EXHIBIT 10.18
SALE-LEASEBACK AGREEMENT
THIS SALE-LEASEBACK AGREEMENT (this "Agreement") is made as of June 23,
2000, by and between CH RESTAURANT PROPERTY, LLC, a Delaware limited liability
company ("Buyer"), whose address is c/o U.S. Realty Advisors, LLC, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and CHART HOUSE, INC., a Delaware
corporation ("Seller"), whose address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used in this
Agreement shall have the meanings set forth in Section 1. Seller owns the
Properties (provided that Seller is the owner of a leasehold interest in the
Patio Portion). Buyer desires to purchase the Properties (including Seller's
leasehold interest in the Patio Portion) pursuant to this Agreement and lease
the Properties to Seller pursuant to the Lease.
AGREEMENT:
In consideration of the mutual covenants and provisions of this Agreement,
the parties agree as follows:
1. Definitions. The following terms shall have the following meanings for
all purposes of this Agreement:
"Acknowledgement" means the acknowledgement of master lease assignment and
nondisturbance dated as of the date of this Agreement to be executed by Lender,
Seller, Buyer, and HC Remainder, LLC. 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 that certain commitment letter dated May 18, 2000, among
U.S. Realty Advisors, LLC and Guarantor, and any amendments or supplements
thereto.
"Counsel" means one or more legal counsel to Seller and Guarantor licensed
in (or expert in the laws of) the states in which (i) the Properties are
located, (ii) Seller and Guarantor are incorporated or formed and (iii) Seller
and Guarantor maintain their chief executive offices, as selected by Seller 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
Seller, 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 Insurer" means American International Specialty Lines
Insurance Company or such other insurer providing Environmental Policies
reasonably acceptable to Buyer.
"Environmental Laws" means any present and future federal, state and local
laws, statutes, ordinances, rules, regulations and the like, as well as common
law, 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
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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 person or entity,
whether or not in connection with transfer of title to or interest in property;
imposing conditions or requirements relating to Hazardous Materials in
connection with permits or other authorization for lawful activity; 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.
"Environmental Policies" means the environmental insurance policy or
policies, as applicable, issued by Environmental Insurer to Buyer with respect
to the Properties, which Environmental Policies shall be in form and substance
satisfactory to Buyer in its sole discretion.
"Event of Default" has the meaning set forth in Section 12.
"Fee" means an expense deposit made to cover certain of Buyer's costs and
expenses associated with the transactions contemplated hereby equal to
$150,000.00, which amount has been paid prior to the execution of this
Agreement.
"Franchise Finance" means Franchise Finance Corporation of America, a
Maryland corporation, and its successors.
"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.
"Guarantor" means Chart House Enterprises, Inc., a Delaware corporation.
"Guaranty" means that certain unconditional guaranty of payment and
performance dated as of the date of this Agreement to be executed by Guarantor
for the benefit of Buyer, as the same may be amended from time to time.
"Hazardous Materials" means (i) any toxic substance or hazardous waste;
(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
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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 Seller, as lessee, with
respect to the Properties, as the same may be amended from time to time.
"Lender" means FFCA Acquisition Corporation, a Delaware corporation.
"Letter of Credit" shall have the meaning set forth in the Put Agreement.
"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.
"Memorandum" means the memorandum of master lease dated as of the date of
this Agreement to be executed by Buyer, as lessor, and Seller, 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 Seller to Buyer prior to or on the Closing Date.
"Other Agreements" means, collectively, all agreements and instruments now
or hereafter entered into between, among or by (1) any of the Seller Entities,
and, or for the benefit of, (2) Buyer; provided, however, the term Other
Agreements shall not include this Agreement and the other Sale-Leaseback
Documents.
"Patio Lease" means the Lease Agreement dated as of June 18, 1979 between
Patio Lessor and Seller (as successor to Paragon Restaurant Group, Inc.
(formerly Vicorp Specialty Restaurants, Inc.).
"Patio Lessor" means XxXxxxxxx Ranch Property Owners Association.
