SECURED PARTY SALE AGREEMENT
Exhibit 10.1
This Secured Party Sale Agreement (the
“Agreement”) is entered
into as of March 21, 2008, by and between NewStar Financial, Inc., a Delaware
corporation (“Seller”),
as administrative agent and lender under the Credit Agreement (as
hereinafter defined), USDC Portsmouth, Inc., a California corporation (“Purchaser”), and U.S. Dry
Cleaning Corporation, a Delaware corporation (“Parent”).
WITNESSETH
WHEREAS, Seller has a duly
perfected security interest in and lien on substantially all of the assets of
Zoots Corporation, a Delaware corporation (“Zoots”), Zoots Holding
Corporation, a Delaware corporation (“Holding”), Delivery LLC, a
Delaware limited liability company (“Delivery,” and together with
Zoots and Holding, the “Companies,” each of which may
be referred to from time to time herein individually as a “Company”), and Xxxxxx’x, LLC,
a Delaware limited liability company (“Xxxxxx’x”), to secure all
liabilities, obligations and indebtedness owing to Seller under that certain
Credit and Security Agreement dated as of April 1, 2005 among Zoots as
borrower, Holding, Delivery and Xxxxxx’x as guarantors, and Seller (as successor
lender thereunder) (as amended from time to time, the “Credit Agreement”), and the
other agreements, documents and instruments entered into in connection therewith
(collectively, the “Credit
Documents”);
WHEREAS, Events of Default (as
defined in the Credit Agreement) have occurred and are continuing;
WHEREAS, as a result of such
Events of Default and contemporaneously with the execution and delivery hereof,
Seller is conducting a private sale to Purchaser pursuant to Section 9-610 of
the UCC (as defined below) of certain of the assets of the
Companies;
WHEREAS, the Companies have
consented to the sale provided for in this Agreement and have entered into an
Assignment and Assumption Agreement with Purchaser of even date herewith (the
“Assignment Agreement”),
which, among other things, provides for the assignment to Purchaser at Closing
of certain contracts to which the Companies are party; and
WHEREAS, the parties desire to
memorialize the terms and conditions under which Seller will sell to Purchaser,
and Purchaser will purchase from Seller, certain of the assets of the
Companies.
NOW THEREFORE, in
consideration of the mutual covenants and agreements hereinafter set forth, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE
1
THE
TRANSACTIONS; CLOSING
1.1. Purchase and Sale of Purchased
Assets. Subject to the terms and conditions of this Agreement,
at the Closing (as hereinafter defined), Seller, in its capacity as a secured
creditor conducting a private foreclosure sale pursuant to Section 9-610 of the
UCC, shall sell, transfer, assign and deliver to Purchaser, and Purchaser shall
purchase from Seller, all of the Companies’ rights in and to the assets of the
Companies’ assets described on Schedule
1.1 hereof (all of such assets being referred to herein as the “Purchased
Assets”).
1.2. Excluded Assets.
Notwithstanding anything to the contrary contained in this Agreement, the
Purchased Assets do not include: (a) those assets described in
clauses (i), (vi) (to the extent that any fixtures are deemed are to be real
estate requiring a filing with local records), (xii) and (xiii) of Section 2(q)
to the Assignment Agreement (to the extent Seller does not have a
perfected security interest under applicable law), and those assets described on
Schedule 3(a)
of the Assignment Agreement (to the extent Seller does not have a
perfected security interest under applicable law), (b) except $15,000 of the
Companies cash on hand in Virginia and $52,400 of deposits currently in
possession of landlords under real estate leases being assigned to the Purchaser
under the Assignment Agreement, the Companies’ cash, including deposits and
escrows held by others, (c) all amounts due to any Company from any other
Company or Xxxxxx’x, (d) any equity interests owned or held by any Company, (e)
any deposit or investment account of any Company at any financial institution,
(f) any real estate assets, including, without limitation, any rights under any
leases and fixtures (to the extent perfection of the security interest in such
fixtures requires a filing with land records), (g) motor vehicles, (h) any other
assets in which Seller does not have a perfected security interest, and (i)
rights of the Companies in its trademarks and trade names and the rights of
third parties to use such trademarks and tradenames in any jurisdictions other
than Georgia, Maryland, North Carolina, South Carolina and
Virginia.
1.3. Certain
Definitions. Capitalized terms not defined herein shall have
the meaning set forth in the Assignment Agreement. For purposes of
this Agreement, the following terms shall have the meanings indicated
below:
(a) “Affiliate” means, with respect
to any specified Person, any other Person directly or indirectly controlling,
controlled by or under common control with such specified Person.
(b) “Key Landlord Consents” means,
collectively, written estoppels and consents from the Companies’ landlords with
respect to the following stores: Store No. 76, in form and
substance reasonably satisfactory to Purchaser.
(c) “Lien” means any security
interest, mortgage, lien, pledge, adverse claim, interest, charge, option,
conditional sale or other title retention agreement, or other similar
encumbrance.
- 2
-
(d) “Person” means an individual, a
corporation, a partnership, a limited liability company, a trust, an
unincorporated association, a governmental entity or any agency, instrumentality
or political subdivision of a governmental entity, or any other entity or
body.
(e) “UCC” means the Uniform
Commercial Code as in effect from time to time in the Commonwealth of
Massachusetts. Section references herein with respect to the UCC are
to Article 9 of the Uniform Commercial Code as in effect from time to time in
the Commonwealth of Massachusetts.
1.4. Consideration. The
consideration (the “Consideration”) to be given by
Purchaser for the Purchased Assets shall consist of the following:
(a) $764,929
which shall be paid in cash to Seller on the Closing Date (less the deposit
amount paid by Purchaser pursuant to Section 1.4(c) below and the amount paid to
the Seller in escrow pursuant to Section 1.7 below) in immediately available
funds via wire transfer, in accordance with wire instructions to be provided by
Seller at or prior to the Closing; and
(b) Purchaser’s
10% Senior Secured Note in the initial principal amount of $975,000 made to the
order of Seller (the “Note”), as described in
Section 1.5 below (the sum of Sections 1.4(a) and 1.4(b) are the “Purchase Price”), the payment
of which Note shall be unconditionally guaranteed by the Parent pursuant to a
guaranty substantially in the form of Exhibit A (the “Guaranty”).
