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Asset and Stock Purchase Agreement
Asset and Stock Purchase Agreement (412K)
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ASSET AND STOCK PURCHASE AGREEMENT
BY AND AMONG
BUDGET GROUP, INC.
AND
CERTAIN OF ITS SUBSIDIARIES,
CENDANT CORPORATION
AND
CHEROKEE ACQUISITION CORPORATION
DATED AS OF AUGUST 22, 2002
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms.............................................................. 1
Section 1.2 Other Definitional and Interpretive Matters................................ 19
ARTICLE 2
PURCHASE AND SALE OF THE ACQUIRED ASSETS
Section 2.1 Purchase and Sale of Acquired Assets....................................... 20
Section 2.2 Consideration.............................................................. 20
Section 2.3 Acquired Assets............................................................ 20
Section 2.4 Excluded Assets............................................................ 25
Section 2.5 Assumed Liabilities........................................................ 26
Section 2.6 Excluded Liabilities....................................................... 27
Section 2.7 Closing.................................................................... 29
Section 2.8 Deliveries by Seller Parties............................................... 29
Section 2.9 Deliveries by Buyer........................................................ 30
Section 2.10 Cure Costs................................................................. 31
Section 2.11 Transition and Support Arrangements for Retained Business.................. 31
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES
Section 3.1 Organization and Qualification............................................. 32
Section 3.2 Capitalization of the Acquired Companies................................... 32
Section 3.3 Corporate Power and Authority.............................................. 33
Section 3.4 Conflicts; Consents and Approvals.......................................... 33
Section 3.5 Title to Property; Adequacy of Assets...................................... 34
Section 3.6 SEC Filings; Seller Financial Statements................................... 35
Section 3.7 Vehicles, Etc.............................................................. 37
Section 3.8 Absence of Changes......................................................... 38
Section 3.9 No Undisclosed Liabilities................................................. 38
Section 3.10 Accounts Receivable; Accounts Payable...................................... 39
Section 3.11 Affiliate Transactions..................................................... 40
Section 3.12 Compliance with Laws....................................................... 40
Section 3.13 Litigation................................................................. 40
Section 3.14 Corporate Locations; Permits; Etc.......................................... 41
Section 3.15 Contracts.................................................................. 41
Section 3.16 Real Estate................................................................ 46
Section 3.17 Airport Concessions........................................................ 47
Section 3.18 Employee; Employee Benefit Matters......................................... 48
Section 3.19 Labor Relations and Employment............................................. 51
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Section 3.20 Customers.................................................................. 52
Section 3.21 Environmental Matters...................................................... 52
Section 3.22 Intellectual Property...................................................... 53
Section 3.23 Taxes...................................................................... 55
Section 3.24 Compliance with Insurance Laws............................................. 57
Section 3.25 Insurance.................................................................. 58
Section 3.26 Books and Records.......................................................... 59
Section 3.27 Franchisee Matters......................................................... 59
Section 3.28 Vehicle Return Pursuant to Repurchase Programs; Vehicle Orders............. 60
Section 3.29 Disclosure................................................................. 60
Section 3.30 Brokers.................................................................... 61
Section 3.31 Use of Certain Funds....................................................... 61
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER
Section 4.1 Organization and Qualification............................................. 61
Section 4.2 Corporate Power and Authority; Authorization............................... 61
Section 4.3 Conflicts; Consents and Approvals.......................................... 62
Section 4.4 Brokers.................................................................... 62
Section 4.5 Sufficiency of Funds....................................................... 63
ARTICLE 5
CERTAIN COVENANTS
Section 5.1 Conduct of Business........................................................ 63
Section 5.2 Access and Information..................................................... 71
Section 5.3 Efforts to Effect Transaction; Certain Filings............................. 73
Section 5.4 Bankruptcy Filings......................................................... 74
Section 5.5 Bidding Procedures......................................................... 75
Section 5.6 Intercompany Amounts; Other Agreements..................................... 76
Section 5.7 Updates of Schedules....................................................... 76
Section 5.8 Tax Returns; Tax Sharing Agreements........................................ 77
Section 5.9 Purchase Price Allocation.................................................. 77
