's agreement to be bound by the terms and conditions of
this Agreement pertaining to Title Company. Disbursement of any funds shall be
made by check, certified check or wire transfer, as directed by Buyer. Title
Company shall be under no obligation to disburse any funds represented by check
or draft, and no check or draft shall be payment to Title Company in compliance
with any of the requirements hereof, until it is advised by the bank in which
such check or draft is deposited that such check or draft has been honored.
Title Company is authorized to act upon any statement furnished by the holder or
payee, or a collection agent for the holder or payee, of any lien on or charge
or assessment in connection with any of the Properties, concerning the amount of
such charge or assessment or the amount secured by such lien without liability
or responsibility for the accuracy of such statement. The employment of Title
Company as escrow agent shall not affect any rights of subrogation under the
terms of any title insurance policy issued pursuant to the provisions thereof.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer contained in this Section are being made by Buyer as of the
date of this Agreement and the Closing Date to induce Sellers to enter into this
Agreement and consummate the transactions contemplated herein, and Sellers have
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Buyer represents and
warrants to Sellers as follows:
A. ORGANIZATION OF BUYER. Buyer has been duly formed, is validly
existing and has taken all necessary action to authorize the execution,
delivery and performance by Buyer of this Agreement.
B. AUTHORITY OF BUYER. The person who has executed this Agreement on
behalf of Buyer is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by Buyer, this Agreement shall
constitute the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
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All representations and warranties of Buyer made in this Agreement shall
survive the Closing.
8. REPRESENTATIONS AND WARRANTIES OF SELLERS. The representations and
warranties of Sellers contained in this Section are being made as of the date of
this Agreement and the Closing Date to induce Buyer to enter into this Agreement
and consummate the transactions contemplated herein, and Buyer has relied, and
will continue to rely, upon such representations and warranties from and after
the execution of this Agreement and the Closing. Sellers represent and warrant
to Buyer as follows:
A. INFORMATION AND FINANCIAL STATEMENTS. Sellers have delivered to
Buyer financial statements (either audited financial statements or, if
Sellers do not have audited financial statements, certified financial
statements) and certain other information concerning themselves and
Guarantor, which financial statements and other information are true,
correct and complete in all material respects; and no material adverse
change has occurred with respect to any such financial statements and
other information provided to Buyer since the date such financial
statements and other information were prepared or delivered to Buyer.
Sellers understand that Buyer is relying upon such financial statements
and information and Sellers represent that such reliance is reasonable.
All such financial statements were prepared in accordance with generally
accepted accounting principles consistently applied and accurately
reflect, as of the date of this Agreement and the Closing Date, the
financial condition of each individual or entity to which they pertain.
B. ORGANIZATION AND AUTHORITY. (i) Sellers and Guarantor are duly
organized or formed corporations, validly existing and in good standing
under the laws of their state of incorporation, and qualified to do
business in any jurisdiction where such qualification is required. All
necessary corporate action has been taken to authorize the execution,
delivery and performance of this Agreement and of the other documents,
instruments and agreements provided for herein.
(ii) The person who has executed this Agreement on behalf of Sellers
is duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. Upon execution by Sellers and
Guarantor, this Agreement and the other documents, instruments and
agreements to be executed in connection with this Agreement, shall
constitute the legal, valid and binding obligations of Sellers and
Guarantor, enforceable against Sellers and Guarantor in accordance with
their respective terms.
D. LITIGATION. There are no suits, actions, proceedings or
investigations pending or, to the best of its knowledge, threatened
against or involving Sellers or Guarantor or any of the Properties before
any Governmental Authority which might reasonably result in any material
adverse change in the contemplated business, condition, worth or
operations of Sellers, Guarantor or any of the Properties.
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E. ABSENCE OF BREACHES OR DEFAULTS. Neither Sellers nor Guarantor
are in default under any other document, instrument or agreement to which
Sellers or Guarantor are a party or by which Sellers, Guarantor, any of
the Properties or any of Sellers' or Guarantor's property is subject or
bound, except where such default would not have a Material Adverse Effect.