(c) Upon
execution of this Agreement, Purchaser shall have paid to Seller a deposit in
the amount of $100,000 (the “Deposit”), to be
credited against the Purchase Price for the Purchased Assets conveyed pursuant
to the Sale Agreement. The Deposit shall be held in escrow until
Closing, and shall be refunded unless (i) the Assignment Agreement is terminated
in accordance with Section 8(a)(iii) thereof, (ii) this Agreement is terminated
pursuant to Section 6.1(c) hereof, or (iii) the transactions contemplated by
this Agreement and the Assignment Agreement has closed on the Closing
Date. If the deposit is to be refunded, the Seller shall promptly
cause the Deposit to be returned to Purchaser on March 25, 2008 unless otherwise
agreed by the parties hereto in writing.
1.5. Note, Security Agreement and
Pledge. The Note to be delivered by Purchaser to Seller
pursuant to Section 1.4(b) above shall be in substantially the form of Exhibit B
hereto. The Note shall mature six (6) months after the Closing Date,
with interest payable on a bi-monthly basis. The Note will be secured
by (i) a second priority security interest in all tangible and intangible
property, whether now existing or hereafter acquired or created, of Purchaser,
and (ii) a second priority pledge of the shares of the Purchaser by the Parent
((i) and (ii) are collectively, the “Collateral”) pursuant to a
security agreement substantially in the form of Exhibit C (the “Security Agreement”), and a
pledge agreement substantially in the form of Exhibit D (the “Pledge
Agreement”). Purchaser would be prohibited from pledging the
Collateral to secure any other indebtedness, liability or obligation, provided
that nothing herein, or in the Security Agreement, shall prohibit Purchaser from
granting purchase money security interests solely in assets financed by
unrelated third parties.
- 3
-
1.6. Closing. The
transactions contemplated hereby (the “Transactions”) shall take
place at a closing (the “Closing”) to be held on (a)
the earlier of March 24, 2008, and five (5) business days after the satisfaction
or waiver of the conditions at Closing specified in Article 5 hereof (other than
those conditions which are normally performed at the Closing, but subject to the
satisfaction or waiver of such conditions), or (b) such other date as agreed to
in writing by Seller and Purchaser (the “Closing Date”). The
Closing may be conducted remotely by exchanging signatures via electronic
transmission, with original signatures to be exchanged via overnight
mail.
1.7. Retention in Connection with Key
Landlord Consents. If the Companies fail to deliver the Key
Landlord Consent on or prior to the Closing Date, Purchaser shall pay in escrow
to Seller on the Closing Date $38,744, less 50% of each Retained Amount (as
hereinafter defined) with respect to which a Key Landlord Consent has been
obtained on or before the Closing Date and the related security
deposit. The Consideration may be reduced by the following amounts
(collectively, the “Retained
Amounts”): (i) with respect to Store No. 76, $70,000, and (ii)
the amount of the security deposit under the foregoing lease, as hereinafter
provided. On May 1, 2008, with respect to lease above for which a Key
Landlord Consent has not been timely obtained, Purchaser shall promptly instruct
the Seller, in writing, to transfer 50% of the Retained Amount (together with
the related security deposit) to Purchaser from the escrow, and 50% shall be
set-off by Purchaser against the payments due under the Note (in which event the
Note shall be deemed to be automatically amended accordingly)(effective May 1,
2008) in accordance with the terms hereinafter set forth. In the
event that the Companies or the Seller subsequently deliver any such Key
Landlord Consent to Purchaser on or prior to April 30, 2008, Purchaser shall
promptly instruct Seller, in writing, to transfer to Seller the cash component
of the Retained Amount, together with the related security deposit, with respect
to such Key Landlord Consent.. In the event that the Companies fail
to deliver the Key Landlord Consent to Purchaser on or prior to April 30, 2008,
the Consideration shall automatically be reduced by an amount equal to the
relevant Retained Amount and the amount of the related security deposit, and (x)
Purchaser shall promptly instruct Seller, in writing, to transfer to Purchaser
from the escrow the cash component of such Retained Amount and the related
security deposit and (y) Purchaser shall set-off the remaining 50% of the
relevant Retained Amount against the payments due under the Note, in which event
the Note shall be deemed to be automatically amended accordingly (effective May
1, 2008). If the principal amount of Note is deemed to be
automatically amended in accordance with this Section 1.7, Purchaser shall
promptly deliver to Seller a replacement Note (identical in all regards to the
previous Note other than with respect to the reduced principal amount) which
Seller shall exchange for such previous Note.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller hereby represents and warrants
to Purchaser that each of the statements contained in this Article 2 is true and
correct on the date hereof, and as of the Closing Date:
2.1. Organization, Power and
Standing. Seller and Lender is duly organized, validly
existing and in good standing under the laws of the state of its organization,
and in the case of Seller, has all requisite power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. Seller is the duly appointed and acting agent of the
Lender, with full power and authority to act on its behalf in the manner set
forth in, or as contemplated by, this Agreement.
- 4
-
2.2. Due
Authorization. Seller has full power and authority and has
taken all required action on its part necessary to permit it to execute and
deliver and to carry out the terms of this Agreement and the other agreements,
instruments and documents contemplated hereby.
2.3. Seller Liens; Sale
Process. The Companies’ liabilities to Seller (as agent for
the Lenders) are secured by valid, duly perfected liens on and security
interests in favor of Seller against all of the Purchased Assets. The
Companies are in default under the Credit Documents and, as a result, Seller is
entitled to conduct the private foreclosure sale provided for in this Agreement
and exercise all available remedies under the UCC and to sell, transfer and
convey all of the Companies’ rights in and to the Purchased Assets to Purchaser
pursuant to this Agreement. Neither Seller nor any Lender has
transferred or otherwise assigned or conveyed any right, title or interest of
any Company in and to the Purchased Assets pursuant to Section 9-610 of the UCC
or otherwise to any Person or entered into any agreement, other than this
Agreement, providing therefor. Seller has or at Closing will have
appropriate access to the Purchased Assets to allow for a sale to be completed
pursuant to the Credit Documents and Section 9-610 of the UCC. Seller
has taken, or will take at or prior to Closing, all actions necessary under the
UCC and the Credit Documents to conduct a commercially reasonable sale of the
Purchased Assets under the UCC pursuant to a private foreclosure sale under
Section 9-610 thereof, and to transfer the rights of the Companies in and to the
Purchased Assets in accordance with the provisions of the UCC and this
Agreement. The conveyance contemplated in this Agreement complies
with the requirements of Article 9 of the UCC with respect to the Purchased
Assets.