"Patio Portion" means the portion of the Property located at 0000 XxXxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxx which is subject to the Patio Lease.
"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. Buyer will be deemed to have approved all exceptions in the title
insurance policies issued at the Closing.
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"Permitted Facility" means a Chart House restaurant or such other
restaurant concepts of Guarantor and its subsidiaries which are approved by
Buyer after the Closing, such approval not to be unreasonably withheld,
conditioned or delayed.
"Properties" means, collectively, the parcels of real estate described by
address, Buyer Number and Unit Number in Exhibit A attached hereto and legally
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described in Exhibit A-1 attached hereto, all rights, privileges and
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appurtenances associated therewith, and all buildings, structures, fixtures and
other improvements now or hereafter located on such real estate (whether or not
affixed to such real estate).
"Purchase Price" means the amount specified in Section 3.
"Put Agreement" means the post-closing agreement dated as of the date of
this Agreement to be executed by Seller, Buyer, Lender and HC Remainder, LLC
with respect to the Property located at 0000 X.X. Xxxxxxxxxxx, Xxxxxxxx, Xxxxxx.
"Questionnaires" means the environmental questionnaires completed by Seller
with respect to each of the Properties and submitted to Environmental Insurer in
connection with the issuance of the Environmental Policies.
"Release" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials.
"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 action to comply with any Environmental Laws or with any permits issued
pursuant thereto, any inspection, investigation, study, monitoring, assessment,
audit, sampling and testing, laboratory or other analysis, or any evaluation
relating to any Hazardous Materials.
"Sale-Leaseback Documents" means this Agreement, the Lease, the Memorandum,
the Acknowledgement, the Guaranty, the Put Agreement and all other documents
executed in connection therewith or contemplated thereby.
"Seller Entities" means, collectively, Seller, Guarantor and all Affiliates
of Seller or Guarantor.
"Threatened Release" means a substantial likelihood of a Release which
requires action 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.
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"UCC-1 Financing Statements" means such UCC-1 Financing Statements as Buyer
shall require to be executed and delivered by Seller with respect to the
transactions contemplated by this Agreement.
2. Transaction. On the terms and subject to the conditions set forth
herein:
(i) Seller shall sell, or cause to be conveyed, and Buyer shall
purchase all of the Properties;
(ii) Buyer shall lease all of the Properties to Seller pursuant to
the Lease; and
(iii) Seller shall cause Guarantor to guaranty all of the obligations
of Seller under the Lease pursuant to the Guaranty.
The sale and purchase of all of the Properties pursuant to this Agreement
and the lease of all of the Properties to Seller pursuant to the Lease are not
severable and shall be considered a single integrated transaction.
3. Purchase Price. The aggregate gross purchase price for all of the
Properties (including the capitalized closing costs described below) shall be
$15,000,000.00 (the "Purchase Price"). The Purchase Price has been allocated
among the Properties as set forth on Exhibit A attached hereto. The Purchase
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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 Seller or at Seller's direction. The Purchase Price
includes capitalized closing costs of Buyer incurred in connection with the
acquisition of the Properties and the financing of the acquisition of the
Properties in the aggregate amount of $_______________, which capitalized
closing costs shall be payable out of the Purchase Price.
4. Expense Deposit. The Fee previously paid to Buyer was deemed fully
earned upon Buyer's receipt and is not refundable except as otherwise provided
below. In the event the transaction set forth in this Agreement fails to close
due to a breach or default by Seller under this Agreement, Buyer shall retain
the Fee (without affecting or limiting Buyer's remedies set forth in this
Agreement). In the event the transaction set forth in this Agreement fails to
close due to a breach or default by Buyer under this Agreement, Buyer shall
return the Fee to Seller. In the event the transaction set forth in this
Agreement fails to close for any reason other than a breach or default by either
party hereto, the Fee, less Buyer's reasonable expenses incurred in connection
with this transaction, including, but not limited to, attorneys fees, Lender's
expenses and due diligence expenses, shall be returned to Seller.