The authorization, execution, delivery and performance of this Agreement
and the documents, instruments and agreements provided for herein will not
result in any breach or default under any other document, instrument or
agreement to which Sellers or Guarantor are a party or by which Sellers,
Guarantor, any of the Properties or any of Sellers' or Guarantor's
property is subject or bound, except where such breach or default would
not have a Material Adverse Effect. The authorization, execution, delivery
and performance of this Agreement and the documents, instruments and
agreements provided for herein will not violate any applicable law,
statute, regulation, rule, ordinance, code, rule or order, except where
such violation would not have a Material Adverse Effect.
F. UTILITIES. At the Closing Date, each of the Properties will be
served by ample public utilities to permit full utilization of each of the
Properties for their intended purposes and all utility connection fees and
use charges will have been paid in full.
G. INTENDED USE AND ZONING; COMPLIANCE WITH LAWS. Sellers intend to
use each of the Properties solely for the operation of a Permitted
Facility in accordance with the standards of operations then in effect on
a system-wide basis, and related ingress, egress and parking, and for no
other purposes. Each of the Properties is in compliance with all
applicable zoning requirements and the use of each of the Properties as a
Permitted Facility does not constitute an unlawful nonconforming use under
applicable zoning requirements. Each of the Properties complies in all
material respects with all applicable statutes, regulations, rules,
ordinances, codes, licenses, permits, orders and approvals of any
governmental agencies, departments, commissions, bureaus, boards or
instrumentalities of the United States, the states in which the Properties
are located and all political subdivisions thereof, including, without
limitation, all health, building, fire, safety and other codes, ordinances
and requirements, all applicable standards of the National Board of Fire
Underwriters and all policies or rules of common law, in each case, as
amended, and any judicial or administrative interpretation thereof,
including any judicial order, consent, decree or judgment applicable to
Sellers.
H. AREA DEVELOPMENT; WETLANDS. No condemnation or eminent domain
proceedings affecting any of the Properties have been commenced or, to the
best of Sellers' knowledge, are contemplated. To the best of Sellers'
knowledge, the area where any of the Properties is located has not been
declared blighted by any Governmental Authority. Each of the Properties is
not designated by any Governmental Authority as wetlands.
I. LICENSES AND PERMITS; ACCESS. Prior to the Closing Date, Sellers
shall have all required licenses and permits, both governmental and
private, to use and operate each of the Properties in the intended manner.
There are adequate rights of access to
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public roads and ways available to each of the Properties to permit full
utilization of each of the Properties for its intended purpose and all
such public roads and ways have been completed and dedicated to public
use.
J. CONDITION OF PROPERTIES. As of the Closing Date, each of the
Properties will be of good workmanship and materials, fully equipped and
operational, in good condition and repair, free from structural defects,
clean, orderly and sanitary, safe, well lit, landscaped, decorated,
attractive and well maintained.
K. ENVIRONMENTAL. Sellers are fully familiar with the present use of
each of the Properties, and, after due inquiry, Sellers have become
generally familiar with the prior uses of each of the Properties. Except
as set forth in the Questionnaires, to the best of Sellers' knowledge, no
Hazardous Materials have been used, handled, manufactured, generated,
produced, stored, treated, processed, transferred or disposed of at or on
any of the Properties, except in De Minimis Amounts or in compliance with
all applicable Environmental Laws, and no Release or Threatened Release
has occurred at or on any of the Properties. To the best of Sellers'
knowledge, the activities, operations and business undertaken on, at or
about each of the Properties, including, but not limited to, any past or
ongoing alterations or improvements at each of the Properties, are and
have been at all times, in compliance with all Environmental Laws. To the
best of Sellers' knowledge, no further action is required to remedy any
Environmental Condition or violation of, or to be in compliance in all
material respects with, any Environmental Laws, and no lien has been
imposed on any of the Properties by any Governmental Authority in
connection with any Environmental Condition, the violation or threatened
violation of any Environmental Laws or the presence of any Hazardous
Materials on or off any of the Properties.
