EXHIBIT 2.1
SALE-LEASEBACK AGREEMENT
THIS SALE-LEASEBACK AGREEMENT (this "Agreement") is made as of May
11, 2001, by and between ZUNO PROPERTY LLC, a Delaware limited liability
company ("Buyer"), whose address is c/o U.S. Realty Advisors, LLC, 1370
Avenue of the Americas, New York, New York 10019, and FRANKLIN MILLS
PIZZERIA, INC., a Pennsylvania corporation, UNO RESTAURANTS, INC., a
Massachusetts corporation, and SAXET CORPORATION, a Delaware corporation
(individually, a "Seller" and collectively, the "Sellers"), whose address is
100 Charles Park Road, West Roxbury, Massachusetts 02132.
PRELIMINARY STATEMENT:
Unless otherwise expressly provided herein, all defined terms used
in this Agreement shall have the meanings set forth in Section 1. Sellers own
or have an option or right to purchase the Properties. Buyer desires to
purchase the Properties pursuant to this Agreement and lease the Properties
to SL Properties, Inc., a Massachusetts corporation ("SL Properties")
pursuant to the Lease.
AGREEMENT:
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the following
meanings for all purposes of this Agreement:
"ACKNOWLEDGEMENT" means the Acknowledgement of Master Lease
Assignment and Subordination, Nondisturbance and Attornment Agreement dated
as of the date of this Agreement among Buyer, SL Properties, Lender and
Remainderman. 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 February 21,
2001, among U.S. Realty Advisors, LLC and Guarantor, and any amendments or
supplements thereto.
"COUNSEL" means one or more legal counsel to Sellers and Guarantor
licensed in the states in which (i) the Properties are located, (ii) Sellers
and Guarantor are incorporated or formed and (iii) Sellers and Guarantor
maintain their chief executive offices, as selected by Sellers and Guarantor
and approved by Buyer.
"DE MINIMIS AMOUNTS" shall mean, with respect to any given level of
Hazardous Materials, that level or quantity of Hazardous Materials in any
form or combination of forms, the use, storage or release of which does not
constitute a violation of, or require regulation or remediation under, any
Environmental Laws and is customarily employed in the ordinary course of, or
associated with, similar businesses located in the states in which the
Properties are located.
"ENVIRONMENTAL CONDITION" means any condition with respect to soil,
surface waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or surrounding
any of the Properties, whether or not yet discovered, which could or does
result in any damage, loss, cost, expense, claim, demand, order or liability
to or against Sellers, Buyer or Lender by any third party (including, without
limitation, any Governmental Authority), including, without limitation, any
condition resulting from the operation of Seller's business and/or the
operation of the business of any other property owner or operator in the
vicinity of any of the Properties and/or any activity or operation formerly
conducted by any person or entity on or off any of the Properties.
"ENVIRONMENTAL 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 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
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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 by Guarantor to cover certain
costs and expenses associated with the transactions contemplated hereby equal
to $251,140.00, 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.
"GUARANTOR" means Uno Restaurant Corporation, a Delaware corporation.
"GUARANTY" means that certain Unconditional Guaranty of Payment and
Performance dated as of the Closing Date to be executed by Guarantor for the
benefit of Buyer with respect to the Lease, as the same may be amended from
time to time.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states in which the
Properties are located or any political subdivision thereof.
"HAZARDOUS MATERIALS" means (i) any toxic substance or hazardous
waste, substance, solid waste or related material, or any pollutant or
contaminant; (ii) radon gas, asbestos in any form which is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
which contains dielectric fluid containing levels of polychlorinated
biphenyls in excess of federal, state or local safety guidelines, whichever
are more stringent, or any petroleum product; (iii) any substance, gas,
material or chemical which is or may be defined as or included in the
definition of "hazardous substances," "toxic substances," "hazardous
materials," "hazardous wastes," "regulated substances" or words of similar
import under any Environmental Laws; and (iv) any other chemical, material,
gas or substance the exposure to or release of which is or may be prohibited,
limited or regulated by any Governmental Authority that asserts or may assert
jurisdiction over any of the Properties or the operations or activity at any
of the Properties, or any chemical, material, gas or substance that does or
may pose a hazard to the health and/or safety of the occupants of any of the
Properties or the owners and/or occupants of property adjacent to or
surrounding any of the Properties.
"INDEMNIFIED PARTIES" has the meaning set forth in Section 14.
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"LEASE" means the master lease agreement dated as of the date of
this Agreement to be executed by Buyer, as lessor, and SL Properties, as
lessee, with respect to the Properties, as the same may be amended from time
to time.
"LENDER" means FFCA Funding Corporation, a Delaware corporation.
"LOAN AGREEMENT" means the Loan Agreement dated as of the date of
this Agreement in effect between Buyer and Lender, as such agreement may be
amended from time to time and any and all replacements or substitutions
thereof.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
net worth or operation of Sellers, Guarantor or any of the Properties,
including, without limitation, the operation of any of the Properties as a
Permitted Facility and/or the value of any of the Properties, or (ii)
Sellers' or Guarantor's ability to perform their obligations under the
Sale-Leaseback Documents.
"MEMORANDUM" means the memorandum of master lease dated as of the
date of this Agreement to be executed by Buyer, as lessor, and SL Properties,
as lessee, with respect to the Properties. A duplicate original Memorandum
will be executed and recorded in the applicable real property records for
each Property. Each Memorandum will contain exhibits with the addresses and
store identification numbers for all of the Properties and the legal
description for the applicable Property.
"NON-FOREIGN SELLER CERTIFICATE" means the non-foreign seller
certificate to be executed and delivered by Sellers to Buyer prior to or on
the Closing Date.