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 June 23, 2000, unless such extension shall be approved by
Buyer and Seller in their sole discretion (the date on which the Closing shall
occur is referred to herein as the "Closing Date").
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6. Closing. Buyer has ordered a title insurance commitment for each of
the Properties from LandAmerica Financial Group ("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 reasonable costs of such
transaction shall be borne by Seller, including, without limitation, the
reasonable cost of title insurance and endorsements, the attorneys' fees of
Seller and Guarantor, reasonable attorneys' fees of Buyer, the reasonable cost
of the Environmental Policies to be delivered pursuant to Section 11.E, the
reasonable 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
delinquent on the Closing Date shall be paid by Seller at or prior to the
Closing, and all other taxes and assessments shall be paid by Seller in its
capacity as lessee under the Lease in accordance with the terms of the Lease.
The Closing documents shall be dated as of the Closing Date.
Seller and Buyer hereby employ Title Company to act as escrow agent in
connection with this transaction. Seller and Buyer will deliver to Title Company
all documents, pay to Title Company all sums and do or cause to be done all
other things necessary or required by this Agreement, in the reasonable judgment
of Title Company, to enable Title Company to comply herewith and to enable any
title insurance policy provided for herein to be issued. Title Company is
authorized to pay, from any funds held by it for Buyer's or Seller's respective
credit all amounts necessary to procure the delivery of such documents and to
pay, on behalf of Buyer and Seller, all charges and obligations payable by them,
respectively. Seller will pay all charges payable by it to Title Company. Title
Company is authorized, in the event any conflicting demand is made upon it
concerning these instructions or the escrow, at its election, to hold any
documents and/or funds deposited hereunder until an action shall be brought in a
court of competent jurisdiction to determine the rights of Seller and Buyer or
to interplead such documents and/or funds in an action brought in any such
court. Deposit by Title Company of such documents and funds, after deducting
therefrom its reasonable charges and its reasonable 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
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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 Seller to enter into this
Agreement and consummate the transactions contemplated herein, and Seller has
relied, and will continue to rely, upon such representations and warranties from
and after the execution of this Agreement and the Closing. Buyer represents and
warrants to Seller as follows:
A. Organization of Buyer. Buyer has been duly formed, is validly
existing and has taken all necessary action to authorize the execution,
delivery and performance by Buyer of this Agreement.
B. Authority of Buyer. The person who has executed this Agreement
on behalf of Buyer is duly authorized so to do.
C. Enforceability. Upon execution by Buyer, this Agreement shall
constitute the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
All representations and warranties of Buyer made in this Agreement shall
survive the Closing.
8. Representations and Warranties of Seller. The representations and
warranties of Seller contained in this Section are being made as of the date of
this Agreement and the Closing Date to induce Buyer to enter into this Agreement
and consummate the transactions contemplated herein, and Buyer has relied, and
will continue to rely, upon such representations and warranties from and after
the execution of this Agreement and the Closing. Seller represents and warrants
to Buyer as follows:
A. Information and Financial Statements. Seller has delivered to
Buyer financial statements (either audited financial statements or, if
Seller does not have audited financial statements, certified financial
statements) and certain other information concerning itself 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. Seller understands
that Buyer is relying upon such financial statements and information and
Seller represents 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.
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B. Organization and Authority. (i) Each of Seller and Guarantor is a
duly organized or formed corporation, validly existing and in good standing
under the laws of its state of incorporation or formation, and qualified to
do business in any jurisdiction where such qualification is required. All
necessary corporate action has been taken to authorize the execution,
delivery and performance of this Agreement and of the other documents,
instruments and agreements provided for herein.
(ii) The person who has executed this Agreement on behalf of Seller is
duly authorized so to do.
C. Enforceability of Documents. Upon execution by Seller 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 Seller and
Guarantor, as applicable, enforceable against Seller and Guarantor, as
applicable, 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 Seller, 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 Seller, Guarantor or any of the Properties.