Section 5.10 Transfer Taxes............................................................. 78
Section 5.11 Vehicle Return Pursuant to Repurchase Programs; Disposition of Vehicles.... 79
Section 5.12 Cooperation in Connection with Refinancing................................. 79
Section 5.13 Confidentiality............................................................ 79
Section 5.14 No Solicitation of Employees............................................... 80
Section 5.15 Certain Tax Reporting...................................................... 81
Section 5.16 SEC Reports................................................................ 81
ARTICLE 6
ADDITIONAL POST-CLOSING COVENANTS
Section 6.1 Benefit and Employment Matters............................................. 81
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Section 6.2 Books and Records; Personnel............................................... 84
Section 6.3 Section 338(h)(10) Elections............................................... 85
Section 6.4 Tax Cooperation............................................................ 86
Section 6.5 Use of Name................................................................ 86
Section 6.6 Remittance of Funds........................................................ 87
Section 6.7 Mail Received After the Closing............................................ 87
Section 6.8 Further Assurances......................................................... 87
ARTICLE 7
CONDITIONS PRECEDENT TO CLOSING
Section 7.1 General Conditions......................................................... 88
Section 7.2 Conditions Precedent to Buyer's Obligations................................ 88
Section 7.3 Conditions Precedent to Seller Parties' Obligations........................ 90
ARTICLE 8
TERMINATION; TERMINATION AMOUNT
Section 8.1 Termination by Mutual Consent.............................................. 90
Section 8.2 Termination by Either Buyer or Seller Parties.............................. 90
Section 8.3 Termination by Buyer....................................................... 91
Section 8.4 Termination by Seller Parties.............................................. 93
Section 8.5 Effect of Termination...................................................... 93
Section 8.6 Expenses; Termination Amount............................................... 94
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9.1 Non-Survival of Representations, Warranties and Certain Covenants.......... 96
Section 9.2 Guarantee by Parent........................................................ 96
Section 9.3 Notices.................................................................... 96
Section 9.4 Bulk Sales Laws............................................................ 97
Section 9.5 Amendment of Agreement..................................................... 97
Section 9.6 Entire Agreement........................................................... 97
Section 9.7 Assignment................................................................. 97
Section 9.8 Parties in Interest; No Third Party Beneficiaries.......................... 98
Section 9.9 Severability............................................................... 98
Section 9.10 Governing Law; Consent to Jurisdiction..................................... 98
Section 9.11 Waiver of Jury Trial....................................................... 98
Section 9.12 Execution in Counterparts.................................................. 98
Section 9.13 Public Announcement........................................................ 98
Section 9.14 No Strict Construction..................................................... 99
Section 9.15 Disclaimer of Warranties................................................... 99
Section 9.16 Effect of Investigation.................................................... 99
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Schedules
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Schedule 1.1(a) Seller Parties
Schedule 1.1(b) Acquired Companies
Schedule 1.1(c) Five Months Forecast
Schedule 1.1(d) Assumed Benefit Plans
Schedule 1.1(e) Initial 13-Week Cash Flow Projections
Schedule 1.1(f) Minority Investees
Schedule 1.1(g) Operating Metric Forecast
Schedule 1.2(e) Officers of Seller Parties for Determination of Knowledge of Seller Parties
Schedule 2.4(a) Excluded Contracts
Schedule 2.4(j) Retained Insurance and Reinsurance Contracts
Schedule 2.5(a)(iii) Assumed Benefit Plans Contracts
Schedule 2.11(i) Support Services to be made Available to Retained Business
Schedule 2.11(ii) Retained Business Franchise Term Sheet
Schedule 5.1(k) Qualified Retention Plan
Schedule 6.1(f) Post-Closing Benefits Matters
Schedule 8.2(j) Form of Ford MV Lease
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Exhibits
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Exhibit A Form of Assignment and Bill of Sale
Exhibit B Form of Assignment and Assumption Agreement
Exhibit C Form of Lease Assignment
Exhibit D Form of Trademark Assignment
Exhibit E Overbid Procedures Order
Exhibit F Bidding Procedures
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Index of Defined Terms
{TABLE}
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Term Section
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{S} {C}
13-Week Cash Flow Projections ......................................... 1.1
96-60 Election ........................................................ 5.15(a)
363 Order ............................................................. 1.1
365 Order ............................................................. 1.1
A.I. Credit Corporation Premium Finance Arrangement ................... 1.1
Accounting Firm ....................................................... 1.1
Acquired Assets ....................................................... 2.3
Acquired Business ..................................................... Preamble