There is no pending or, to the best of Sellers' knowledge,
threatened litigation or proceeding before any Governmental Authority in
which any person or entity alleges the violation or threatened violation
of any Environmental Laws or the presence, Release, Threatened Release or
placement on or at any of the Properties of any Hazardous Materials, or of
any facts which would give rise to any such action, nor have Sellers (a)
received any notice (and Sellers have no actual knowledge) that any
Governmental Authority or any employee or agent thereof has determined,
threatens to determine or requires an investigation to determine that
there has been a violation of any Environmental Laws at, on or in
connection with any of the Properties or that there exists a presence,
Release, Threatened Release or placement of any Hazardous Materials on or
at any of the Properties, or the use, handling, manufacturing, generation,
production, storage, treatment, processing, transportation or disposal of
any Hazardous Materials at or on any of the Properties; (b) received any
notice under the citizen suit provision of any Environmental Law in
connection with any of the Properties or any facilities, operations or
activities conducted thereon, or any business conducted in connection
therewith; or (c) received any request for inspection, request for
information, notice, demand, administrative inquiry or any formal or
informal complaint or claim with respect to or in connection with the
violation or threatened violation of any Environmental Laws or
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existence of Hazardous Materials relating to any of the Properties or any
facilities, operations or activities conducted thereon or any business
conducted in connection therewith.
The information and disclosures in the Questionnaires are, to the
best of Sellers' knowledge, true, correct and complete in all material
respects, Buyer and Environmental Insurer may rely on such information and
disclosures, and the person or persons executing the Questionnaires were
duly authorized to do so.
L. TITLE TO PROPERTIES. Title to each of the Properties is vested in
Sellers. Upon Closing, title to each of the Properties shall be vested in
Buyer, free and clear of all liens, encumbrances, charges and security
interests of any nature whatsoever, except the Permitted Exceptions.
M. NO OTHER AGREEMENTS AND OPTIONS. Neither Sellers nor Guarantor
nor, to the best of Sellers' knowledge, any of the Properties is subject
to any commitment, obligation, or agreement, including, without
limitation, any right of first refusal, option to purchase or lease
granted to a third party, which could or would prevent Sellers from
completing or impair Sellers' ability to complete the sale of any of the
Properties under this Agreement or which would bind Buyer subsequent to
consummation of the transaction contemplated by this Agreement.
N. NO MECHANICS' LIENS. There are no outstanding accounts payable,
mechanics' liens, or rights to claim a mechanics' lien in favor of any
materialman, laborer, or any other person or entity in connection with
labor or materials furnished to or performed on any portion of any of the
Properties that will not have been fully paid for on or before the Closing
Date; no work has been performed or is in progress nor have materials been
supplied to any of the Properties or agreements entered into for work to
be performed or materials to be supplied to any of the Properties prior to
the date hereof, which will not have been fully paid for on or before the
Closing Date or which might provide the basis for the filing of such liens
against any of the Properties or any portion thereof; Sellers shall be
responsible for any and all claims for mechanics' liens and accounts
payable that have arisen or may subsequently arise due to agreements
entered into for and/or any work performed on, or materials supplied to
any of the Properties prior to the Closing Date; Sellers have made no
contract or arrangement of any kind the performance of which by the other
party thereto would give rise to a lien on any of the Properties; and
Sellers shall and does hereby agree to defend, indemnify and forever hold
Buyer and Buyer's designees harmless for, from and against any and all
such mechanics' lien claims, accounts payable or other commitments
relating to any of the Properties.
O. NO RELIANCE. Sellers acknowledge that Buyer did not prepare or
assist in the preparation of any of the projected financial information
used by Sellers in analyzing the economic viability and feasibility of the
transaction contemplated by this Agreement, and that Sellers have not
relied on any report or statement by Buyer in entering into this
Agreement. Furthermore, Sellers acknowledge that they have not relied
upon, nor may
11
they hereafter rely upon, the analysis undertaken by Buyer in determining
the Purchase Price, and such analysis will not be made available to
Sellers.
P. PURCHASE PRICE. The Purchase Price is the fair market value of
the Properties and was agreed to by Sellers and Buyer solely on that
basis.
All representations and warranties of Sellers made in this Section 8 shall
survive the Closing.
9. COVENANT AND AGREEMENTS OF SELLERS. Prior to the Closing Date, Sellers
shall, at all reasonable times, upon reasonable advance notice from Buyer (i)
provide Buyer and Buyer's officers, employees, agents, advisors, attorneys,
accountants, architects, and engineers with access to each of the Properties,
all drawings, plans, and specifications for each of the Properties in possession
of Sellers, all engineering reports relating to each of the Properties in the
possession of Sellers, the files and correspondence relating to each of the
Properties, and the financial books and records, including lists of
delinquencies, relating to the ownership, operation, and maintenance of each of
the Properties, and (ii) allow such persons to make such inspections, tests,
copies, and verifications as Buyer considers necessary. All such persons shall
use reasonable efforts not to unduly interfere with the conduct of Sellers'
business.