E. Absence of Breaches or Defaults. Neither Seller nor Guarantor is
in default under any other document, instrument or agreement to which
Seller or Guarantor is a party or by which Seller, Guarantor any of the
Properties or any of Seller's or Guarantor's property is subject or bound,
which breach or default might reasonably result in any material adverse
change in the contemplated business, condition, worth or operations of
Seller, Guarantor or any of the Properties. The authorization, execution,
delivery and performance of this Agreement and the documents, instruments
and agreements provided for herein will not result in any breach or default
under any other document, instrument or agreement to which Seller or
Guarantor is a party or by which Seller, Guarantor, any of the Properties
or any of Seller's or Guarantor's property is subject or bound. 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.
F. Utilities. At the Closing Date, each of the Properties will be
served by adequate 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. Seller intends 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 material
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compliance with all applicable zoning requirements and the current officers
of Seller have not received any written notice that the use of any of the
Properties as a Permitted Facility constitutes a 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 the Americans With Disabilities Act of 1990, and all
policies or rules of common law, in each case, as amended, and any judicial
or administrative interpretation thereof, including any judicial order,
consent, decree or judgment applicable to Seller.
H. Area Development. No condemnation or eminent domain proceedings
affecting any of the Properties have been commenced or, to the knowledge of
Seller's officers, are contemplated. To the knowledge of Seller's
officers, the area where any of the Properties is located has not been
declared blighted by any Governmental Authority.
I. Licenses and Permits; Access. Prior to the Closing Date, Seller
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 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. Seller's officers are fully familiar with the
present use of each of the Properties. To the knowledge of the officers of
Seller, 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 material
compliance with all applicable Environmental Laws, and no Release or
Threatened Release has occurred at or on any of the Properties, except such
as have been remedied in compliance with applicable Environmental Laws. To
the knowledge of Seller's officers, 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 knowledge of Seller's officers, 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
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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 knowledge of Seller's officers,
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 reasonably be expected to give rise to any such
action, nor has Seller (a) received any notice (and the officers of Seller
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; (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.
The information and disclosures in the Questionnaires are 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. Fee title to each of the Properties is
vested in Seller, except that Seller is vested with a leasehold interest
with respect to the Patio Portion. Upon Closing, fee 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, except that, Buyer shall be vested with a
leasehold interest in the Patio Portion.
M. No Other Agreements and Options. Neither Seller, Guarantor nor,
to the best of Seller's 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 Seller from completing or impair
Seller's 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 before the date such
payment becomes delinquent; no work has been performed or is in progress
nor have materials been supplied to any of the Properties or agreements
entered
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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 before the date the same becomes delinquent; Seller shall be
responsible for any and all claims for mechanics' liens and accounts
payable that have arisen or may subsequently arise due to agreements
entered into for and/or any work performed on, or materials supplied to any
of the Properties prior to the Closing Date; Seller shall and does hereby
agree to defend, indemnify and forever hold Buyer and Buyer's designees
harmless for, from and against any and all mechanics' lien claims, accounts
payable or other commitments relating to any of the Properties due to
contracts or arrangements initiated by Seller or its agents.
O. No Reliance. Seller acknowledges that Buyer did not prepare or
assist in the preparation of any of the projected financial information
used by Seller in analyzing the economic viability and feasibility of the
transaction contemplated by this Agreement, and that Seller has not relied
on any report or statement by Buyer in entering into this Agreement.
Furthermore, Seller acknowledges that it has not relied upon, nor may it
hereafter rely upon, the analysis undertaken by Buyer in determining the
Purchase Price, and such analysis will not be made available to Seller.
P. Purchase Price. The Purchase Price is the fair market value of
the Properties and was agreed to by Seller and Buyer on that basis.
Q. Patio Lease. Seller has delivered to Buyer a certified true,
correct and complete copy of the Patio Lease. The Patio Lease has not been
modified, amended, supplemented or otherwise revised. The Patio Lease is
the only lease or agreement between the Patio Lessor and Seller with
respect to the Patio Portion. The Patio Lease is in full force and effect.