Acquired Companies .................................................... 1.1
Acquired Company Employees ............................................ 3.18(a)
Acquired Insurance Contracts .......................................... 2.3(n)
Action ................................................................ 3.13(a)
Actuarial Valuation Report ............................................ 3.18(d)
Additional DIP Asset-Backed Fleet Financing ........................... 1.1
Adjusted EBITDAR ...................................................... 1.1
Affected Employees .................................................... 6.1(a)
Affiliate ............................................................. 1.1
Agreement ............................................................. Preamble
Airport Concessions ................................................... 3.17(a)
Alternative Procedure ................................................. 5.15(a)
Alternative Transaction ............................................... 1.1
Amended and Restated Credit Facility .................................. 1.1
Ancillary Agreements .................................................. 1.1
Applicable Waiting Period ............................................. 8.2(a)
Assignment and Bill of Sale ........................................... 1.1
Assumed Amended Benefit Plans ......................................... 7.2(g)
Assumed Benefit Plans Contracts ....................................... 2.5(a)(iii)
Assumed Contracts ..................................................... 1.1
Assumed Indebtedness .................................................. 1.1
Assumed Leases ........................................................ 1.1
Assumed Liabilities ................................................... 2.5(a)
Assumption Agreement .................................................. 1.1
Australian Financial Statements ....................................... 3.6(c)
Australian Seller Entities ............................................ 3.6(c)
Automotive Fleet Utilization Ratio .................................... 1.1
Automotive Rental Days ................................................ 1.1
Automotive Rental Fleet ............................................... 1.1
Automotive Rental Revenue ............................................. 1.1
Automotive Rental Revenue to Automotive Rental Days Ratio ............. 1.1
Bankruptcy Code ....................................................... Preamble
Bankruptcy Court ...................................................... Preamble
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Benefit Plan .......................................................... 1.1
Bidding Procedures .................................................... 5.5(a)
BRACI Administrative Services Agreement ............................... 1.1
BRACI License Agreement ............................................... 1.1
Budget Australia ...................................................... 3.6(c)
Budget Pension Plan ................................................... 3.18(d)
Bulk Sales Laws ....................................................... 1.1
Business Acquisition Agreements ....................................... 1.1
Business Contract ..................................................... 3.15(o)
Business Day .......................................................... 1.1
Business Records ...................................................... 1.1
Buyer ................................................................. Preamble
Buyer Closing Deadline ................................................ 8.2(a)
Buyer Plans ........................................................... 6.1(b)
Camfox ................................................................ 3.6(c)
Canadian Seller Entities .............................................. 3.6(d)
Cash Purchase Price ................................................... 1.1
Chapter 11 Cases ...................................................... Preamble
Closing ............................................................... 2.7
Closing Date .......................................................... 2.7
Closing Deadlines ..................................................... 8.2(a)
Code .................................................................. 1.1
Commercial Umbrella Premium Finance Arrangement ....................... 1.1
Competition Laws ...................................................... 1.1
Concessionaire ........................................................ 3.17(a)
Confidentiality Agreement ............................................. 1.1
Contract .............................................................. 1.1
control ............................................................... 1.1
Cure Costs ............................................................ 2.10
Dealer ................................................................ 1.1
Demand Notes .......................................................... 1.1
Derivative Agreement .................................................. 1.1
DIP Asset-Backed Fleet Financing ...................................... 1.1
DIP Financing ......................................................... 1.1
DIP L/C Rollover ...................................................... 1.1
Documents ............................................................. 1.1
Domestic Seller Entity ................................................ 5.1(aa)(iii)
Election .............................................................. 6.3(a)
Elections ............................................................. 6.3(a)
Encumbrance ........................................................... 1.1
Environmental Claim ................................................... 1.1
Environmental Law ..................................................... 1.1
Equity Security ....................................................... 1.1