"OTHER AGREEMENTS" means, collectively, all agreements and
instruments now or hereafter entered into between, among or by (1) any of the
Seller Entities, and, or for the benefit of (as intended beneficiary or third
party beneficiary), (2) Buyer; provided, however, the term Other Agreements
shall not include this Agreement, the other Sale-Leaseback Documents,
agreements between and among institutional lenders and one or more of the
Seller Entities, and the Security Deposit Letter of Credit and the FCCR
Letter of Credit (both as defined in the 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.
"PERMITTED FACILITY" means a Pizzeria Uno Chicago Bar & Grill
restaurant, other nationally or regionally recognized concepts owned by
Guarantor or an Affiliate of Guarantor or other restaurant concept of a
nationally or regionally recognized owner/operator; provided, however, that
at least nine (9) of the Properties shall be operated as Pizzeria Uno Chicago
Bar & Grill restaurants or another nationally or regionally recognized
restaurant concept operated by Guarantor and approved by Buyer and Lender.
"PERMITTED SUBLEASES" means, collectively, the Master Subleases
dated as of the date of this Agreement to be executed by SL Properties, as
lessor and the Permitted Sublessees, as lessees, with respect to the
Properties.
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"PERMITTED SUBLESSEES" means Franklin Mills Pizzeria, Inc., a
Pennsylvania corporation, Uno Restaurants, Inc., a Massachusetts corporation,
Uno of Smithtown, Inc., a New York corporation, Uno of Smoketown, Inc., a
Virginia corporation, Uno of Gurnee Mills, Inc., an Illinois corporation,
Plizzettas of Burlington, Inc., a Vermont corporation, and Uno of Tennessee,
Inc., a Tennessee corporation, or their successors or assigns.
"PERSONALTY" means all machinery, appliances, furniture, equipment,
trade fixtures and other personal property of Sellers (excluding inventory)
from time to time situated on or used in connection with the Properties;
provided, however, the term "Personalty" shall not include the HVAC, walk-in
coolers, walk-in freezers, supply fans, exhaust fans, air ducts, hoods,
vents, built-in sinks, built-in countertops, plumbing and electrical
fixtures, merchandise shelving, sign poles and lighting poles, all of which
items are intended to be fixtures as such term is used within the definition
of "Properties".
"PROPERTIES" means, collectively, the parcels of real estate
described by address, Buyer Number and Unit Number in EXHIBIT A attached
hereto and legally described in EXHIBIT A-1 attached hereto, all rights,
privileges and appurtenances associated therewith, and all buildings,
structures, fixtures and other improvements now or hereafter located on such
real estate (excluding Personalty and inventory).
"PURCHASE PRICE" means the amount specified in Section 3.
"QUESTIONNAIRES" means the environmental questionnaires completed by
Sellers with respect to each of the Properties and submitted to 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, except
for De Minimis Amounts.
"REMAINDERMAN" shall have the meaning set forth in Section 15.
"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
Permitted Subleases, the Guaranty, the Memorandum, the Acknowledgement and
all other documents executed in connection therewith or contemplated thereby.
"SELLER ENTITIES" means, collectively, Sellers and Guarantor and all
Affiliates of Sellers and Guarantor.
"SL PROPERTIES" shall have the meaning set forth in the Preliminary
Statement.
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"THREATENED RELEASE" means a substantial likelihood of a Release
which requires action pursuant to Environmental Law to prevent or mitigate
damage to the soil, surface waters, groundwaters, land, stream sediments,
surface or subsurface strata, ambient air or any other environmental medium
comprising or surrounding any of the Properties which may result from such
Release.
"TITLE COMPANY" means the title insurance company described in
Section 6.
"UCC-1 FINANCING STATEMENTS" means such UCC-1 Financing Statements
as Buyer shall require to be executed and delivered by Sellers with respect
to the transactions contemplated by this Agreement.
2. TRANSACTION. On the terms and subject to the conditions set forth
herein:
(i) Sellers shall sell, or cause to be conveyed, and Buyer
shall purchase all of the Properties;
(ii) Buyer shall lease all of the Properties to SL Properties
pursuant to the Lease; and
(iii) SL Properties shall sublease certain of the Properties
to the Permitted Sublessees pursuant to the Permitted Subleases.
The sale and purchase of all of the Properties pursuant to this
Agreement and the lease of all of the Properties to SL Properties pursuant to
the Lease and the sublease of certain of the Properties to the Sellers are
not severable and shall be considered a single integrated transaction.
3. PURCHASE PRICE. The aggregate purchase price for all of the
Properties shall be $25,140,000.00 (the "Purchase Price"). The Purchase Price
has been allocated among the Properties as set forth on EXHIBIT A attached
hereto. The Purchase Price shall be paid at the Closing in cash or its
equivalent subject to any prorations and adjustments required by this
Agreement. The Purchase Price shall be remitted at Closing to Sellers or at
Sellers' direction. In addition to payment of the Purchase Price, Buyer shall
be responsible to pay at Closing the following fees and costs: (i) any
underwriting, site assessment, valuation, processing and commitment fee
payable to Lender, (ii) any costs related to the procurement of residual
value insurance policies by Buyer, (iii) attorneys' fees of Lewis and Roca
LLP, counsel to Lender, (iv) attorneys' fees of Proskauer Rose LLP, counsel
to Buyer, and (v) Buyer's reasonable out-of-pocket costs.
4. EXPENSE DEPOSIT. At Closing, the Fee shall be applied to the
costs to be paid by Sellers as contemplated by Section 6 and the balance, if
any, shall be refunded to Sellers. In the event the transaction set forth in
this Agreement fails to close, the Fee shall be applied as contemplated by
the Commitment.
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 May 9, 2001, unless
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such extension shall be approved by Buyer in its sole discretion (the date on
which the Closing shall occur is referred to herein as the "Closing Date").