Seller has not assigned, transferred, mortgaged, hypothecated or otherwise
encumbered the Patio Lease or any interest therein, and Seller has not
received any notice that the Patio Lessor has made any assignment, pledge
or hypothecation of all or any part of its interest in the Patio Lease.
Seller has not received any notice of default from the Patio Lessor which
has not been cured or given any notice of default to the Patio Lessor which
has not been cured. No event has occurred and no condition exists which,
with the giving of notice or the lapse of time or both, would constitute a
default by the Patio Lessor or Seller under the Patio Lease.
All representations and warranties of Seller made in this Section 8 shall
survive the Closing. Seller acknowledges and agrees that Environmental Insurer
may rely on the environmental representations and warranties set forth in the
preceding subsection K, that Environmental Insurer is an intended third-party
beneficiary of such representations and warranties and that Environmental
Insurer shall have all rights and remedies available at law or in equity as a
result of a breach of such representations and warranties, including, to the
extent applicable, the right of subrogation.
9. Covenant and Agreements of Seller. Seller shall, at all reasonable
times, upon reasonable advance notice from Buyer (i) provide Buyer and Buyer's
officers, employees, agents, advisors, attorneys, accountants, architects, and
engineers with access to each of the Properties,
12
all drawings, plans, and specifications for each of the Properties in possession
of Seller, all engineering reports relating to each of the Properties in the
possession of Seller, 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 Seller's
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 Seller. After the execution and delivery of the deeds described
in Section 11.A, Seller will have no legal or equitable interest or any other
claim or interest in any of the Properties other than as set forth in the Lease.
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 Seller may
be allocated or otherwise divided by Seller among the Properties.
Notwithstanding the existence of the Lease, neither party 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
mortgage, trust, financing device or arrangement, security interest or the like,
if, and to the extent that, any challenge occurs.
B. This Agreement is a contract to extend a financial accommodation (as
such term is used in the Code) for the benefit of Seller and may not be assumed
over the objection of Buyer in the event Seller becomes a debtor or debtor in
possession in any bankruptcy proceeding. The financial accommodation made
through this Agreement is Buyer's acquisition of all of the Properties for the
purpose of leasing all of the Properties to Seller 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:
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A. Title. Seller shall convey each of the Properties (other than
the Patio Portion) to Buyer by a special warranty deed (collectively, the
"Deeds"), free of all liens, encumbrances, restrictions, encroachments and
easements, except the Permitted Exceptions. Seller shall transfer a
leasehold interest in the Patio Portion to Buyer pursuant to an assignment
of lease in form and substance reasonably satisfactory to Buyer (the "Patio
Lease Assignment"), 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.
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 Seller (other than with respect to the Patio Portion, for
which a good and marketable leasehold interest shall be shown), committing
to insure Buyer's fee simple ownership in each of the Properties (other
than with respect to the Patio Portion, for which Title Company shall
commit to insure Buyer's leasehold interest therein) 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. Seller 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, Seller shall
provide Buyer with evidence of flood insurance maintained on such
Properties in amounts and on terms and conditions reasonably satisfactory
to Buyer.
E. Environmental. Buyer shall have received the Environmental
Policies with respect to the Properties.
14
F. Zoning. If requested by Buyer, Seller 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, conforming use under applicable zoning requirements.
In the event that the use of any of the Properties constitutes a legal,
nonconforming use under applicable zoning requirements, Seller shall have
provided Buyer with evidence of law and ordinance insurance reasonably
satisfactory to Buyer covering both the increase cost of construction and
dimunitions in value in the event that, after a casualty, the improvements
at any of the Properties cannot be rebuilt to the same condition or for the
same use which existed prior to such casualty because of applicable zoning
requirements.