2.4. Validity and
Enforceability. This Agreement is, and each of the other
agreements, documents and instruments contemplated hereby to which Seller or any
Lender is a party shall be when executed and delivered by Seller or such Lender,
the valid and binding obligations of Seller or such Lender enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, and by laws related to the
availability of specific performance, injunctive relief or other equitable
remedies.
2.5. No
Conflict. Neither the execution and delivery of this Agreement
nor the consummation of the Transactions will (i) violate the organizational
documents or governing instruments of Seller or any Lender; (ii) violate, be in
conflict with, or constitute a default under, or require the consent of any
third party to, any contract or other agreement to which Seller or any Lender is
a party (including but not limited to the Credit Agreement, any forbearance or
other agreement any Company and Seller), or any contract or other agreement
included in the Purchased Assets or to be assigned to Purchaser pursuant to the
Assignment Agreement; or (iii) violate any statute, law, regulation, judgment,
order or decree of any Governmental Authority applicable to Seller or any
Lender.
- 5
-
2.6. Brokers;
Agents. Seller has not dealt with any agent, finder, broker or
other representative in any manner which could result in Purchaser being liable
for any fee or commission in connection with the subject matter of this
Agreement or the Transactions.
2.7. Litigation. To the
knowledge of Seller, there is no order, litigation, action or proceeding pending
or threatened against Seller to be brought before any Governmental Authority
seeking to enjoin, restrain or prohibit the Transactions or that may (or be
reasonably expected to) adversely effect the ability of Purchaser to own or
operate the Purchased Assets. To the knowledge of Seller, there is no
litigation or action pending or threatened against Seller that might call into
question the validity of this Agreement or the other documents evidencing the
Transactions, or any action taken or to be taken pursuant hereto or
thereto.
2.8. Companies’ Obligations to
Seller. Seller is the sole holder of all promissory notes
evidencing the Companies’ obligations under the Credit Agreement, and is
currently the sole lender thereunder.
2.9. No Other Representations or
Warranties. Seller acknowledges that neither Purchaser nor any
of its managers, officers, members, subsidiaries, employees, consultants, agents
or advisors makes or has made any representation or warranty to Seller, any
Lender, or their Affiliates, except for the representations and warranties made
by Purchaser and expressly set forth in Article 3 of this
Agreement.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF PURCHASER AND PARENT
Purchaser and Parent each represents
and warrants to Seller that each of the statements contained in this Article 3
is true and correct as of the date hereof and as of the Closing
Date:
3.1. Organization, Power and
Standing. Purchaser is duly organized, validly existing and in
good standing under the laws of the State of California, and has all requisite
power and authority to execute and deliver this Agreement, the Note, and the
Security Agreement and to perform its obligations hereunder and
thereunder. Parent is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to execute and deliver this Agreement and the Pledge Agreement and
to perform its obligations hereunder and thereunder.
3.2. Authority. Purchaser
and Parent each has full power and authority and has taken all required action
on its part (including board and stockholder approval, as applicable) necessary
to permit it to execute and deliver and to carry out the terms of this Agreement
and the other agreements, instruments and documents of Purchaser and Parent
contemplated hereby.
3.3. No-Conflict. Neither
the execution and delivery of this Agreement nor the consummation of the
Transactions will (i) violate the organizational documents or governing
instruments of Purchaser or Parent; (ii) violate, be in conflict with, or
constitute a default under, or require the consent of any third party to, any
contract or other agreement to which Purchaser or Parent is a party; or (iii)
violate any statute, law, regulation, judgment, order or decree of any
Governmental Authority applicable to Purchaser or Parent.
- 6
-
3.4. Validity and
Enforceability. This Agreement is, and each of the other
agreements, documents and instruments contemplated hereby to which Purchaser and
/or Parent is a party shall be when executed and delivered by Purchaser and/or
Parent, the valid and binding obligations of Purchaser and Parent,
respectively, enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights
generally, and by laws related to the availability of specific performance,
injunctive relief or other equitable remedies.
3.5. Financial
Ability. Purchaser has the financial capability to consummate
the Transactions contemplated by this Agreement and Purchaser understands that
Purchaser’s obligations hereunder are not in any way contingent or otherwise
subject to (i) Purchaser’s consummation of any financing arrangements or
Purchaser obtaining any financing or (ii) the availability of any financing to
Purchaser.
3.6. No Other Representations or
Warranties. Purchaser and Parent each acknowledges that
neither Seller nor any of its directors, officers, stockholders, employees,
consultants, agents or advisors makes or has made any representation or warranty
to Purchaser, Parent, its Affiliates or its financing sources and that the
Purchased Assets are being conveyed to Purchaser “as-is and where-is,” except
for the representations and warranties made by Seller expressly set forth in
Article 2 of this Agreement.
3.7. Existing Liens and Creditors
Rights. The Purchaser and Parent warrant and represent
that:
(a) Other
than Seller’s security interests contemplated hereunder, Setal 2, LLC is the
sole party with security interests in (i) tangible and intangible property of
the Purchaser, and (ii) the capital stock of the Purchaser.
(b) There
are no existing intercreditor agreements between any parties with respect to the
assets described in Section 3.7(a)(i) and (ii).
ARTICLE
4
COVENANTS
4.1 Efforts. Pending
the Closing, Seller and Purchaser will use commercially reasonable efforts to
take or cause to be taken all action and do or cause to be done all things
necessary, proper or advisable to consummate the Transactions contemplated by
this Agreement.