6. CLOSING. Buyer has ordered a title insurance commitment for each
of the Properties from 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 costs of
such transaction shall be borne by Sellers, including, without limitation,
the cost of title insurance and endorsements, the attorneys' fees of Sellers,
local counsel attorneys' fees of Buyer and Lender, the cost of the
Environmental Policies to be delivered pursuant to Section 11.E, the cost of
the surveys, stamp taxes, transfer fees and escrow and recording fees. All
real and personal property and other applicable taxes and assessments and
other charges relating to any of the Properties which are due and payable on
or prior to the Closing Date, as well as such taxes and assessments due and
payable subsequent to the Closing Date but which Title Company requires to be
paid at Closing as a condition to the issuance of the title insurance
policies described in Section 11.C, shall be paid by Sellers at or prior to
the Closing, and all other taxes and assessments shall be paid by SL
Properties 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.
Sellers and Buyer hereby employ Title Company to act as escrow agent
in connection with this transaction. Sellers and Buyer will deliver to Title
Company all documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in the
reasonable judgment of Title Company, to enable Title Company to comply
herewith and to enable any title insurance policy provided for herein to be
issued. Title Company is authorized to pay, from any funds held by it for
Buyer's or Seller's respective credit all amounts necessary to procure the
delivery of such documents and to pay, on behalf of Buyer and Sellers, all
charges and obligations payable by them, respectively. Sellers will pay all
charges payable by it to Title Company. Title Company is authorized, in the
event any conflicting demand is made upon it concerning these instructions or
the escrow, at its election, to hold any documents and/or funds deposited
hereunder until an action shall be brought in a court of competent
jurisdiction to determine the rights of Sellers and Buyer or to interplead
such documents and/or funds in an action brought in any such court. Deposit
by Title Company of such documents and funds, after deducting therefrom its
charges and its expenses and attorneys' fees incurred in connection with any
such court action, shall relieve Title Company of all further liability and
responsibility for such documents and funds. Title Company's receipt of this
Agreement and opening of an escrow pursuant to this Agreement shall be deemed
to constitute conclusive evidence of Title Company's agreement to be bound by
the terms and conditions of this Agreement pertaining to Title Company.
Disbursement of any funds shall be made by check, certified check or wire
transfer, as directed by Buyer. Title Company shall be under no obligation to
disburse any funds represented by check or draft, and no check or draft shall
be payment to Title Company in compliance with any of the requirements
hereof, until it is advised by the bank in which such check or draft is
deposited that such check or draft has been honored. Title Company is
authorized to act upon any statement furnished by the holder or payee, or a
collection agent for the holder or payee, of any lien on or charge or
assessment in connection with any of the Properties, concerning the amount of
such charge or assessment or the amount
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secured by such lien without liability or responsibility for the accuracy of
such statement. The employment of Title Company as escrow agent shall not
affect any rights of subrogation under the terms of any title insurance
policy issued pursuant to the provisions thereof.
7. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer contained in this Section are being made by Buyer as of
the date of this Agreement and the Closing Date to induce Sellers to enter
into this Agreement and consummate the transactions contemplated herein, and
Sellers have relied, and will continue to rely, upon such representations and
warranties from and after the execution of this Agreement and the Closing.
Buyer represents and warrants to Sellers as follows:
A. ORGANIZATION OF BUYER. Buyer has been duly formed, is
validly existing and has taken all necessary action to authorize the
execution, delivery and performance by Buyer of this Agreement.
B. AUTHORITY OF BUYER. The person who has executed this
Agreement on behalf of Buyer is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by Buyer, this Agreement
shall constitute the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms.
All representations and warranties of Buyer made in this Agreement
shall survive the Closing.
8. REPRESENTATIONS AND WARRANTIES OF SELLERS. The representations
and warranties of Sellers contained in this Section are being made as of the
date of this Agreement and the Closing Date to induce Buyer to enter into
this Agreement and consummate the transactions contemplated herein, and Buyer
has relied, and will continue to rely, upon such representations and
warranties from and after the execution of this Agreement and the Closing.
Sellers represent and warrant to Buyer as follows:
A. INFORMATION AND FINANCIAL STATEMENTS. Sellers have
delivered to Buyer financial statements (either audited financial
statements or, if Sellers do not have audited financial statements,
certified financial statements) and certain other information
concerning themselves and Guarantor, which financial statements and
other information are true, correct and complete in all material
respects; and no material adverse change has occurred with respect to
any such financial statements and other information provided to Buyer
since the date such financial statements and other information were
prepared or delivered to Buyer. Sellers understand that Buyer is
relying upon such financial statements and information and Sellers
represent that such reliance is reasonable. All such financial
statements were prepared in accordance with generally accepted
accounting principles consistently applied and accurately reflect, as
of the date of this Agreement and the Closing Date, the financial
condition of each individual or entity to which they pertain.
B. ORGANIZATION AND AUTHORITY. (i) Sellers and Guarantor are
duly organized or formed corporations, validly existing and in good
standing under the laws of their state of incorporation, and qualified
to do business in any jurisdiction where such qualification
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is required. All necessary corporate action has been taken to authorize
the execution, delivery and performance of this Agreement and of the
other documents, instruments and agreements provided for herein.
(ii) The person who has executed this Agreement on behalf of
Sellers is duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. Upon execution by Sellers and
Guarantor, this Agreement and the other documents, instruments and
agreements to be executed in connection with this Agreement, shall
constitute the legal, valid and binding obligations of Sellers and
Guarantor, enforceable against Sellers and Guarantor in accordance with
their respective terms.
D. LITIGATION. There are no suits, actions, proceedings or
investigations pending or, to the best of its knowledge, threatened
against or involving Sellers or Guarantor or any of the Properties
before any Governmental Authority which might reasonably result in any
material adverse change in the contemplated business, condition, worth
or operations of Sellers, Guarantor or any of the Properties.