G. 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.
H. Compliance With Representations, Warranties and Covenants. (i)
All obligations of Seller under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or condition
shall exist which would, upon the Closing Date, or, upon the giving of
notice and/or passage of time, constitute a breach or default by Seller
hereunder or under the Lease or any other agreement between or among Buyer
or Seller pertaining to the subject matter hereof, and no event shall have
occurred or condition shall exist or information shall have been disclosed
by Seller or discovered by Buyer which has had or would have a material
adverse effect on any of the Properties, Seller 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 Seller
under this Agreement are true, correct and complete as of the Closing Date.
I. Proof of Insurance. Seller shall have delivered to Buyer copies
of insurance policies or other evidence of insurance reasonably
satisfactory to Buyer, showing that all insurance required by the Lease and
providing coverage and limits reasonably satisfactory to Buyer is in full
force and effect.
J. Opinions of Counsel to Seller and Guarantor. Seller shall have
caused Counsel to prepare and deliver opinions in form and substance
reasonably satisfactory to Buyer and its counsel.
K. Guaranty. Seller shall have caused Guarantor to execute and
deliver the Guaranty.
15
L. 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.
M. Patio Lease. The Patio Lease shall be in full force and effect
and Seller shall be entitled to occupy the Patio Portion.
N. Put Agreement and Letter of Credit. Seller shall have executed
and delivered the Put Agreement and shall have delivered the Letter of
Credit.
O. Parking Lease Estoppel. Seller shall have delivered an estoppel
certificate from the City of Portland in a form reasonably acceptable to
Buyer with respect to the parking lease between the City of Portland and
the Seller relating to the Property located at 0000 X.X. Xxxxxxxxxxx,
Xxxxxxxx, Xxxxxx.
P. Closing Documents. On or prior to the Closing Date, Buyer and/or
Seller, as may be appropriate, shall execute and deliver or cause to be
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:
(i) Deeds;
(ii) Lease;
(iii) Memorandum;
(iv) Guaranty;
(v) Proof of Insurance;
(vi) Opinions of Counsel to Seller and Guarantor;
(vii) Non-Foreign Seller Certificate;
(viii) UCC-1 Financing Statements;
(ix) Acknowledgement;
(x) Put Agreement;
(x) Patio Lease Assignment; and
(xi) Closing settlement statement prepared by Title Company.
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 Seller (each, an "Event of Default"):
(i) If any representation or warranty of Seller or Guarantor set
forth in any of the Sale-Leaseback Documents is false in any material
respect or if Seller or Guarantor renders any statement or account which is
false in any material respect;
16
(ii) If Seller fails to keep or perform any of the terms or
provisions of this Agreement;
(iii) If 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
(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 (other than seeking
punitive, consequential or indirect damages), including without limitation any
one or more of the following:
(i) To terminate this Agreement by giving written notice to Seller
in which case neither party shall have any further obligation or liability,
except such liabilities as Seller may have for such breach or default;
(ii) To proceed with the Closing and direct Title Company to apply
such portion of the Purchase Price as Buyer may deem reasonably necessary
to cure any such breach or default;
(iii) To bring an action for damages (other than punitive,
consequential or indirect damages) against Seller, 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 Seller
were true and Seller had complied with all of its obligations;
(iv) To bring an action to require Seller specifically to perform
its obligations hereunder; and/or
(v) To recover from Seller all reasonable 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.
13. Assignments. A. From and after the Closing, Buyer may assign in whole
or in part its rights under this Agreement. In the event of any unconditional
assignment of Buyer's
17
entire right and interest hereunder and provided Buyer's assignee shall have
assumed in writing all of the duties and obligations of Buyer hereunder, Buyer
shall automatically be relieved, from and after the date of such assignment, of
liability for the performance of any obligation of Buyer contained herein.
B. Seller shall not, without the prior written consent of Buyer, which
consent may be withheld in Buyer's sole discretion, sell, assign, transfer,
mortgage, convey, encumber or grant any easements or other rights or interests
of any kind in any of the Properties, any of Seller's rights under this
Agreement or any interest in Seller, whether voluntarily, involuntarily or by
operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise, except, subsequent to the Closing, as
expressly permitted by the Lease.