ERISA ................................................................. 1.1
ERISA Affiliate ....................................................... 1.1
Exchange Act .......................................................... 1.1
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Excluded Assets ....................................................... 2.4
Excluded Companies .................................................... 1.1
Excluded Liabilities .................................................. 2.6
Existing Trucks ....................................................... 3.7(a)
Fair Market Value ..................................................... 1.1
Final Order ........................................................... 1.1
Final Order Deadline .................................................. 8.3(f)
FIRPTA Certificate .................................................... 2.8(e)
Five Months Forecast .................................................. 1.1
Fixtures .............................................................. 1.1
Ford Agreements ....................................................... 1.1
Ford Line of Credit ................................................... 1.1
Ford MV Lease ......................................................... 1.1
Foreign Benefit Plan .................................................. 1.1
Franchisee ............................................................ 1.1
Full-Time Equivalents ................................................. 1.1
GAAP .................................................................. 1.1
Governmental Body ..................................................... 1.1
Governmental Consents ................................................. 3.4(e)
Hyperion .............................................................. 5.2(c)
Initial 13-Week Cash Flow Projections ................................. 1.1
Insurance Laws ........................................................ 3.24(a)
Insurance Permit ...................................................... 3.24(b)
Intellectual Property ................................................. 3.22(a)
International Seller Entity ........................................... 5.1(aa)(iv)
Investment ............................................................ 1.1
IRS ................................................................... 1.1
June 30 Balance Sheet ................................................. 3.6(b)
June 30 Financial Statements .......................................... 3.6(b)
June 30 Income Statement .............................................. 3.6(b)
knowledge of Seller Parties ........................................... 1.2(e)
Law ................................................................... 1.1
Lease ................................................................. 1.1
Lease Assignment ...................................................... 1.1
Leased Premises ....................................................... 1.1
Liabilities ........................................................... 1.1
License Agreements .................................................... 3.22(c)
March 31 Financial Statements ......................................... 3.6(b)
Marks and Logos ....................................................... 6.5
Material Adverse Effect ............................................... 1.1
Materials of Environmental Concern .................................... 1.1
Minority Investees .................................................... 1.1
Multiemployer Plans ................................................... 6.1(g)
New Zealand Financial Statements ...................................... 3.6(e)
New Zealand Seller Entities ........................................... 3.6(e)
Nissan Facility ....................................................... 1.1
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Offering Circulars .................................................... 3.27(a)
Operating Metric Forecast ............................................. 1.1
Operations Pty. ....................................................... 3.6(c)
Overbid Procedures Order .............................................. 5.5(a)
Owned Real Property ................................................... 1.1
Owned Vehicles ........................................................ 1.1
Parent ................................................................ Preamble
Pension Plan .......................................................... 1.1
Permits ............................................................... 1.1
Permitted Encumbrances ................................................ 1.1
Permitted Property Encumbrances ....................................... 1.1
Person ................................................................ 1.1
Personal Information .................................................. 3.22(e)
Petitions ............................................................. Preamble
Premises .............................................................. 1.1
Proprietary Software .................................................. 3.22(b)
Prudent Industry Practices ............................................ 1.1
Qualified Fees ........................................................ 2.5(a)(vi)
Qualified Retention Plan .............................................. 5.1(k)
Real Estate Deed ...................................................... 1.1
Regulatory Challenge .................................................. 5.3(c)
Reimbursement Agreements .............................................. 1.1
Related Party Agreement ............................................... 1.1
Rental Transaction .................................................... 1.1
Rental Transactions to Full-Time Equivalents Ratio .................... 1.1
Rental Vehicle ........................................................ 1.1
Representation Failure ................................................ 7.2(a)