E. ABSENCE OF BREACHES OR DEFAULTS. Neither Sellers nor
Guarantor are in default under any other document, instrument or
agreement to which Sellers or Guarantor are a party or by which
Sellers, Guarantor, any of the Properties or any of Sellers' or
Guarantor's property is subject or bound, except where such default
would not have a Material Adverse Effect. The authorization, execution,
delivery and performance of this Agreement and the documents,
instruments and agreements provided for herein will not result in any
breach or default under any other document, instrument or agreement to
which Sellers or Guarantor are a party or by which Sellers, Guarantor,
any of the Properties or any of Sellers' or Guarantor's property is
subject or bound, except where such breach or default would not have a
Material Adverse Effect. The authorization, execution, delivery and
performance of this Agreement and the documents, instruments and
agreements provided for herein will not violate any applicable law,
statute, regulation, rule, ordinance, code, rule or order, except where
such violation would not have a Material Adverse Effect.
F. UTILITIES. At the Closing Date, each of the Properties will
be served by ample public utilities to permit full utilization of each
of the Properties for their intended purposes and all utility
connection fees and use charges will have been paid in full.
G. INTENDED USE AND ZONING; COMPLIANCE WITH LAWS. Sellers
intend to use each of the Properties solely for the operation of a
Permitted Facility in accordance with the standards of operations then
in effect on a system-wide basis, and related ingress, egress and
parking, and for no other purposes. Each of the Properties is in
compliance with all applicable zoning requirements and the use of each
of the Properties as a Permitted Facility does not constitute an
unlawful nonconforming use under applicable zoning requirements. Each
of the Properties complies in all material respects with all applicable
statutes, regulations, rules, ordinances, codes, licenses, permits,
orders and approvals of any governmental agencies, departments,
commissions, bureaus, boards or
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instrumentalities of the United States, the states in which the
Properties are located and all political subdivisions thereof,
including, without limitation, all health, building, fire, safety
and other codes, ordinances and requirements, all applicable standards
of the National Board of Fire Underwriters and all policies or rules of
common law, in each case, as amended, and any judicial or
administrative interpretation thereof, including any judicial order,
consent, decree or judgment applicable to Sellers.
H. AREA DEVELOPMENT; WETLANDS. No condemnation or eminent
domain proceedings affecting any of the Properties have been commenced
or, to the best of Sellers' knowledge, are contemplated. To the best of
Sellers' knowledge, the area where any of the Properties is located has
not been declared blighted by any Governmental Authority. Each of the
Properties is not designated by any Governmental Authority as wetlands.
I. LICENSES AND PERMITS; ACCESS. Prior to the Closing Date,
Sellers shall have all required licenses and permits, both governmental
and private, to use and operate each of the Properties in the intended
manner. There are adequate rights of access to public roads and ways
available to each of the Properties to permit full utilization of each
of the Properties for its intended purpose and all such public roads
and ways have been completed and dedicated to public use.
J. CONDITION OF PROPERTIES. As of the Closing Date, each of
the Properties will be of good workmanship and materials, fully
equipped and operational, in good condition and repair, free from
structural defects, clean, orderly and sanitary, safe, well lit,
landscaped, decorated, attractive and well maintained.
K. ENVIRONMENTAL. Sellers are fully familiar with the present
use of each of the Properties, and, after due inquiry, Sellers have
become generally familiar with the prior uses of each of the
Properties. Except as set forth in the Questionnaires, to the best of
Sellers' knowledge, no Hazardous Materials have been used, handled,
manufactured, generated, produced, stored, treated, processed,
transferred or disposed of at or on any of the Properties, except in De
Minimis Amounts or in compliance with all applicable Environmental
Laws, and no Release or Threatened Release has occurred at or on any of
the Properties. To the best of Sellers' knowledge, the activities,
operations and business undertaken on, at or about each of the
Properties, including, but not limited to, any past or ongoing
alterations or improvements at each of the Properties, are and have
been at all times, in compliance with all Environmental Laws. To the
best of Sellers' knowledge, no further action is required to remedy any
Environmental Condition or violation of, or to be in compliance in all
material respects with, any Environmental Laws, and no lien has been
imposed on any of the Properties by any Governmental Authority in
connection with any Environmental Condition, the violation or
threatened violation of any Environmental Laws or the presence of any
Hazardous Materials on or off any of the Properties.
There is no pending or, to the best of Sellers' knowledge,
threatened litigation or proceeding before any Governmental Authority
in which any person or entity alleges the violation or threatened
violation of any Environmental Laws or the presence, Release,
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Threatened Release or placement on or at any of the Properties of any
Hazardous Materials, or of any facts which would give rise to any such
action, nor have Sellers (a) received any notice (and Sellers have no
actual knowledge) that any Governmental Authority or any employee or
agent thereof has determined, threatens to determine or requires an
investigation to determine that there has been a violation of any
Environmental Laws at, on or in connection with any of the Properties
or that there exists a presence, Release, Threatened Release or
placement of any Hazardous Materials on or at any of the Properties, or
the use, handling, manufacturing, generation, production, storage,
treatment, processing, transportation or disposal of any Hazardous
Materials at or on any of the Properties; (b) received any notice under
the citizen suit provision of any Environmental Law in connection with
any of the Properties or any facilities, operations or activities
conducted thereon, or any business conducted in connection therewith;
or (c) received any request for inspection, request for information,
notice, demand, administrative inquiry or any formal or informal
complaint or claim with respect to or in connection with the violation
or threatened violation of any Environmental Laws or existence of
Hazardous Materials relating to any of the Properties or any
facilities, operations or activities conducted thereon or any business
conducted in connection therewith.
The information and disclosures in the Questionnaires are, to
the best of Sellers' knowledge, true, correct and complete in all
material respects, Buyer and Environmental Insurer may rely on such
information and disclosures, and the person or persons executing the
Questionnaires were duly authorized to do so.