14. Indemnity. Seller agrees to indemnify, protect, hold harmless
and defend Buyer, Lender and their respective directors, officers, shareholders,
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,
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 Seller's failure to act in respect of
matters which are the obligation of Seller under the Lease) arising as the
result of an Environmental Condition and/or a breach of any of the
representations, warranties, covenants, agreements or obligations of Seller set
forth in this Agreement. Without limiting the generality of the foregoing, such
indemnity shall include, without limitation, any damages reasonably 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. Remainderman. Notwithstanding anything to the contrary contained
herein, Seller acknowledges that Buyer may only obtain title to an estate for
years in each of the Properties, and that Buyer may arrange for a remainderman
("Remainderman") to obtain title to the remainder of the estate of the
Properties (the "Remainder Interest"). Seller agrees to cooperate in such
event, which cooperation shall include, without limitation (1) the granting of
deeds for the estate for years in each of the Properties to Buyer and separate
deeds for the Remainder Interest to the Remainderman (or its designee), (2) the
execution of a tripartite agreement among Seller, Buyer and the Remainderman
relating to, inter alia, the extension terms under the Lease, (3) delivering
appropriate title insurance policies to the Remainderman, and (4) delivery of
such other documents as may be reasonably required. Seller acknowledges that
Remainderman is an approved assignee of this Agreement to the extent of the
Remainder Interest.
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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 or refusal of the intended recipient to accept
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:
If to Seller: Chart House, Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to: Seyfarth Xxxx
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Buyer: CH Restaurant Property, LLC
c/o U.S. Realty Advisors, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
19
With a copy to: Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
B. Risk of Loss. As between Buyer and Seller, Seller shall be
responsible for the risk of loss, damage or destruction of 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 Seller
agree to execute such amendments to this Agreement as may be reasonably
required by Buyer to evidence any such termination.
D. Real Estate Commission. Buyer and Seller represent and warrant to
each other that they have dealt with no real estate broker, agent, finder
or other intermediary in connection with the transactions contemplated by
this Agreement. Buyer and Seller 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 Seller with respect to any of the terms,
covenants and conditions of this Agreement or the other Sale-Leaseback
Documents, as applicable, (ii) Seller waives all claims, demands and causes
of action against the trustees, members, partners, shareholders, officers,
directors, employees and agents of Buyer and its successors or assigns in
the event of any breach by Buyer of any of the terms, covenants
20
and conditions of this Agreement or the other Sale-Leaseback Documents, as
applicable, to be performed by Buyer, and (iii) Seller shall look solely to
the Properties for the satisfaction of each and every remedy of Seller in
the event of any breach by Buyer of any of the terms, covenants and
conditions of this Agreement or the other Sale-Leaseback Documents, as
applicable, to be performed by Buyer, or any other matter in connection
with this Agreement, the other Sale-Leaseback Documents or any of the
Properties, such exculpation of liability to be absolute and without any
exception whatsoever.
H. Severability. The provisions of this Agreement shall be deemed
severable. If any part of this Agreement shall be held unenforceable, the
remainder shall 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 impartial manner
without regard to such factors as the party which prepared the instrument,
the relative bargaining powers of the parties or the domicile of any party.
Seller and Buyer were each represented by legal counsel competent in
advising them of their obligations and liabilities hereunder.
J. Other Documents. Each of the parties agrees to sign such other
and further documents as may be necessary or reasonably requested by the
other party in order to carry out the intentions expressed in this
Agreement.
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 its reasonable attorneys'
fees and other costs in addition to any other relief to which it may be
entitled.
L. Entire Agreement. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations, warranties
or agreements, written or oral, between Seller and Buyer with respect to
the subject matter of this Agreement. Notwithstanding anything in this
Agreement to the contrary, upon the execution and delivery of this
Agreement by Seller and Buyer, the Commitment shall be deemed null and void
and of no further force and effect and the terms and conditions of this
Agreement shall control notwithstanding that such terms and conditions are
inconsistent with or vary from those set forth in the Commitment.