Representatives ....................................................... 5.2(a)
Repurchase Program .................................................... 1.1
Retained Business ..................................................... 1.1
Rev Proc 96-60 ........................................................ 5.15(a)
RSI ................................................................... 2.3(q)
Ryder License Agreement ............................................... 2.3(q)
SEC ................................................................... 1.1
Section 338(h)(10) Allocation Statement ............................... 6.3(b)
Seller ................................................................ Preamble
Seller Closing Deadline ............................................... 8.2(a)
Seller Entities ....................................................... 1.1
Seller Entities Employees ............................................. 3.18(a)
Seller Evaluation Material ............................................ 1.1
Seller Financial Statements ........................................... 3.6(a)
Seller Parties ........................................................ Preamble
Seller Parties Disclosure Schedule .................................... Article 3
Seller Parties Employees .............................................. 3.18(a)
Seller SEC Documents .................................................. 3.6(a)
Sixt .................................................................. 2.4(f)
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Software .............................................................. 3.22(a)
Subsidiaries .......................................................... 1.1
Support Vehicles ...................................................... 1.1
Tax ................................................................... 1.1
Tax Package ........................................................... 6.4
Tax Return ............................................................ 1.1
Telephone Numbers ..................................................... 1.1
Termination Amount .................................................... 8.6(b)
Testing Period ........................................................ 8.3(i)
TFFC .................................................................. 1.1
TFFC MV Leases ........................................................ 1.1
Third Party ........................................................... 1.1
Third Party Consents .................................................. 3.4(d)
Title IV Plan ......................................................... 3.18(e)
Trade Secrets ......................................................... 3.22(a)
Trademark Assignments ................................................. 1.1
Trademarks ............................................................ 3.22(a)
Transfer Taxes ........................................................ 5.10(b)
Transfer Tax Returns .................................................. 5.10(b)
Treasury Regulations .................................................. 1.1
Truck Rental Fleet .................................................... 1.1
Undisclosed Joint Liability ........................................... 1.1
UPAC Premium Finance Arrangement ...................................... 1.1
U.S. Benefit Plan ..................................................... 1.1
Vehicle Manufacturer .................................................. 1.1
WARN Act .............................................................. 1.1
Welfare Plan .......................................................... 1.1
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ASSET AND STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of
August 22, 2002, by and among Budget Group, Inc., a Delaware corporation
("Seller"), the Subsidiaries of Seller listed on Schedule 1.1(a) (collectively
with Seller, the "Seller Parties"), Cendant Corporation, a Delaware corporation
("Parent") and Cherokee Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and its Subsidiaries conduct automotive rental
businesses and operations throughout the United States, Canada, the Caribbean
region, Latin America and the Asia-Pacific region, directly or through various
Franchisees, Dealers, licensees and sub-licensees under the brand names Budget
and Ryder, including the rental of automobiles, trucks and other vehicles in the
daily rental market (excluding any business conducted in Europe, the Middle East
and Africa, collectively, the "Acquired Business");
WHEREAS, on July 29, 2002, all of Seller Parties filed voluntary
petitions (the "Petitions") for relief commencing cases (the "Chapter 11 Cases")
under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. sections 101
et seq. (as amended, the "Bankruptcy Code"), in the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy Court"); and
WHEREAS, Buyer desires to purchase and assume from Seller Parties,
and Seller Parties desire to sell, convey, assign and transfer to Buyer, the
assets and properties of Seller Parties relating to the Acquired Business
specified herein, together with certain specified obligations and liabilities
relating thereto, all in the manner and subject to the terms and conditions set
forth herein and in the Ancillary Agreements and in accordance with sections
105, 363 and 365 of the Bankruptcy Code.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants herein contained and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms. For the purposes of this Agreement,
the following terms shall have the following meanings:
"13-Week Cash Flow Projections" means, with respect to the relevant
13-week period, a projected statement of cash flow for the operations of Seller
Entities for such period in respect of the Acquired Business, detailing the
sources and uses of such cash flow, in form and scope consistent with the
Initial 13-Week Cash Flow Projections.