10. TRANSACTION CHARACTERIZATION. A. It is the intent of the parties that
the conveyance of each of the Properties to Buyer be an absolute conveyance in
effect as well as form, and the instruments of conveyance to be delivered at
Closing are not intended to serve or operate as a mortgage, equitable mortgage,
deed of trust, security agreement, trust conveyance or financing or trust
arrangement of any kind, nor as a preference or fraudulent conveyance against
any creditors of Sellers. After the execution and delivery of the deeds
described in Section 11.A, Sellers will have no legal or equitable interest or
any other claim or interest in any of the Properties other than as set forth in
the Lease and Permitted Subleases. Furthermore, the parties intend:
(i) for the Lease to be a true lease and not a transaction creating
a financing lease, capital lease, equitable mortgage, mortgage, deed of
trust, security interest or other financing arrangement, and the economic
realities of the Lease are those of a true lease; and
(ii) for the Lease to constitute a single master lease of all, but
not less than all, of the Properties, and to be a unitary, unseverable
instrument pertaining to all, but not less than all, of the Properties and
that neither the Lease nor the duties, obligations or rights of SLA Mail
may be allocated or otherwise divided by SLA Mail among the Properties.
Notwithstanding the existence of the Lease, none of the parties shall
contest the validity, enforceability or characterization of the sale and
purchase of any of the Properties by Buyer pursuant to this Agreement as an
absolute conveyance, and both parties shall support the intent expressed herein
that the purchase of all of the Properties by Buyer pursuant to this Agreement
provides for an absolute conveyance and does not create a joint venture,
partnership, equitable
12
mortgage, trust, financing device or arrangement, security interest or the like,
if, and to the extent that, any challenge occurs.
B. This Agreement is a contract to extend a financial accommodation (as
such term is used in the Code) for the benefit of Sellers and may not be assumed
over the objection of Buyer in the event Sellers become a debtor or debtor in
possession in any bankruptcy proceeding. The financial accommodation made
through this Agreement is Buyer's acquisition of all of the Properties for the
purpose of leasing all of the Properties to SLA Mail pursuant to a true lease.
11. CONDITIONS OF CLOSING. The obligation of Buyer to consummate the
purchase of the Properties pursuant to this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
A. TITLE. Sellers shall convey each of the Properties to Buyer and
Remainderman by deeds containing covenants and warranties as are customary
in the applicable jurisdiction (collectively, the "Deeds"), free of all
liens, encumbrances, restrictions, encroachments and easements, except the
Permitted Exceptions.
B. CONDITION OF PROPERTIES. Buyer shall have inspected and approved
each of the Properties, and each of the Properties shall be in good
condition and repair, of good workmanship and materials, fully equipped
and operational, clean, orderly, sanitary, safe, well-lit, landscaped,
decorated, attractive and with a suitable layout, physical plant, traffic
pattern and location all as determined by Buyer in its sole discretion.
C. EVIDENCE OF TITLE. Buyer shall have received a preliminary title
report and irrevocable commitment to insure title by means of an ALTA
extended coverage owner's policy of title insurance (or its equivalent, in
the event such form is not issued in the jurisdiction where any of the
Properties is located) issued by Title Company showing good and marketable
fee title in Sellers, committing to insure Buyer's fee simple ownership in
each of the Properties subject only to Permitted Exceptions and containing
such endorsements as Buyer may reasonably require.
D. SURVEY; FLOOD HAZARD. Buyer shall have received a current ALTA
survey of each of the Properties, the form and substance of which shall be
satisfactory to Buyer in its sole discretion. Sellers shall have provided
Buyer with evidence satisfactory to Buyer that the location of each of the
Properties is not within the 100-year flood plain or identified as a
Special Flood Hazard Area by the Federal Emergency Management Agency, or
if any of the Properties is in such a Special Flood Hazard Area, Sellers
shall provide Buyer with evidence of flood insurance maintained on such
Properties in amounts and on terms and conditions satisfactory to Buyer.
13
E. ZONING. If requested by Buyer, Sellers shall have provided Buyer
with evidence satisfactory to Buyer to confirm that each of the Properties
is properly zoned for its use as a Permitted Facility and that such use
constitutes a legal use under applicable zoning requirements.