4.2 Confidentiality. Pending the
Closing of all of the transactions contemplated hereby, all trade secrets or
other information of a business, financial, marketing, technical or other nature
pertaining to the Companies or any Company obtained by Purchaser from or on
behalf of Seller or the Companies will be kept confidential and will not be
disclosed by Purchaser other than to its officers, employees, advisors and
financing sources; provided that the
foregoing restriction shall not apply to information which (a) is lawfully and
independently obtained by Purchaser from a third party without restriction as to
disclosure by Purchaser, (b) was known by Purchaser prior to its disclosure by
or on behalf of Seller or the Companies, (c) is in the public domain or enters
into the public domain through no fault of Purchaser, or (d) Purchaser is
required by law or legal process to disclose. If this Agreement is
terminated, Purchaser will cause to be delivered to Seller, and/or the
Companies, as applicable, all materials obtained by Purchaser from or on behalf
of Seller or the Companies, whether obtained before or after the date of this
Agreement. Following the Closing, Purchaser shall not, directly or
indirectly, disclose, divulge or make use of any trade secrets or other
information of a business, financial, marketing, technical or other nature
pertaining to Seller or the Companies that does not solely relate to the
Purchased Assets, including information of others that Seller and/or the
Companies have agreed to keep confidential. Nothing in this
Agreement, including, without limitation, this Section 4.2, shall prevent
Purchaser from making any public announcement and/or filings that it may be
required to make under applicable Law.
- 7
-
4.3 Exclusivity. From
the date of this Agreement through the Closing Date, unless this Agreement is
earlier terminated pursuant to Section 6, except as required by applicable law,
Seller shall deal exclusively with Purchaser and agrees that neither Seller nor
any shareholder, employee, agent, or other Affiliate of Seller will solicit,
initiate, knowingly encourage, or participate in discussions or negotiations
with any third party other than Purchaser regarding any proposals or offers
relating to (i) the issuance, sale or other disposition of any capital stock or
any portion of the business or assets of any of the Companies or (ii) the
merger, consolidation, or other business combination of any of the Companies
with any other Person. Seller hereby agrees that it will immediately
notify Purchaser in the event it is contacted by, or receives an unsolicited bid
or offer, from any Person or their representatives concerning any transaction
that is covered by this Section 4.3.
ARTICLE
5
CONDITIONS
TO CLOSING
5.1. Conditions to Obligations of
Purchaser. Unless waived in writing by Purchaser, the
obligation of Purchaser hereunder to consummate the Transactions is subject to
the satisfaction at or prior to the Closing of the following
conditions:
(a) Representations and Warranties True.
The representations and warranties of Seller contained in Article 2 shall
be true and accurate in all material respects (except that each representation
or warranty already qualified by materiality shall be true and correct in all
respects) on and as of the date of the Closing with the same effect as though
made on and as of such date.
(b) Covenants Performed. Seller
shall have performed and complied in all material respects with the covenants,
agreements and conditions required to be performed or complied with by them
hereunder on or prior to the date of the Closing.
(c) Deliveries By
Seller. At the Closing, Seller shall deliver, or cause to be
delivered, to Purchaser, the following:
(i) a
duly executed Secured Party Xxxx of Sale, in form and substance satisfactory to
Purchaser and Seller, transferring the rights of the Companies in the Purchased
Assets to Purchaser, free and clear of any subordinate Liens to the extent
provided in UCC Section 9-617, together with a transfer statement (as defined in
the UCC) signed by Seller;
- 8
-
(ii) a
duly executed letter of direction to the Companies, in form and substance
satisfactory to Purchaser and Seller, directing the Companies to immediately
deliver possession of the Purchased Assets to Purchaser;
(iii) a
receipt duly executed by Seller evidencing payment of the Purchase
Price;
(iv) a
certificate, dated the Closing Date, signed by Seller certifying as to Seller’s
compliance with clauses 5.1 (a) and (b) above; and
(v) such
other instruments or documents as Purchaser reasonably may request to fully
effect the transfer of the Purchased Assets and to confer upon Purchaser the
benefits contemplated by this Agreement, including, without limitation, such
title transfer documents, mortgage and lien releases, registration instruments
and other documents as may be necessary to convey to Purchaser debtor’s rights
in the Purchased Assets.
(d) Assignment
Agreement. All conditions to the closing of the transactions
contemplated by the Assignment Agreement shall have been waived or satisfied,
and the transactions contemplated by the Assignment Agreement shall be
consummated simultaneously with the transactions contemplated
hereby.
(e) No Injunction. The
consummation of the Transactions contemplated hereby shall not violate any
order, decree or judgment of any court or governmental body having competent
jurisdiction.
(f) Actions and
Proceedings. Prior to the Closing, all actions, proceedings,
instruments and documents required to carry out the Transactions contemplated
hereby or incident hereto and all other legal matters required for such
Transactions shall have been reasonably satisfactory to counsel for
Purchaser.
(g) Continuous
Operation. From the date of this Agreement through the Closing
Date, the Companies shall have continued to operate the Business in the ordinary
course, consistent with current practices, including, without limitation, to
service the Purchased Routes, to operate the Purchased Stores and the Purchased
Facilities and to maintain the Conveyed Assets.
(h) Acknowledgments. At
or prior to the Closing, the Companies and Charlesbank Capital Partners, LLC
(“Charlesbank”), in its
capacity as agent for the purchasers under that certain Note Purchase Agreement
dated February 16, 2007 between the purchasers, Holding, and Charlesbank, shall
acknowledge in writing (in form and substance reasonably satisfactory to
Purchaser) that the Transactions contemplated hereby are commercially reasonable
and that the Purchase Price is adequate, fair and reasonable. The
Companies and Charlesbank (as agent) shall also have waived in writing any
rights of redemption they may have with respect to the Purchased
Assets.
- 9
-
(i) Credit
Documents. Purchaser shall have received evidence reasonably
satisfactory to it that Seller has the right, and has been duly authorized
under, the Credit Documents to enter into this Agreement and consummate the
Transactions.
5.2. Conditions to Obligations of
Seller. Unless waived in writing by Seller, the obligation of
Seller hereunder to consummate the Transactions is subject to the satisfaction
at or prior to the Closing of the following conditions:
(a) Representations and Warranties
True. The representations and warranties contained in Article
3 shall be true and accurate in all material respects on and as of the date of
the Closing with the same effect as though made on and as of such
date.
(b) Covenants
Performed. Purchaser shall have performed and complied in all
material respects with the covenants, agreements and conditions required to be
performed or complied with by it under this Agreement on or prior to the date of
the Closing.