"363 Order" means an order of the Bankruptcy Court, in substance and
form satisfactory to Buyer under this Agreement pursuant to sections 105 and 363
of the Bankruptcy Code and not inconsistent with the terms of this Agreement,
unless otherwise agreed among Buyer and Seller Parties. Subject, in the case of
clauses (a)(ii)(A) and (b) below to changes that are reasonably acceptable to
Buyer, the 363 Order shall provide, among other things: (a) that the transfer of
the Acquired Assets by Seller Parties to Buyer and the assumption of the Assumed
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Liabilities by Buyer from Seller Parties: (i) is or will be a legal, valid and
effective transfer of the Acquired Assets; (ii) vests or will vest Buyer with
good title to the Acquired Assets free and clear of all Liabilities and
Encumbrances (including Liabilities and Encumbrances (A) that purport to give to
any Person a right or option to retain any rights in or to Seller Parties'
Trademarks or Marks and Logos or other Intellectual Property, (B) that purport
to give to any Person a right or option to effect any forfeiture, modification,
right of first refusal, repurchase or termination of Seller Parties' or Buyer's
interest in the Acquired Assets or any similar rights or (C) in respect of
Taxes), except those expressly assumed or permitted by Buyer hereunder; and
(iii) constitutes reasonably equivalent value and fair consideration under the
Bankruptcy Code and under the laws of the United States, any state, territory,
possession, or the District of Columbia; (b) that all Persons, including, but
not limited to, all debt security holders, equity security holders,
governmental, tax and regulatory authorities, lenders, parties to or
beneficiaries under any Benefit Plan, trade and other creditors, asserting or
having Liabilities or Encumbrances of any kind or nature whatsoever against any
of Seller Parties or the Acquired Assets (whether legal or equitable, secured or
unsecured, matured or unmatured, contingent or non-contingent, senior or
subordinated), arising under or out of, in connection with, or in any way
relating to, Seller Parties, the Acquired Assets, the operation of Seller
Parties' businesses prior to the Closing Date, or the transfer of the Acquired
Assets to Buyer, other than the Assumed Liabilities and Permitted Encumbrances,
shall be forever barred, estopped and permanently enjoined from asserting,
prosecuting or otherwise pursuing against Buyer, Parent, their Affiliates, any
of the Acquired Companies or their Subsidiaries, or any of their respective
assets, property, successors or assigns, or the Acquired Assets, Seller Parties'
Liabilities (other than Assumed Liabilities) to such Persons or such Person's
Encumbrances (other than Permitted Encumbrances) against Seller Parties or their
respective property; (c) that the Bankruptcy Court retains jurisdiction to
enforce the provisions of this Agreement in all respects, including retaining
jurisdiction to protect Buyer and its Affiliates against any of the Excluded
Liabilities; (d) that the provisions of the 363 Order are nonseverable and
mutually dependent; (e) that the transactions contemplated by this Agreement are
undertaken by Buyer in good faith, as that term is used in section 363(m) of the
Bankruptcy Code; and (f)(i) a declaration that no Acquired Company nor any of
their respective assets or properties are directly or indirectly liable for or
subject to any Undisclosed Joint Liability or Liability relating to Taxes that
has been or may be asserted against any Seller Party, their estates, or any
Affiliate of Seller Parties (other than the Acquired Companies) or of the
Acquired Companies to the extent that any such Liability is based in whole or in
part upon the fact that any such Acquired Company was at any time an Affiliate
of Seller Parties or a member of the same affiliated group (within the meaning
of section 1504 of the Code) or state combined, unitary or similar group of
Seller Parties or any of their Affiliates (other than the Acquired Companies),
and enjoin any and all holders of any such Liability from asserting, prosecuting
or otherwise pursuing any such Liability against any Acquired Company or any of
their respective assets or properties; and (ii) provided, however, that if the
Bankruptcy Court will refuse to approve a 363 Order containing the declaration
specified above in clause (f)(i) above the 363 Order shall provide that Seller
Parties shall jointly and severally indemnify Buyer, Parent and their successors
and assigns, affiliates, employees, directors, agents and representatives from
and against and shall reimburse the same for and in respect of any and all
Liability relating to Taxes referred to in clause (f)(i) above, including,
without limitation, all penalties, interest, costs and expenses (including
attorney fees) incurred for, in connection with
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Budget Group
As referenced in this Asset and Stock Purchase Agreement:
BUDGET GROUP, – TEXT}
{PAGE}
Exhibit 99.1
EXECUTION COPY
ASSET AND STOCK PURCHASE AGREEMENT
BY AND AMONG
BUDGET GROUP, INC.