M. Recording. This Agreement may not be recorded by either party.
21
N. Forum Selection; Jurisdiction; Venue; Choice of Law. Seller
acknowledges that this Agreement was partially negotiated in the State of
Arizona, the Agreement was executed and delivered by Seller and Buyer in
the State of Arizona, all payments under the Lease will be delivered in the
State of Arizona (unless otherwise directed by Buyer or its successors) and
there are substantial contacts between the parties and the transactions
contemplated herein and the State of Arizona. For purposes of any action or
proceeding arising out of this Agreement, the parties hereto hereby
expressly submit to the jurisdiction of all federal and state courts
located in the State of Arizona and Seller consents that it may be served
with any process or paper by registered mail or by personal service within
or without the State of Arizona in accordance with applicable law.
Furthermore, Seller waives and agrees not to assert in any such action,
suit or proceeding that it is 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. It is the intent of the parties hereto that all provisions of
this Agreement shall be governed by and construed under the laws of the
State of Arizona. To the extent that a court of competent jurisdiction
finds Arizona law inapplicable with respect to any provisions hereof, then,
as to those provisions only, the law of the states in which the Properties
are located, as applicable, shall be deemed to apply. Nothing in this
Section shall limit or restrict the right of Buyer to commence any
proceeding in the federal or state courts located in the states in which
the Properties are located, as applicable, to the extent Buyer deems such
proceeding necessary or advisable to exercise remedies available under this
Agreement.
O. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
P. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of Seller and Buyer and their respective 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
Seller and Buyer set forth in this Agreement (including, without
limitation, the provisions of Sections 7, 8 and 14) shall survive the
Closing.
R. Waiver of Jury Trial and Punitive, Consequential and Indirect
Damages. BUYER AND SELLER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY AND
ALL ISSUES PRESENTED IN ANY 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
22
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, BUYER AND SELLER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO SEEK PUNITIVE,
CONSEQUENTIAL AND INDIRECT DAMAGES FROM THE OTHER OR ANY OF THE OTHER'S
AFFILIATES, OFFICERS, DIRECTORS, MEMBERS AND EMPLOYEES OR THEIR SUCCESSORS
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER OR
ANY OF THE OTHER'S AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES OR
THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO,
EXCEPT THAT SUCH WAIVER ON THE PART OF BUYER SHALL NOT BE DEEMED TO LIMIT,
REDUCE OR PRECLUDE IN ANY WAY BUYER'S REMEDIES PURSUANT TO SECTION 23 OF
THE LEASE. THE RECIPROCAL WAIVERS BY BUYER AND SELLER OF ANY RIGHT EITHER
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL AND INDIRECT DAMAGES HAS BEEN
NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR
BARGAIN.
S. Reliance By Lender. Seller acknowledges and agrees 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.
23
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement as of
the date first above written.
BUYER:
CH RESTAURANT PROPERTY, LLC,
a Delaware limited liability company
By: CH Restaurant Equity, LLC,
a Delaware limited liability company,
its member
By ________________________________________
Xxxxx Xxxxxxx
Its Vice President
SELLER:
CHART HOUSE, INC.,
a Delaware corporation
By ________________________________________
Xxxxxxx Xxxxxxxx
Its Executive Vice President and Chief
Financial Officer
EXHIBIT A
PROPERTIES/ALLOCATION OF PURCHASE PRICE
EXHIBIT A-1
LEGAL DESCRIPTIONS OF PROPERTIES
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement as of
the date first above written.
BUYER:
CH RESTAURANT PROPERTY, LLC,
a Delaware limited liability company
By: CH Restaurant Equity, LLC,
a Delaware limited liability company,
its member
By /s/ Xxxxx Xxxxxxx
-----------------------------
Xxxxx Xxxxxxx
Its Vice President
SELLER:
CHART HOUSE, INC.,
a Delaware corporation
By /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
Its Executive Vice President and Chief
Financial Officer