(c) Deliveries By
Purchaser. At the Closing, Purchaser and Parent shall deliver,
or cause to be delivered, to Seller, the following:
(i) the
Purchase Price (including any amounts required to be paid to the Seller in
escrow), the Note and the Security Agreement, each duly executed by Purchaser,
and the Pledge Agreement and Guaranty, each duly executed by the
Parent;
(ii) a
certificate from the Secretary of Purchaser attesting to the incumbency of the
officers of Purchaser signing the Transaction documents, to Purchaser’s
organizational documents and to the resolutions of Purchaser’s authority
regarding the execution, delivery and performance of this Agreement and the
other Transaction documents to which Purchaser is a party and the authority of
the officers of Purchaser to execute the same.
(iii) a
certificate from the Secretary of Parent attesting to the incumbency of the
officers of Parent signing the Transaction documents, to the Parent’s
organizational documents and to the resolutions of Parent’s authority regarding
the execution, delivery and performance of this Agreement, the Guaranty and the
Pledge Agreement and the other Transaction documents to which Parent is a party
and the authority of the officers of Parent to execute the same.
(iv) a
good standing certificate for Purchaser from the Secretary of State of
California; and
(v) a
good standing certificate for Parent from the Secretary of State of
Delaware;
- 10
-
(vi) evidence
satisfactory to Seller that the Parent has secured the Guaranty with a perfected
security interest in the capital stock of Purchaser by delivering the original
certificates and signed stock powers to Setal 2,LLC; and
(vii) such
other instruments or documents as Seller reasonably may request to fully effect
the transfer of the Purchased Assets and to confer upon Seller the benefits
contemplated by this Agreement.
(d) No Injunction. The
consummation of the Transactions contemplated hereby shall not violate any
order, decree or judgment of any court or governmental body having competent
jurisdiction.
(e) Intercreditor
Agreement. Seller shall have entered in an intercreditor
agreement, in form and substance satisfactory to Seller, with the Purchaser,
Parent, and the party holding a first priority security interest in the
Collateral, with respect to certain matters relating to such Collateral,
providing, among other things, (1)
limits the maximum amount of first lien debt issued by Purchaser to $1,500,000;
(2) allows Seller to foreclose on Collateral sixty (60) days after default
unless senior lender diligently pursues its enforcement rights against
Collateral; and (3) allows Seller the unfettered right to pursue other right and
remedies against Purchaser and Parent after default under the Note and
related documents.
(f) Credit
Documents. Purchaser shall have executed and delivered to
Seller the Note and Security Agreement, and Parent shall have executed and
delivered to Seller the Guaranty and Pledge Agreement.
(g) First Lien Loan
Documents. Purchaser shall have furnished the Seller, on the
Closing Date, a complete set of fully executed loan documents relating the first
lien loan to the Purchaser, including without limitation a stock pledge
agreement and amendment to the first lien security agreement..
Seller’s delivery of the Secured Party
Xxxx of Sale and receipt for the Purchase Price shall be deemed to evidence
Seller’s agreement that all conditions set forth in this Article 5 are satisfied
or deemed waived.
ARTICLE
6
TERMINATION
6.1. Termination. This
Agreement and the Transactions contemplated hereby may be terminated at any time
prior to the Closing:
(a) by
mutual written consent of Purchaser and Seller;
(b) by
Purchaser, if Seller shall have breached or failed to perform in any material
respect any of its obligations, covenants or agreements under this Agreement, or
if any of the representations and warranties of Seller set forth in this
Agreement shall not be true and correct to the extent set forth in Article 2,
and such breach, failure or misrepresentation is not cured to Purchaser’s
reasonable satisfaction within 10 days after Purchaser gives Seller written
notice identifying such breach, failure or misrepresentation;
- 11
-
(c) by
Seller, if Purchaser shall have breached or failed to perform in any material
respect any of its obligations, covenants or agreements under this Agreement, or
if any of the representations and warranties of Purchaser set forth in this
Agreement shall not be true and correct to the extent set forth in Article 3,
and such breach, failure or misrepresentation is not cured to Seller’s
reasonable satisfaction within 10 days after Seller gives Purchaser written
notice identifying such breach, failure or misrepresentation;
(d) by
Purchaser, if the conditions set forth in Section 5.1 become incapable of
satisfaction;
(e) by
Seller, if the conditions set forth in Section 5.2 become incapable of
satisfaction;
(f) by
Purchaser or Seller, if the Closing shall not have occurred on or before March
17, 2008 or such other date, if any, as Purchaser and Seller may agree in
writing.
(g) by
mutual agreement if the landlord for the premises at 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxxx has not consented to the assignment of such lease to
Purchaser on or before the Closing Date.
(h) this
Agreement shall automatically terminate upon termination of the Assignment
Agreement.
6.2. Effect
of Termination.
(a) If
this Agreement is terminated under Section 6.1, all further obligations of each
party to the other will terminate without further liability of any party, except
to the extent that any party has breached its obligations under this
Agreement.
(b) The
obligations of Purchaser under Section 4.2 shall survive the termination of this
Agreement for a period of eighteen (18) months.
ARTICLE
7
INDEMNIFICATION
7.1. Survival of Representations and
Warranties; Indemnification.
(a) The
representations and warranties of Seller and Purchaser contained in this
Agreement, or in any certificate or other instrument delivered in connection
herewith, shall survive the Closing and shall expire upon the first to occur of
(x) six (6) months
after the Closing Date, or (y) the date the Note is paid
in full, provided that
if any party hereto, before the expiration date of a representation or warranty
given by another party hereto, delivers to such other party in good faith a
written notice alleging a bona fide breach of such representation or warranty
with sufficient detail to identify the claim and the amount of the indemnity
being sought, the applicable representation or warranty shall survive until, but
only for purposes of, the resolution of the matter covered by such notice. Any
amounts under the Note not subject to bona fide set-off claims as herein
provided shall be paid in full on the scheduled maturity date of the
Note. If the Purchaser shall fail to timely pay all amounts due as
described in the preceding sentence, all rights of set-off against the Note,
including any pending claims, shall be extinguished automatically, and the
Purchaser shall have no further rights under Article 7.