F. UTILITIES. Buyer shall have received evidence satisfactory to
Buyer in its sole discretion that all utilities and roads necessary for
the operation of each of the Properties as a Permitted Facility are
available and that all necessary consents to the use of such utilities and
roads have been obtained.
G. COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. (i)
All obligations of Sellers under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or condition
shall exist which would, upon the Closing Date, or, upon the giving of
notice and/or passage of time, constitute a breach or default by Sellers
hereunder or under the Lease or any other agreement between or among Buyer
or Sellers pertaining to the subject matter hereof, and no event shall
have occurred or condition shall exist or information shall have been
disclosed by Sellers or discovered by Buyer which has had or would have a
material adverse effect on any of the Properties, Sellers or Buyer's
willingness to consummate the transaction contemplated by this Agreement,
as determined by Buyer in its sole and absolute discretion.
(ii) Buyer shall have received such evidence satisfactory to Buyer
in its reasonable discretion that the representations and warranties of
Sellers under this Agreement are true, correct and complete as of the
Closing Date.
H. PROOF OF INSURANCE. Sellers shall have delivered to Buyer copies
of insurance policies, showing that all insurance required by the Lease
and providing coverage and limits satisfactory to Buyer is in full force
and effect.
I. CLOSING OF LOAN AGREEMENT. All of the transactions described in
the Loan Agreement shall have closed prior to or simultaneously with the
Closing of the transaction described in this Agreement.
J. GUARANTY. Sellers shall have caused Guarantor to execute and
deliver the Guaranty to Buyer.
K. PERMITTED SUBLEASES. SLA Mail and the Permitted Sublessees shall
have executed and delivered the Permitted Subleases to Buyer.
L. CLOSING DOCUMENTS. On or prior to the Closing Date, Buyer,
Sellers and/or Guarantor, as may be appropriate, shall execute and deliver
or cause to be executed and delivered to Title Company or Buyer, as may be
appropriate, all documents required to be delivered by this Agreement, and
such other documents, payments, instruments and certificates, as Buyer may
require in form acceptable to Buyer, including, without limitation, the
following:
14
(i) Deeds;
(ii) Lease and Permitted Subleases;
(iii) Memorandum;
(iv) Acknowledgement;
(v) Proof of Insurance;
(vi) License Agreement;
(vii) Non-Foreign Seller Certificate;
(viii) Closing settlement statement prepared by Title Company;
(ix) Guaranty; and
(x) Such other documents as may be reasonably necessary to
consummate the transaction contemplated herein.
Upon fulfillment or waiver of all of the above conditions, Buyer shall deposit
funds necessary to close this transaction with the Title Company and this
transaction shall close in accordance with the terms and conditions of this
Agreement.
12. DEFAULT AND REMEDIES. A. Each of the following shall be deemed an
event of default by Sellers (each, an "Event of Default"):
(i) If any representation or warranty of Sellers set forth in any of
the Sale-Leaseback Documents is false in any material respect or if
Sellers render any statement or account which is false in any material
respect;
(ii) If any Seller fails to keep or perform any of the terms or
provisions of this Agreement;
(iii) If any Seller or Guarantor is or becomes insolvent within the
meaning of the Code, files or notifies Buyer that it intends to file a
petition under the Code, initiates a proceeding under any similar law or
statute relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts (collectively, an "Action"), becomes the subject of
either a petition under the Code or an Action which is not dissolved
within 90 days after filing, or is not generally paying its debts as the
same become due;
(iv) If there is an "Event of Default" under the Lease or any
Permitted Sublease; or
(v) If there is an "Event of Default" or a breach or default, after
the passage of all applicable notice and cure or grace periods, under any
other Sale-Leaseback Document or any of the Other Agreements.