L. TITLE TO PROPERTIES. Title to each of the Properties is
vested in Sellers. Upon Closing, title to each of the Properties shall
be vested in Buyer and Remainderman, free and clear of all liens,
encumbrances, charges and security interests of any nature whatsoever,
except the Permitted Exceptions.
M. NO OTHER AGREEMENTS AND OPTIONS. Neither Sellers nor
Guarantor nor, to the best of Sellers' knowledge, any of the Properties
is subject to any commitment, obligation, or agreement, including,
without limitation, any right of first refusal, option to purchase or
lease granted to a third party, which could or would prevent Sellers
from completing or impair Sellers' ability to complete the sale of any
of the Properties under this Agreement or which would bind Buyer
subsequent to consummation of the transaction contemplated by this
Agreement.
N. NO MECHANICS' LIENS. There are no outstanding accounts
payable, mechanics' liens, or rights to claim a mechanics' lien in
favor of any materialman, laborer, or any other person or entity in
connection with labor or materials furnished to or performed on any
portion of any of the Properties that will not have been fully paid for
on or before the Closing Date; no work has been performed or is in
progress nor have materials been supplied to any of the Properties or
agreements entered into for work to be performed or materials to be
supplied to any of the Properties prior to the date hereof, which will
not have been fully paid for on or before the Closing Date or which
might provide the basis for the filing of such liens against any of the
Properties or any portion thereof; Sellers shall be responsible for any
and all claims for mechanics' liens and
11
accounts payable that have arisen or may subsequently arise due to
agreements entered into for and/or any work performed on, or materials
supplied to any of the Properties prior to the Closing Date; Sellers
have made no contract or arrangement of any kind the performance of
which by the other party thereto would give rise to a lien on any of
the Properties; and Sellers shall and does hereby agree to defend,
indemnify and forever hold Buyer and Buyer's designees harmless for,
from and against any and all such mechanics' lien claims, accounts
payable or other commitments relating to any of the Properties.
O. NO RELIANCE. Sellers acknowledge that Buyer did not prepare
or assist in the preparation of any of the projected financial
information used by Sellers in analyzing the economic viability and
feasibility of the transaction contemplated by this Agreement, and that
Sellers have not relied on any report or statement by Buyer in entering
into this Agreement. Furthermore, Sellers acknowledge that they have
not relied upon, nor may they hereafter rely upon, the analysis
undertaken by Buyer in determining the Purchase Price, and such
analysis will not be made available to Sellers.
P. PURCHASE PRICE. The Purchase Price is the fair market value
of the Properties and was agreed to by Sellers and Buyer solely on that
basis.
All representations and warranties of Sellers made in this Section 8
shall survive the Closing. Sellers acknowledge and agree 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 SELLERS. Prior to the Closing Date,
Sellers shall, at all reasonable times, upon reasonable advance notice from
Buyer (i) provide Buyer and Buyer's officers, employees, agents, advisors,
attorneys, accountants, architects, and engineers with access to each of the
Properties, all drawings, plans, and specifications for each of the
Properties in possession of Sellers, all engineering reports relating to each
of the Properties in the possession of Sellers, the files and correspondence
relating to each of the Properties, and the financial books and records,
including lists of delinquencies, relating to the ownership, operation, and
maintenance of each of the Properties, and (ii) allow such persons to make
such inspections, tests, copies, and verifications as Buyer considers
necessary. All such persons shall use reasonable efforts not to unduly
interfere with the conduct of Sellers' business.
10. TRANSACTION CHARACTERIZATION. A. It is the intent of the parties
that the conveyance of each of the Properties to Buyer be an absolute
conveyance in effect as well as form, and the instruments of conveyance to be
delivered at Closing are not intended to serve or operate as a mortgage,
equitable mortgage, deed of trust, security agreement, trust conveyance or
financing or trust arrangement of any kind, nor as a preference or fraudulent
conveyance against any creditors of Sellers. After the execution and delivery
of the deeds described in Section 11.A, Sellers will have no legal or
equitable interest or any other claim or interest in any of the Properties
other than as set forth in the Lease and Permitted Subleases. Furthermore,
the parties intend:
12
(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 SL Properties may be allocated or otherwise divided by SL
Properties among the Properties.
Notwithstanding the existence of the Lease, none of the parties
shall contest the validity, enforceability or characterization of the sale
and purchase of any of the Properties by Buyer pursuant to this Agreement as
an absolute conveyance, and both parties shall support the intent expressed
herein that the purchase of all of the Properties by Buyer pursuant to this
Agreement provides for an absolute conveyance and does not create a joint
venture, partnership, equitable mortgage, trust, financing device or
arrangement, security interest or the like, if, and to the extent that, any
challenge occurs.
B. This Agreement is a contract to extend a financial accommodation
(as such term is used in the Code) for the benefit of Sellers and may not be
assumed over the objection of Buyer in the event Sellers become a debtor or
debtor in possession in any bankruptcy proceeding. The financial
accommodation made through this Agreement is Buyer's acquisition of all of
the Properties for the purpose of leasing all of the Properties to SL
Properties pursuant to a true lease.
11. CONDITIONS OF CLOSING. The obligation of Buyer to consummate the
purchase of the Properties pursuant to this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
A. TITLE. Sellers shall convey each of the Properties to Buyer
and Remainderman by deeds containing covenants and warranties as are
customary in the applicable jurisdiction (collectively, the "Deeds"),
free of all liens, encumbrances, restrictions, encroachments and
easements, except the Permitted Exceptions.
B. CONDITION OF PROPERTIES. Buyer shall have inspected and
approved each of the Properties, and each of the Properties shall be in
good condition and repair, of good workmanship and materials, fully
equipped and operational, clean, orderly, sanitary, safe, well-lit,
landscaped, decorated, attractive and with a suitable layout, physical
plant, traffic pattern and location all as determined by Buyer in its
sole discretion.