- 12
-
(b) From
and after the date hereof, and at all times subject to (e) below, Seller shall
defend, indemnify and hold harmless Purchaser (each a “Purchaser Indemnified Party”)
from, against and in respect of any and all claims, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies (including,
without limitation, interest, penalties and reasonable attorneys’ fees) (“Losses”), that such Purchaser
Indemnified Party may incur, sustain or suffer resulting from or arising out of
(i) any breach of or any inaccuracy in any representation or warranty of Seller
contained in this Agreement, or any other certificate or other document
delivered by Seller pursuant to this Agreement, or in any Schedule or Exhibit
hereto or thereto, and/or (ii) any breach or failure to perform any covenant or
agreement of Seller contained in this Agreement, and/or (iii) the reasonable
legal costs and expenses incurred by Purchaser attributable to claims brought
against the Purchaser by the following parties: Xxxxxxx’x Inc., Clothing Care,
Inc., and Xxxxxxx X. Xxxxxx, Xx., seeking to: (1) enjoin the purchaser from
operating business or dispose of its assets; (2) attach or encumber any
Purchased Assets or Conveyed Assets (as that term is defined in the Assumption
Agreement) or any proceeds generated by the Purchaser in operating its
businesses in Virginia, or (3) avoid the transactions effected by this Agreement
or the Assignment Agreement; provided that, subject to
Section 7.1(e) below, the sole recourse of each Purchaser Indemnified Party with
respect to claims under (i), (ii) and (iii) above shall be against the Note (as
described in Section 7.1(d) below).
(c) From
and after the date hereof, Purchaser shall defend, indemnify and hold harmless
Seller (each a “Seller
Indemnified Party”) from, against and in respect of any and all Losses
that such Seller Indemnified Party may incur, sustain or suffer resulting from
or arising out of (i) any breach of or any inaccuracy in any representation or
warranty of Purchaser contained in this Agreement, or any other certificate or
other document delivered by Purchaser pursuant to this Agreement, or in any
Schedule or Exhibit hereto or thereto, and/or (ii) any breach or failure to
perform any covenant or agreement of Purchaser contained in this Agreement,
provided that the liability of the Purchaser with respect to such indemnity
shall not exceed $1,000,000 in the aggregate, if the Transactions contemplated
hereby have closed, and any claims asserted by the Purchaser under Section
7.1(a) are bona fide and made in good faith.
(d) In
the event that any Purchaser Indemnified Party shall have incurred, sustained or
suffered any Loss with respect to which it is entitled to be indemnified under
Section 7.1(b) above, the sole recourse of such Purchaser Indemnified Party
(subject to Section 7.1(e) below) shall be for Purchaser to set-off the
full amount of such Loss against the unpaid principal amount the Note, in which
event the Note shall be deemed to be automatically amended
accordingly. In addition, Purchaser shall have the right to set-off
against the unpaid principal amount of the Note the full amount of the Losses
arising as a result of breaches by the Companies under Section 3(c) and Section
9(f)(iv) of the Assignment Agreement, in which event the unpaid principal Note
shall be deemed to be automatically amended accordingly. For the
avoidance of doubt, no offsets against the Note contemplated by the previous
sentence can be effected for claims asserted after the scheduled maturity date
of the Note. Upon transfer by the Companies or their designees of the
xxxxx.xxx web-site and
800 number in compliance with Section 9(f)(iv) of the Assignment Agreement, the
Purchaser shall have no right of set-off against the Note with respect to such
Section 9(f)(iv). In addition, subject to Section 7.1(e) below, the
sole recourse of each Purchaser Indemnified Party with respect to claims under
this Section 7.1(d) shall be against the Note.
- 13
-
(e) Except
as hereinafter provided, Purchaser’s sole remedy with respect to this Article 7
shall be to offset any Losses against the then outstanding principal balance of
the Note (as the same may be reduced under Section 1.7 hereof), and there shall
be no other recourse against Seller. If, however, the Seller elects
to collect upon the Note on the scheduled maturity date, and Parent has paid the
Note without effecting one or more of the set-offs that it was entitled to make
under this Article 7, notwithstanding anything contained herein to the contrary,
the Seller shall be liable to make indemnity payments to Purchaser under this
Article 7 up to an aggregate maximum amount equal to the outstanding principal
amount paid in cash by the Purchaser to Seller on account of the
Note. The limitation on the Seller’s liability under this Section 7.1
will terminate automatically if the Seller has asserted claims under Section
7.1(c) that are not bona fide and made in good faith.
(f) All
disputes arising under Section 7.1 of this Agreement (including the scope of
this agreement to arbitrate) shall be resolved by binding arbitration which
shall be administered by AAA in accordance with AAA’s Commercial Arbitration
Rules. The arbitration shall be conducted and the award shall be
rendered in New York, New York or such other place as the parties to the
arbitration agree before a single arbitrator that is mutually
designated. Each arbitrator shall be a retired judge or a practicing
attorney with no less than fifteen (15) years of experience in arbitration and
in commercial law. The arbitrator shall be required to follow the law of the
Commonwealth of Massachusetts and the provisions of this
Agreement. For purposes of this Section 7.1, Seller and Parent shall
be considered the same party to a dispute. The arbitration shall be
commenced not later than forty-five (45) days after the scheduled maturity date
of the Note, and must be completed within forty-five (45) days of the
arbitration’s commencement. The failure to timely commence and
prosecute such arbitration in accordance with this provision shall serve as a
bar to any set-off or other recovery hereunder.
7.2. Expenses. The
parties hereto agree that expenses under Section 7.1 hereof, shall be borne and
paid as follows:
(a) The
fees and expenses of the arbitrator shall be borne one-half by Purchaser and
one-half by Seller. The Purchase shall pay such fees, and the
principal amounts due under the Note shall be reduced by the portion paid on
behalf of Seller.
(b) If
a party asserts a claim under and in accordance with Section 7.1, and is awarded
at least 75% of the amount of its claim, the losing party shall pay the claimant
the lesser of (x) the claimant’s actual costs and expenses for pursuing the
claim, and (y) $50,000 within ten (10) days of the arbitrator’s
decision.
(c) If
a party asserts a claim under and in accordance with Section 7.1, and is awarded
less than 75% of the amount of its claim but more than 35% of such claim, each
party shall bear its own actual costs and expenses.
- 14
-
(d) If
a party asserts a claim under and in accordance with Section 7.1, and is awarded
less than 35% of the amount of its claim, the claimant shall pay the other party
the lesser of (x) the other party’s actual costs and expenses for defending the
claim, and (y) $50,000 within ten(10) days of the arbitrator’s
decision.