B. In the event of any Event of Default, Buyer shall be entitled to
exercise, at its option, concurrently, successively or in any combination, all
remedies available under the Lease or at law or in equity, including without
limitation any one or more of the following:
15
(i) To terminate this Agreement by giving written notice to Sellers
in which case neither party shall have any further obligation or
liability, except such liabilities as Sellers may have for such breach or
default;
(ii) To proceed with the Closing and direct Title Company to apply
such portion of the Purchase Price as Buyer may deem reasonably necessary
to cure any such breach or default;
(iii) To bring an action for damages against Sellers, which, in the
event Buyer proceeds to close, may include an amount equal to the
difference between the value of the Properties as conveyed to Buyer and
the value such Properties would have had if all representations and
warranties of Sellers were true and Sellers have complied with all of
their obligations;
(iv) To bring an action to require Sellers specifically to perform
their obligations hereunder; and/or
(v) To recover from Sellers all costs and expenses, including
reasonable attorneys' fees, paid or incurred by Buyer in connection with
the transaction contemplated by this Agreement and all costs and expenses
incurred or paid by Buyer as a result of such breach or default.
The liabilities, obligations and duties of Sellers under this Agreement are
joint and several between and among the Sellers.
13. ASSIGNMENTS. A. Buyer may assign in whole or in part its rights under
this Agreement. In the event of any unconditional assignment of Buyer's entire
right and interest hereunder and provided Buyer's assignee shall have assumed in
writing all of the duties and obligations of Buyer hereunder, Buyer shall
automatically be relieved, from and after the date of such assignment, of
liability for the performance of any obligation of Buyer contained herein.
X. Xxxxxxx shall not, without the prior written consent of Buyer, which
consent may be withheld in Buyer's sole discretion, sell, assign, transfer,
mortgage, convey, encumber or grant any easements or other rights or interests
of any kind in any of the Properties, any of Sellers' rights under this
Agreement or any interest in Sellers, whether voluntarily, involuntarily or by
operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise, except, subsequent to the Closing, as
expressly permitted by the Lease.
C. Notwithstanding anything herein to the contrary, upon any of the
Sellers assigning their interests as Sublessee under any Permitted Sublease
pursuant to and in accordance with Section 12 of their respective Permitted
Sublease, the assigning Seller shall be released and discharged from any right,
liability, obligation or duty arising under this Agreement before and after the
date of such assignment.
14. INDEMNITY. Sellers agree, jointly and severally, to indemnify,
protect, hold harmless and defend Buyer, Lender and their respective directors,
officers, shareholders,
16
members, employees, successors, assigns, agents, lenders, contractors,
subcontractors, experts, licensees, affiliates, lessees, mortgagees, trustees
and invitees, as applicable (collectively, the "Indemnified Parties"), for, from
and against any and all losses, costs, claims, liabilities, damages and expenses
(collectively, "Losses") (including, without limitation, Buyer's reasonable
attorneys' fees and consequential damages but excluding Losses suffered by an
Indemnified Party arising out of such Indemnified Party's gross negligence or
willful misconduct; provided, however, that the term "gross negligence" shall
not include gross negligence imputed as a matter of law to any of the
Indemnified Parties solely by reason of the Buyer's interest in any of the
Properties or Sellers' failure to act in respect of matters which are the
obligation of SLA Mail under the Lease) arising as the result of an
Environmental Condition and/or a breach of any of the representations,
warranties, covenants, agreements or obligations of Sellers set forth in this
Agreement. Without limiting the generality of the foregoing, such indemnity
shall include, without limitation, any damages incurred with respect to any
engineering, governmental inspection and reasonable attorneys' fees and expenses
that the Indemnified Parties may incur by reason of any Environmental Condition
and/or any representation or warranty set forth in Section 8.K being false, or
by reason of any investigation or claim of any Governmental Authority in
connection therewith. The provisions of this Section 14 shall survive the
Closing.
15. INTENTIONALLY DELETED.
16. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, consents, approvals or other instruments
required or permitted to be given by either party pursuant to this
Agreement shall be in writing and given by (i) hand delivery, (ii)
facsimile, (iii) express overnight delivery service or (iv) certified or
registered mail, return receipt requested, and shall be deemed to have
been delivered upon (a) receipt, if hand delivered, (b) transmission, if
delivered by facsimile, (c) the next business day, if delivered by express
overnight delivery service, or (d) the third business day following the
day of deposit of such notice with the United States Postal Service, if
sent by certified or registered mail, return receipt requested. Notices
shall be provided to the parties and addresses (or facsimile numbers, as
applicable) specified below:
17
If to Sellers: Uno Foods, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Saxet Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxx & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. London, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer: Xxxxxxx Family, LLC
000 Xxxxxxx Xxxx Xxxx
Xxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, LLP
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
B. RISK OF LOSS. As between Buyer and Sellers, Sellers shall be
responsible for the risk of loss, damage or destruction of any of the
Properties or any part thereof prior to the Closing Date.