C. EVIDENCE OF TITLE. Buyer shall have received a preliminary
title report and irrevocable commitment to insure title by means of an
ALTA extended coverage owner's policy of title insurance (or its
equivalent, in the event such form is not issued in the jurisdiction
where any of the Properties is located) issued by Title Company showing
good and marketable fee title in Sellers, committing to insure Buyer's
fee simple
13
ownership in each of the Properties subject only to Permitted
Exceptions and containing such endorsements as Buyer may reasonably
require.
D. SURVEY; FLOOD HAZARD. Buyer shall have received a current
ALTA survey of each of the Properties, the form and substance of which
shall be satisfactory to Buyer in its sole discretion. Sellers shall
have provided Buyer with evidence satisfactory to Buyer that the
location of each of the Properties is not within the 100-year flood
plain or identified as a Special Flood Hazard Area by the Federal
Emergency Management Agency, or if any of the Properties is in such a
Special Flood Hazard Area, Sellers shall provide Buyer with evidence of
flood insurance maintained on such Properties in amounts and on terms
and conditions satisfactory to Buyer.
E. ENVIRONMENTAL. Buyer shall have received the Environmental
Policies with respect to the Properties.
F. ZONING. If requested by Buyer, Sellers shall have provided
Buyer with evidence satisfactory to Buyer to confirm that each of the
Properties is properly zoned for its use as a Permitted Facility and
that such use constitutes a legal use under applicable zoning
requirements.
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 Sellers under this Agreement shall have been
fully performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date, or, upon the
giving of notice and/or passage of time, constitute a breach or default
by Sellers hereunder or under the Lease or any other agreement between
or among Buyer or Sellers pertaining to the subject matter hereof, and
no event shall have occurred or condition shall exist or information
shall have been disclosed by Sellers or discovered by Buyer which has
had or would have a material adverse effect on any of the Properties,
Sellers or Buyer's willingness to consummate the transaction
contemplated by this Agreement, as determined by Buyer in its sole and
absolute discretion.
(ii) Buyer shall have received such evidence satisfactory to
Buyer in its reasonable discretion that the representations and
warranties of Sellers under this Agreement are true, correct and
complete as of the Closing Date.
I. PROOF OF INSURANCE. Sellers shall have delivered to Buyer
copies of insurance policies, showing that all insurance required by
the Lease and providing coverage and limits satisfactory to Buyer is in
full force and effect.
J. OPINIONS OF COUNSEL TO SELLERS. Sellers shall have caused
Counsel to prepare and deliver opinions in form and substance
reasonably satisfactory to Buyer and its counsel.
14
K. 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.
L. GUARANTY. Sellers shall have caused Guarantor to execute
and deliver the Guaranty to Buyer.
M. PERMITTED SUBLEASES. SL Properties and the Permitted
Sublessees shall have executed and delivered the Permitted Subleases to
Buyer.
N. CLOSING DOCUMENTS. On or prior to the Closing Date, Buyer,
Sellers and/or Guarantor, as may be appropriate, shall execute and
deliver or cause to be executed and delivered to Title Company or
Buyer, as may be appropriate, all documents required to be delivered by
this Agreement, and such other documents, payments, instruments and
certificates, as Buyer may require in form acceptable to Buyer,
including, without limitation, the following:
(i) Deeds;
(ii) Lease and Permitted Subleases;
(iii) Memorandum;
(iv) Acknowledgement;
(v) Proof of Insurance;
(vi) Opinions of Counsel to Sellers and SL
Properties;
(vii) Non-Foreign Seller Certificate;
(viii) UCC-1 Financing Statements;
(ix) Closing settlement statement prepared by
Title Company; and
(x) Guaranty.
Upon fulfillment or waiver of all of the above conditions, Buyer shall
deposit funds necessary to close this transaction with the Title Company and
this transaction shall close in accordance with the terms and conditions of
this Agreement.
12. DEFAULT AND REMEDIES. A. Each of the following shall be deemed
an event of default by Sellers (each, an "Event of Default"):
(i) If any representation or warranty of Sellers set forth in
any of the Sale-Leaseback Documents is false in any material respect or
if Sellers render any statement or account which is false in any
material respect;
(ii) If any Seller fails to keep or perform any of the terms
or provisions of this Agreement;
(iii) If any Seller or Guarantor is or becomes insolvent
within the meaning of the Code, files or notifies Buyer that it intends
to file a petition under the Code, initiates a proceeding under any
similar law or statute relating to bankruptcy, insolvency,
reorganization, winding up or adjustment of debts (collectively, an
"Action"), becomes the subject of either a petition under the Code or
an Action which is not dissolved within 90 days after filing, or is not
generally paying its debts as the same become due;
15
(iv) If there is an "Event of Default" under the Lease or any
Permitted Sublease; or
(v) If there is an "Event of Default" or a breach or default,
after the passage of all applicable notice and cure or grace periods,
under any other Sale-Leaseback Document or any of the Other Agreements.
B. In the event of any Event of Default, Buyer shall be entitled to
exercise, at its option, concurrently, successively or in any combination,
all remedies available under the Lease or at law or in equity, including
without limitation any one or more of the following:
(i) To terminate this Agreement by giving written notice to
Sellers in which case neither party shall have any further obligation
or liability, except such liabilities as Sellers may have for such
breach or default;
(ii) To proceed with the Closing and direct Title Company to
apply such portion of the Purchase Price as Buyer may deem reasonably
necessary to cure any such breach or default;
(iii) To bring an action for damages against Sellers, which,
in the event Buyer proceeds to close, may include an amount equal to
the difference between the value of the Properties as conveyed to Buyer
and the value such Properties would have had if all representations and
warranties of Sellers were true and Sellers have complied with all of
their obligations;
(iv) To bring an action to require Sellers specifically to
perform their obligations hereunder; and/or
(v) To recover from Sellers all costs and expenses, including
reasonable attorneys' fees, paid or incurred by Buyer in connection
with the transaction contemplated by this Agreement and all costs and
expenses incurred or paid by Buyer as a result of such breach or
default.