(e) If
the prevailing party is the Purchaser, the Purchaser shall off set the expense
reimbursement against any amounts due Seller under the Note. If the
amount due from the Seller exceeds amounts owing to it under the Note after
giving effect to the set-off, the Seller shall pay the Purchaser any amount due
Purchaser within ten (10) days after the arbitrator’s decision. The
Purchaser shall provide satisfactory documentation of its fees and expenses
contemporaneously with the exercise of set-off or within five (5) days after the
arbitrator’s decision.
(f) If
the prevailing party is the Seller, the Purchaser shall pay the Purchaser any
amount due Purchaser within ten (10) days after the arbitrator’s decision,
including, without limitation, any amounts due under the Note.. The
Seller shall provide satisfactory documentation of its fees and expenses or
within five (5) days after the arbitrator’s decision..
(g) If
the Purchaser fails to pay any amounts then due under the Note within within ten
(10) days after the arbitrator’s decision, interest shall commence to accrue on
the amounts due under the Note at the Default rate set forth therein until paid
in full.
ARTICLE
8
MISCELLANEOUS
8.1. Notices. All
notices, demands or other communications hereunder shall be in writing and shall
be deemed to have been duly given if delivered in person, by e-mail or fax, by
United States mail, certified or registered with return receipt requested, or by
a nationally recognized overnight courier service, or otherwise actually
delivered:
(a) if
to Seller, to:
Xxxxxx Xxxxxxxxx
NewStar Financial, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
with a
copy (which shall not constitute notice) to:
Xxxx
Xxxxx
Xxxxxxx
Xxxxxx Xxxxxx & Dodge LLP
000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
XX 00000
- 15
-
(b) if
to Purchaser, to:
U.S. Dry
Cleaning Corp.
0000
XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Telecopier: (000)
000-0000
Attn.: Xx.
Xxxxxx X. (Xxxxxx) Xxx, Chief Executive Officer
with
copies (which shall not constitute notice) to:
Xxxxxx,
Neale, Bender, Xxxxxx & Xxxxx L.L.P.
00000
Xxxxxxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, XX 00000
Telecopier: (000)
000-0000
Attn.: Xx.
Xxxxxx Xxxxx
and
Xxxxxxxxx
Xxxxxxx, LLP
The Met
Life Building
000 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Telecopier: (000)
000-0000
Attn.: Xxxxxxx
X. Xxxxxxx, Esq.
or at
such other address as may have been furnished by such person in writing to the
other parties. Any such notice, demand or communication shall be
deemed given on the date given, if delivered in person, e-mailed or faxed or
otherwise actually delivered, on the date received, if given by registered or
certified mail, return receipt requested or given by overnight delivery service,
or three days after the date mailed, if otherwise given by first class mail,
postage prepaid.
8.2. Governing Law;
Forum. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts
applicable to agreements executed and to be performed solely within such
Commonwealth. Any judicial proceeding arising out of or relating to
this Agreement shall be brought in the courts of the Commonwealth of
Massachusetts, and, by execution and delivery of this Agreement, each of the
parties to this Agreement accepts the exclusive jurisdiction of such courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. Each of the parties further agrees that a
summons and complaint commencing an action or proceeding in any of such courts
shall be properly served and shall confer personal jurisdiction if served to it
at the address and in the manner set forth in Section 8.1 or as otherwise
provided under the laws of the Commonwealth of Massachusetts. This
provision may be filed with any court as written evidence of the knowing and
voluntary irrevocable agreement between the parties to waive any objections to
jurisdiction, to venue or to convenience of forum. The foregoing
consents to jurisdiction and appointments of agents to receive service of
process shall not constitute general consents to service of process in the
Commonwealth of Massachusetts for any purpose except as provided above and shall
not be deemed to confer rights on any Person other than the respective parties
to this Agreement.
- 16
-
8.3. Amendments, Waivers. This
Agreement may be amended or modified only with the written consent of Purchaser
and Seller. No waiver of any term or provision hereof shall be
effective unless in writing signed by the party waiving such term or
provision. No failure to exercise or delay in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The rights provided hereunder are cumulative and not
exclusive of any rights, powers or remedies provided by law.
8.4. Expenses. Except as
otherwise expressly set forth herein, all legal and other costs and expenses
incurred in connection with this Agreement and the Transactions contemplated
hereby shall be paid by the party incurring such costs and
expenses.
8.5. Successors and Assigns. This
Agreement, and all provisions hereof, shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, provided
that this Agreement may not be assigned by any party without the prior written
consent of the other parties hereto except that this Agreement may be assigned
by Purchaser to any of its Affiliates or to any Person financing or acquiring a
material portion of the assets, business or securities of Purchaser, whether by
merger, consolidation, sale of assets or securities or otherwise.
8.6. Entire Agreement. This
Agreement, the attached exhibits and schedules, and the other agreements,
documents and instruments contemplated hereby and thereby contain the entire
understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to the
subject matter hereof unless expressly referred to herein.
8.7. Counterparts. This
Agreement may be executed in one or more counterparts, and with counterpart
facsimile signature pages, each of which shall be an original, but all of which
when taken together shall constitute one and the same Agreement.
8.8. Headings. The
headings of Articles and Sections herein are inserted for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
8.9. Further Assurances. Following
the Closing, the parties will execute and deliver such documents and take such
other actions as may be reasonably requested from time to time by Purchaser or
Seller in order to fully consummate the Transactions.
8.10. Third Party Beneficiaries.
Nothing in the Agreement shall be construed to confer any right, benefit
or remedy upon any Person that is not a party hereto or a permitted assignee of
a party hereto, except as otherwise expressly set forth in this
Agreement.
8.11. No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement and the other agreements and
documents contemplated herein. In the event an ambiguity or question
of intent or interpretation arises under any provision of this Agreement or any
other agreement or documents contemplated herein, this Agreement and such other
agreements or documents shall be construed as if drafted jointly by the parties
thereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of authoring any of the provisions of this
Agreement or any other agreements or documents contemplated herein.