C. CONDEMNATION. In the event of a taking of all or any part of any
of the Properties prior to the Closing, Buyer at its sole option shall
have the right to either (i) receive the proceeds of any condemnation
award and, proceed to close this transaction or (ii) terminate this
Agreement with respect to any Property which is subject to such taking.
Buyer and Sellers agree to execute such amendments to this Agreement as
may be reasonably required by Buyer to evidence any such termination.
18
D. REAL ESTATE COMMISSION. Buyer and Sellers represent and warrant
to each other that they have dealt with no real estate broker, agent,
finder or other intermediary in connection with the transactions
contemplated by this Agreement. Buyer and Sellers shall indemnify and hold
each other harmless for, from and against any costs, claims or expenses,
including attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
E. WAIVER AND AMENDMENT. No provisions of this Agreement shall be
deemed waived or amended except by a written instrument unambiguously
setting forth the matter waived or amended and signed by the party against
which enforcement of such waiver or amendment is sought. Waiver of any
matter shall not be deemed a waiver of the same or any other matter on any
future occasion.
F. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner in
the construction or interpretation hereof.
G. BUYER'S LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this
Agreement by Buyer, that (i) there shall be absolutely no personal
liability on the part of Buyer, its successors or assigns and the
trustees, members, partners, shareholders, officers, directors, employees
and agents of Buyer and its successors and assigns, to Sellers with
respect to any of the terms, covenants and conditions of this Agreement or
the other Sale-Leaseback Documents, as applicable, (ii) Sellers waive all
claims, demands and causes of action against the trustees, members,
partners, shareholders, officers, directors, employees and agents of Buyer
and its successors or assigns in the event of any breach by Buyer of any
of the terms, covenants and conditions of this Agreement or the other
Sale-Leaseback Documents, as applicable, to be performed by Buyer, and
(iii) Sellers shall look solely to the Properties for the satisfaction of
each and every remedy of Sellers in the event of any breach by Buyer of
any of the terms, covenants and conditions of this Agreement or the other
Sale-Leaseback Documents, as applicable, to be performed by Buyer, or any
other matter in connection with this Agreement, the other Sale-Leaseback
Documents or any of the Properties, such exculpation of liability to be
absolute and without any exception whatsoever.
H. SEVERABILITY. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall remain in full force and effect, and such unenforceable
provision shall be reformed by such court so as to give maximum legal
effect to the intention of the parties as expressed therein.
I. CONSTRUCTION GENERALLY. This is an agreement between parties who
are experienced in sophisticated and complex matters similar to the
transaction contemplated by this Agreement and is entered into by both
parties in reliance upon the economic and legal bargains contained herein
and shall be interpreted and construed in a fair and
19
impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the parties or
the domicile of any party. Sellers and Buyer were each represented by
legal counsel competent in advising them of their obligations and
liabilities hereunder.
J. OTHER DOCUMENTS. Each of the parties agrees to sign such other
and further documents as may be necessary or reasonably requested by the
other party in order to carry out the intentions expressed in this
Agreement.
K. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover all of its attorneys' fees
and other costs in addition to any other relief to which it may be
entitled. References in this Agreement to Buyer's attorneys' fees and/or
costs shall mean both the fees and costs of independent counsel retained
by Buyer with respect to this transaction.
L. ENTIRE AGREEMENT. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations, warranties
or agreements, written or oral, between Sellers and Buyer with respect to
the subject matter of this Agreement.
M. RECORDING. At the election of Buyer, this Agreement may be
recorded in the appropriate governmental office so as to impart
constructive notice of the terms and provisions hereof.
N. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Buyer
acknowledges that this Agreement was partially negotiated in the States of
Massachusetts and Illinois. This Agreement was partially executed and
delivered in the States of Massachusetts and Illinois. There are
substantial contacts between the parties and the transactions contemplated
herein and the States of Massachusetts and Illinois. For purposes of any
action or proceeding arising out of this Agreement, the parties hereto
expressly submit to the jurisdiction of all federal and state courts
located in the States of Massachusetts or Illinois depending on situs of
the property. Buyer and Seller consent that they may be served with any
process or paper by registered mail or by personal service within or
without the States of Massachusetts and Illinois in accordance with
applicable law. Furthermore, Buyer and Sellers waive and agree not to
assert in any such action, suit or proceeding that they are not personally
subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the
action, suit or proceeding is improper. The creation of this Agreement and
the rights and remedies of Sellers with respect to the Properties, as
provided herein and by the laws of the states in which the Properties are
located, as applicable, shall be governed by and construed in accordance
with the internal laws of the states in which the Properties are located,
as applicable, without regard to principles of conflicts of law. With
respect to other provisions of this Agreement, this Agreement shall be
governed by
20
the internal laws of the States of Massachusetts or State of Illinois,
depending on the situs of the Property, without regard to its principles
of conflicts of law. Nothing contained in this Section shall limit or
restrict the right of Buyer or Sellers to commence any proceeding in the
federal or state courts located in the states in which the Properties are
located to the extent Buyer or Sellers deem such proceeding necessary or
advisable to exercise remedies available under this Agreement.
O. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
P. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of Sellers and Buyer and their respective successors and
permitted assigns, including, without limitation, any United States
trustee, any debtor-in-possession or any trustee appointed from a private
panel.
Q. SURVIVAL. Except for the conditions of Closing set forth in
Section 11, which shall be satisfied or waived as of the Closing Date, all
representations, warranties, agreements, obligations and indemnities of
Sellers and Buyer set forth in this Agreement (including, without
limitation, the provisions of Sections 7, 8 and 14) shall survive the
Closing.
R. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL AND
INDIRECT DAMAGES. BUYER AND SELLERS HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER
OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN. FURTHERMORE, SELLERS AND BUYER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES FROM EACH OTHER AND
THEIR AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF
THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ANY PARTY OR ITS
AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR ANY OF ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE
WAIVER BY EACH OF THE PARTIES OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES HAS BEEN
21
NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR
BARGAIN.
S. RELIANCE BY LENDER. Sellers acknowledge and agree that Lender may
rely on all of the representations, warranties and covenants set forth in
this Agreement, that Lender is an intended third-party beneficiary of such
representations, warranties and covenants and that Lender shall have all
rights and remedies available at law or in equity as a result of a breach
of such representations, warranties and covenants, including to the extent
applicable, the right of subrogation.
T. TRUST AGREEMENT. The Parties hereto acknowledge that legal title
to the Properties located in Illinois is held by Xxxx Xxxxxx Bank as
Trustee under Trust Agreement dated September 16, 1968 and known as Trust
number 33409 (the "Land Trust") and Saxet Corporation owns the beneficial
interest in and power direction over the Land Trust. Saxet covenants and
agrees that it will exercise its power of direction over the Land Trust to
cause it to effectuate and consummate the transactions involving the
Illinois Properties set forth herein.
22
IN WITNESS WHEREOF, Sellers and Buyer have entered into this Agreement as
of the date first above written.
BUYER:
XXXXXXX FAMILY, LLC,
a Massachusetts limited liability company
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx
SELLERS:
SAXET CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President, Treasurer
and Assistant Secretary
UNO FOODS, INC., a Massachusetts
corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President, Treasurer
and Assistant Clerk
23
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 27, 2001 by
Xxxxx X. Xxxxxxx, a member of Xxxxxxx Family, LLC, a Massachusetts limited
liability company, on behalf of the limited liability company.
/s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------
Notary Public Xxxxxxxxx X. Xxxxxxx
My Commission Expires: 9/2/2006
-------------------------------
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 27, 2001 by
Xxxxxx X. Xxxxxxx, Executive Vice President, Treasurer and Assistant Secretary
of Saxet Corporation, a Delaware corporation, on behalf of the corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------
Notary Public Xxxxxxxxx X. Xxxxxxx
My Commission Expires: 9/2/2006
-------------------------------
24
STATE OF MASSACHUSETTS ]
] SS.
COUNTY OF SUFFOLK ]
The foregoing instrument was acknowledged before me on July 27, 2001 by
Xxxxxx X. Xxxxxxx, Executive Vice President, Treasurer and Assistant Clerk of
Uno Foods, Inc., a Massachusetts corporation, on behalf of the corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------
Notary Public Xxxxxxxxx X. Xxxxxxx
My Commission Expires: 9/2/2006
-------------------------------
25