AND
CERTAIN OF ITS SUBSIDIARIES,
CENDANT CORPORATION
AND
CHEROKEE ACQUISITION CORPORATION
DATED AS
_____________
Budget Group, – AND STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of
August 22, 2002, by and among Budget Group, Inc., a Delaware corporation
("Seller"), the Subsidiaries of Seller listed on Schedule 1.1(
_____________
Budget Group, – Amended and Restated Base Indenture, dated as
of December 1, 1996, among TFFC, as Issuer, Budget Group, Inc. (formerly known
as Team Rental Group, Inc.), as Servicer, Budget Group, Inc. (formerly
_____________
Budget Group, – TFFC, as Issuer, Budget Group, Inc. (formerly known
as Team Rental Group, Inc.), as Servicer, Budget Group, Inc. (formerly known as
Tem Rental Group, Inc.), as Budget Interestholder (formerly known as
_____________
Budget
Group, – 1997, among Budget Rent-A-Car
Systems, Inc., those Subsidiaries, Affiliates and Non-Affiliates of Budget
Group, Inc. identified on the signature pages thereto, Team Fleet Financing
Corporation, Budget Rent a
_____________
dt 74333
;
Ford Motor
As referenced in this Asset and Stock Purchase Agreement:
Ford Motor Co – devices.
"Ford Agreements" means (a) the Supply Agreement, dated as of April
29, 1997, among Ford Motor Co mpany, Team Rental Group, Inc., and Budget Rent a
Car Corporation, (b) the Advertising Agreement,
_____________
Ford Motor Co – Rent a
Car Corporation, (b) the Advertising Agreement, dated as of April 29, 1997,
among Ford Motor Co mpany, Budget Rent a Car Corporation and Budget Rent a Car
Systems, Inc., each as
_____________
Ford Motor Co – as amended by the Settlement Agreement and Release, dated as
of December 22, 1999, among Ford Motor Co mpany, Seller (formerly, Team Rental
Group, Inc.) and Budget Rent a Car Corporation, (c) the
_____________
Ford Motor Co – Program, dated as of June 14, 2002, (d) the letter, dated July 17,
2002, from Ford Motor Co mpany to Budget Rent a Car Corporation as an agent and
servicer for TFFC and (
_____________
Ford Motor Co – a Car Corporation as an agent and
servicer for TFFC and (e) the arrangements with Ford Motor Co mpany and Ford
Motor Credit Company described in the order of the Bankruptcy Court, dated
_____________
dt 72691
;
|
Pep Boys
As referenced in this Asset and Stock Purchase Agreement:
Pep Boys - Manny, Moe & Jack, – Rent a Car Systems, Inc. as in
effect as of the date hereof, (y) pursuant to the Master Lease Agreement, dated
as of September 18, 2001, as amended, between The Pep Boys - Manny, Moe & Jack,
The Pep Boys Manny, Moe & Jack California, Pep Boys - Manny, Moe & Jack of
Delaware, Inc. and Budget Rent a Car Systems, Inc. as in effect as of the date
_____________
Pep Boys - Manny, Moe & Jack – hereof, (y) pursuant to the Master Lease Agreement, dated
as of September 18, 2001, as amended, between The Pep Boys - Manny, Moe & Jack,
The Pep Boys Manny, Moe & Jack California, Pep Boys - Manny, Moe & Jack of
Delaware, Inc. and Budget Rent a Car Systems, Inc. as in effect as of the date
hereof or (z) locations that service any airport;
(ee) (i) not consent to
_____________
dt 1509921
;
Wal-Mart Stores
As referenced in this Asset and Stock Purchase Agreement:
Wal-Mart Stores, Inc – Roebuck and Co. and Budget Rent a Car
Corporation, (x) pursuant to the Sub-Lease Agreement, dated as of March 13,
2002, between Wal-Mart Stores, Inc . and Budget Rent a Car Systems, Inc. as in
effect as of the date hereof, (y) pursuant to the Master Lease Agreement,
_____________
dt 278323
;
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| 2004 |
Asset Purchase Agreement
Asset Purchase Agreement (171K)
Doc #310837: Click preview link for longer preview.