The liabilities, obligations and duties of Sellers under this Agreement are
joint and several between and among the Sellers.
13. ASSIGNMENTS. A. Buyer may assign in whole or in part its rights
under this Agreement. In the event of any unconditional assignment of Buyer's
entire right and interest hereunder and provided Buyer's assignee shall have
assumed in writing all of the duties and obligations of Buyer hereunder,
Buyer shall automatically be relieved, from and after the date of such
assignment, of liability for the performance of any obligation of Buyer
contained herein.
B. Sellers shall not, without the prior written consent of Buyer,
which consent may be withheld in Buyer's sole discretion, sell, assign,
transfer, mortgage, convey, encumber or grant any easements or other rights
or interests of any kind in any of the Properties, any of Sellers' rights
under this Agreement or any interest in Sellers, whether voluntarily,
involuntarily or by
16
operation of law or otherwise, including, without limitation, by merger,
consolidation, dissolution or otherwise, except, subsequent to the Closing,
as expressly permitted by the Lease.
C. Notwithstanding anything herein to the contrary, upon any of the
Sellers assigning their interests as Sublessee under any Permitted Sublease
pursuant to and in accordance with Section 12 of their respective Permitted
Sublease, the assigning Seller shall be released and discharged from any
right, liability, obligation or duty arising under this Agreement before and
after the date of such assignment.
14. INDEMNITY. Sellers agree, jointly and severally, to indemnify,
protect, hold harmless and defend Buyer, Lender and their respective
directors, officers, shareholders, members, employees, successors, assigns,
agents, lenders, contractors, subcontractors, experts, licensees, affiliates,
lessees, mortgagees, trustees and invitees, as applicable (collectively, the
"Indemnified Parties"), for, from and against any and all losses, costs,
claims, liabilities, damages and expenses (collectively, "Losses")
(including, without limitation, Buyer's reasonable attorneys' fees and
consequential damages but excluding Losses suffered by an Indemnified Party
arising out of such Indemnified Party's gross negligence or willful
misconduct; provided, however, that the term "gross negligence" shall not
include gross negligence imputed as a matter of law to any of the Indemnified
Parties solely by reason of the Buyer's interest in any of the Properties or
Sellers' failure to act in respect of matters which are the obligation of SL
Properties under the Lease) arising as the result of an Environmental
Condition and/or a breach of any of the representations, warranties,
covenants, agreements or obligations of Sellers set forth in this Agreement.
Without limiting the generality of the foregoing, such indemnity shall
include, without limitation, any damages incurred with respect to any
engineering, governmental inspection and reasonable attorneys' fees and
expenses that the Indemnified Parties may incur by reason of any
Environmental Condition and/or any representation or warranty set forth in
Section 8.K being false, or by reason of any investigation or claim of any
Governmental Authority in connection therewith. The provisions of this
Section 14 shall survive the Closing.
15. REMAINDERMAN. Notwithstanding anything to the contrary contained
herein, Sellers acknowledge 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"). Sellers agree 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 SL Properties,
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. Sellers acknowledge that Remainderman is an approved assignee of
this Agreement to the extent of the Remainder Interest.
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
17
(iv) certified or registered mail, return receipt requested, and shall
be deemed to have been delivered upon (a) receipt, if hand delivered,
(b) transmission, if delivered by facsimile, (c) the next business day,
if delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and
addresses (or facsimile numbers, as applicable) specified below:
If to Sellers: c/o Uno Restaurant Corporation
100 Charles Park Road
West Roxbury, Massachusetts 02132
Attention: Robert M. Vincent
Telephone: (617) 218-5215
Telecopy: (617) 218-5375
With a copy to: Brown Rudick Freed & Gesmer
One Financial Center
Boston, Massachusetts 02111
Attention: Joel M. Reck, Esq.
Telephone: (617) 856-8558
Telecopy: (617) 856-8201
If to Buyer: Zuno Property, LLC
c/o U.S. Realty Advisors, LLC
1370 Avenue of the Americas
New York, NY 10019
Attention: Mr. David M. Ledy
Telephone: (212) 581-4540
Telecopy: (212) 581-4950
With a copy to: Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Attention: Kenneth S. Hilton, Esq.
Telephone: (212) 969-3000
Telecopy: (212) 969-2900
B. RISK OF LOSS. As between Buyer and Sellers, Sellers shall
be responsible for the risk of loss, damage or destruction of any of
the Properties or any part thereof prior to the Closing Date.
C. CONDEMNATION. In the event of a taking of all or any part
of any of the Properties prior to the Closing, Buyer at its sole option
shall have the right to either (i) receive the proceeds of any
condemnation award and, proceed to close this transaction or (ii)
terminate this Agreement with respect to any Property which is subject
to such taking. Buyer and Sellers agree to execute such amendments to
this Agreement as may be reasonably required by Buyer to evidence any
such termination.
18
D. REAL ESTATE COMMISSION. Buyer and Sellers represent and
warrant to each other that they have dealt with no real estate broker,
agent, finder or other intermediary in connection with the transactions
contemplated by this Agreement. Buyer and Sellers shall indemnify and
hold each other harmless for, from and against any costs, claims or
expenses, including attorneys' fees, arising out of the breach of their
respective representations and warranties contained within this
Section.
E. WAIVER AND AMENDMENT. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
or any other matter on any future occasion.
F. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
G. BUYER'S LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement, it is specifically understood and agreed,
such agreement being a primary consideration for the execution of this
Agreement by Buyer, that (i) there shall be absolutely no personal
liability on the part of Buyer, its successors or assigns and the
trustees, members, partners, shareholders, officers, directors,
employees and agents of Buyer and its successors and assigns, to
Sellers with respect to any of the terms, covenants and conditions of
this Agreement or the other Sale-Leaseback Documents, as applicable,
(ii) Sellers waive all claims, demands and causes of action against the
trustees, members, partners, shareholders, officers, directors,
employees and agents of Buyer and its successors or assigns in the
event of any breach by Buyer of any of the terms, covenants and
conditions of this Agreement or the other Sale-Leaseback Documents, as
applicable, to be performed by Buyer, and (iii) Sellers shall look
solely to the Properties for the satisfaction of each and every remedy
of Sellers in the event of any breach by Buyer of any of the terms,
covenants and conditions of this Agreement or the other Sale-Leaseback
Documents, as applicable, to be performed by Buyer, or any other matter
in connection with this Agreement, the other Sale-Leaseback Documents
or any of the Properties, such exculpation of liability to be absolute
and without any exception whatsoever.
H. SEVERABILITY. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to
give maximum legal effect to the intention of the parties as expressed
therein.
I. CONSTRUCTION GENERALLY. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and 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.
19
Sellers and Buyer were each represented by legal counsel competent in
advising them of their obligations and liabilities hereunder.
J. OTHER DOCUMENTS. Each of the parties agrees to sign such
other and further documents as may be necessary or reasonably requested
by the other party in order to carry out the intentions expressed in
this Agreement.
K. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover all of its attorneys'
fees and other costs in addition to any other relief to which it may be
entitled. References in this Agreement to Buyer's attorneys' fees
and/or costs shall mean both the fees and costs of independent counsel
retained by Buyer with respect to this transaction.
L. ENTIRE AGREEMENT. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between Sellers and Buyer
with respect to the subject matter of this Agreement. Notwithstanding
anything in this Agreement to the contrary, upon the execution and
delivery of this Agreement by Sellers 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. At the election of Buyer, this Agreement may be
recorded in the appropriate governmental office so as to impart
constructive notice of the terms and provisions hereof.
N. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW.
Sellers acknowledge that this Agreement was partially negotiated in the
State of Arizona, the Agreement was delivered by Sellers 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 Sellers
consent that they 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, Sellers waive and agree
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
20
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 Sellers and Buyer and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee
appointed from a private panel.
Q. SURVIVAL. Except for the conditions of Closing set forth in
Section 11, which shall be satisfied or waived as of the Closing Date,
all representations, warranties, agreements, obligations and
indemnities of Sellers and Buyer set forth in this Agreement
(including, without limitation, the provisions of Sections 7, 8 and 14)
shall survive the Closing.
R. WAIVER OF JURY TRIAL AND PUNITIVE, CONSEQUENTIAL, SPECIAL
AND INDIRECT DAMAGES. BUYER AND SELLERS HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, SELLERS AND BUYER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES
FROM EACH OTHER AND THEIR AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR
EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL ISSUES
PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY
ANY PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, MEMBERS OR EMPLOYEES
OR ANY OF ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN
OR RELATED HERETO. THE WAIVER BY EACH OF THE PARTIES OF ANY RIGHT THEY
MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL, SPECIAL AND INDIRECT DAMAGES
HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
S. RELIANCE BY LENDER. Sellers acknowledge and agree that
Lender may rely on all of the representations, warranties and covenants
set forth in this Agreement, that
21
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.
IN WITNESS WHEREOF, Sellers and Buyer have entered into this Agreement
as of the date first above written.
BUYER:
ZUNO PROPERTY LLC,
a Delaware limited liability company
By: Zuno Equity LLC, a Delaware
limited liability company, its member
By:/s/ Laurie A. Hawkes
--------------------
Laurie A. Hawkes
Vice President
SELLERS:
FRANKLIN MILLS PIZZERIA, INC., a
Pennsylvania corporation
By: :/s/ Robert M. Vincent
---------------------
Robert M. Vincent
Executive Vice President, Treasurer
and Assistant Secretary
UNO RESTAURANTS, INC., a Massachusetts
corporation
By:/s/ Robert M. Vincent
---------------------
Robert M. Vincent
Executive Vice President, Treasurer
and Assistant Secretary
22
SAXET CORPORATION, a Delaware
corporation
By: :/s/ Robert M. Vincent
---------------------
Robert M. Vincent
Executive Vice President, Treasurer
and Assistant Secretary
23
EXHIBIT 2.1
EXHIBIT A
PROPERTIES
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FFCA NO. STORE NO. ADDRESS CITY STATE PURCHASE PRICE
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8001-2438 830 280 Maine Mall Road South Portland ME $1,928,934.00
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8001-2439 222 574 Iyanough Road, Route 132 Hyannis MA $1,928,934.00
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8001-2440 841 786 Franklin Mills Circle Philadelphia PA $2,131,980.00
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8001-2441 712 2680 Prince William Parkway Woodbridge VA $2,333,503.00
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8001-2442 810 1330 Shelburne Road South Burlington VT $1,928,934.00
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8001-2443 768 6593 Grand Avenue Gurnee IL $1,928,934.00
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8001-2444 720 4470 Long Gate Center Ellicott City MD $2,182,741.00
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8001-2445 721 5449 Urbana Pike Frederick MD $2,182,741.00
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8001-2446 969 11633 University Boulevard Orlando FL $2,195,838.00
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8001-2447 843 205 E. Waterfront Drive Homestead PA $2,233,503.00
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8001-2448 851 743 Watkins Road Maryville TN $2,131,980.00
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8001-2449 324 300 Center Place Drive Rochester NY $2,131,980.00
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