- 17
-
8.12. Schedules and
Exhibits. All Schedules and Exhibits to this Agreement are an
integral part of this Agreement and are incorporated herein by reference in this
Agreement for all purposes of this Agreement. Information set forth
on any Schedule shall be deemed to qualify each other section of this Agreement
to which such information is applicable (regardless of whether or not such other
section is qualified by reference to a Schedule). No information set
forth on any Schedule shall be deemed to broaden in any way the scope of
Seller’s representations and warranties. Neither the specification of
any dollar amount in the representations and warranties contained in this
Agreement nor the inclusion of any item on a Schedule is evidence of or intended
to imply the materiality of such item for purposes of the Agreement, or that
such item is a disclosure required under the Agreement. Any
description of any agreement, document, instrument, plan, arrangement or other
item set forth in a Schedule is a summary only and is qualified in its entirety
by the terms of such agreement, document, instrument, plan, arrangement or item,
copies of which have been made available to Purchaser. No disclosure
in any Schedule relating to any possible breach or violation of any agreement,
law or regulation shall be construed as an admission or indication that any such
breach or violation exists or has actually occurred, or shall constitute an
admission of liability to any third party.
8.13. Waiver of Jury Trial. EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
8.14. Severability. This Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision hereof shall be prohibited or invalid under
any such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating or nullifying the remainder of
such provision or any other provisions of this Agreement. If any one
or more of the provisions contained in this Agreement shall for any reason be
held to be excessively broad as to duration, geographical scope, activity or
subject, such provisions shall be construed by limiting and reducing it so as to
be enforceable to the maximum extent permitted by applicable law.
8.15. Certain Taxes. All transfer,
documentary, sales, use, real property gains, stamp, registration, and other
such Taxes and fees incurred in connection with this Agreement shall be paid by
Seller when due.
[Signature
page follows]
- 18
-
IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Agreement as a sealed instrument as of the date
first above written.
|
NEWSTAR
FINANCIAL, INC., as
Administrative
Agent and Lender
By: /s/ Xxxxxx
Xxxxxxxxx
Name: Xxxxxx
Xxxxxxxxx
Title: Managing
Director
USDC
PORTSMOUTH, INC.
By:
Name:
Title:
U.S.
DRY CLEANING CORPORATION
By:
Name:
Title:
|
The
undersigned, being the sole stockholder of USDC Portsmouth, Inc., Purchaser
named in, and party to, the foregoing Agreement, hereby unconditionally
guarantees the timely payment and performance by such Purchaser of its
obligations under the foregoing Agreement, and agrees that such guarantee shall
not in any manner be affected or impaired by (a) any amendment or modification
of the Agreement or any other Transaction Documents, (b) any waiver or
indulgence granted or permitted under any of the Transaction Documents, (c) any
bankruptcy, insolvency, reorganization or other such proceeding at any time
against Purchaser, or (d) any other fact, event, circumstance or condition which
might constitute a legal or equitable defense to the obligations of a
guarantor.
|
U.S.
DRY CLEANING CORPORATION
By:
Name:
Title:
|
- 19
-
Schedule
1.1
Secured
Party Sale Agreement date as of March 21, 2008
Among
Newstar
Financial, Inc, as Administrative Agent, as Seller
and
USDC
Portsmouth, Inc, as Purchaser, and U.S. Dry Cleaning Corporation
PURCHASED
ASSETS
Each Company’s right, title and
interest in tangible and intangible property and assets of such Company used in
the operation of the business of such Company at those locations and zip codes
identified described below (the “Portsmouth
Locations”):
(a) all
tangible personal property, including without limitation, all goods, inventory
(including, without limitation, all merchandise, raw materials, work in process,
finished goods and supplies), machinery, equipment (subject to the rights of any
equipment lessor in such equipment), tools, furniture, fixtures (other than any
fixtures that are deemed to be real estate requiring a filing with local land
records), office supplies, computers and associated equipment (subject to the
rights of any equipment lessor in such equipment) used in the operation of the
business of the Company and located at any of the Portsmouth
Location;
(b) all
rights and privileges under all authorizations, permits, licenses and franchises
issued, granted or licensed to any Company for the operation of its business at
each Portsmouth Location to the extent such rights and privileges constitute
general intangibles;
(c) the
entire goodwill of the business of each Company associated exclusively with the
operation of the Portsmouth Locations; and
(e) all
other personal property of each Company, including, without limitation, all
accounts, accounts receivable, all lists, data, other general intangibles and
other documents and papers relating exclusively to the operation of the business
at the Portsmouth Locations, and all financial books and records and other books
and records relating exclusively to the business of each Company at the
Portsmouth Locations.
Notwithstanding the foregoing, the
“Applicable Collateral” shall not include the Excluded
Assets.
Portsmouth
Locations
|
Store
#
|
Xxxxxx
Xxxxxxx
|
Xxxx
|
Xxxxx
|
Xxx
|
|||||||
|
00
|
Xxxxxxxxx,
XX
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
|||||||
|
00
|
Xxxxxxxxxx
Xx, XX
|
0000
Xxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
|||||||
|
00
|
Xxxxx
Xxxxxx, XX
|
000
Xxxxx Xxxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
|||||||
|
00
|
Xxxxxxx
Xxxxx, XX
|
000
Xxxxxxx Xxxxxxx Xxxx
|
Xxxxxxx
Xxxxx
|
XX
|
|||||||
|
23
|
Pembroke,
VA
|
0000
Xxxxxxxx Xxxxx Xxxx
|
Xxxxxxxx
|
XX
|
|||||||
|
35
|
Kempsville,
VA
|
0000
Xxxxxx Xxxxx Xx
|
Xxxxxx
Xxxxx
|
XX
|
|||||||
|
37
|
Great
Neck, VA
|
1416
North Great Neck Rd
|
Great
Neck
|
VA
|
|||||||
|
41
|
NAB
- Little Creek VA
|
Building
0000 Xxxxx Xxxx
|
Xxxxxxx
|
XX
|
|||||||
|
46
|
Chesapeake
(Greenbrier), VA
|
0000
Xxxxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
|||||||
|
55
|
Newport
News, VA
|
00000
Xxxxxxxxx Xxx, Xxx. 000
|
Xxxxxxx
Xxxx
|
XX
|
|||||||
|
00
|
Xxxxxxxx
Xxxxxxxx.
|
000
Xxxxx Xxxxxx Xxxx.
|
Xxxxxxxxxx
|
XX
|
|||||||
|
Plant
|
|||||||||||
|
Portsmouth,
VA
|
0000
Xxxxxxx Xxxx.
|
Xxxxxxxxxx
|
XX
|
||||||||