ASSET PURCHASE AGREEMENT
DATED AS OF JUNE 29, 2004
BY AND BETWEEN
SEARS, ROEBUCK AND CO.
AND
KMART CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE
1
Section 1.1.
Purchase and Sale of Transferred Assets
1
Section 1.2.
Excluded Assets
2
Section 1.3. . . .
310837
|
ER
As referenced in this Asset Purchase Agreement:
environmental remediation – mold contamination on, in or under any Property; or (y) the presence of any polychlorinated biphenyls or radioactive materials located on any Property. To Sellers knowledge, there is no ongoing environmental remediation or investigation being performed by or on behalf of Seller with respect to any of the Properties.
For purposes of this Agreement, the phrase Environmental Laws shall mean any federal,
_____________
dt 995769
;
|
 Wachtell Lipton
As referenced in this Asset Purchase Agreement:
Wachtell, Lipton – Road
Troy, Michigan 48084
Attn: Harold W. Lueken, Esq.
Senior Vice President and General Counsel
Fax: (248) 614-0951
With a copy to:
Wachtell, Lipton , Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Stephen G. Gellman, Esq.
Scott K. Charles, Esq.
Fax: (212)
_____________
Wachtell, Lipton – Street
New York, New York 10019
Attn: Stephen G. Gellman, Esq.
Scott K. Charles, Esq.
Fax: (212) 403-2000
And a copy to:
Wachtell, Lipton , Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn: Chetan Gulati
Fas: (212) 403-2000
If to Purchaser:
Sears,
_____________
dt 304011
|
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| 2004 |
Bylaws
Bylaws (53K)
Doc #310852: Click preview link for longer preview.
Sears, Roebuck and Co.
By-Laws
As Amended to
October 8, 2003
Incorporated
New York
1906
Contents
By-Laws
Article I
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings
1
Section 2. Annual Meetings
1
Section 3. Special Meetings
2
Section 4. Notice of Meetings
2
. . .
310852
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| 2001 |
Bylaws
Bylaws (50K)
Doc #310992: Click preview link for longer preview.
Sears, Roebuck and Co.
By-Laws
As Amended to
February 14, 2001
Incorporated
New York
1906
By-Laws
of
Sears, Roebuck and Co.
as amended to
February 14, 2001
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of the shareholders shall be held at such place within or without the State of New York as shall be fixed by the Board of Directors from time to time.
Section 2. Annual Meetings . The annual meeting of the . . .
310992
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| Full Doc
| 2004 |
Certifications
Certifications (3K)
Doc #310858: This document is immediately available for purchase, but does not have a preview available for viewing.
310858
| | |
| Full Doc
| 2004 |
Certifications
Certifications (3K)
Doc #310859: This document is immediately available for purchase, but does not have a preview available for viewing.
310859
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| 2003 |
Commitment Letter
Commitment Letter (45K)
Doc #164719: Click preview link for longer preview.
FOOTHILL.LOGO
May 20, 2003
Kohlberg Management IV, LLC
111 Radio Circle
Mount Kisco, NY 10549
Attn.: Christopher Lacovara
Dear Chris:
Kohlberg Management IV, LLC (the "Investor") has advised Foothill Capital
Corporation ("Foothill") and Silver Point Capital, L.P. or one or more of its
affiliates ("Silver Point," and, collectively with Foothill, "Lenders"), that
an entity to be formed by the Investor (the "Acquiror"), has agreed either to
acquire the stock of and/or to merge with (the "Acquisition") Applied Graphics
Technologies, Inc. and related entities (collectively, the "Target"), and that
the Target will be the surviving corporation following the Acquisition.
In accordance with our recent discussions, Lenders are pleased to offer the
following financing arrangement (the "Financing") for the Acquiror, the Target
and certain of the Acquiror's and the Target's subsidiaries and/or affiliates
designated by Lenders (collectively, jointly and severally, the "Borrower"), on
the terms, and subject to each of the conditions, described below and on
Appendix A attached hereto.
The terms and conditions of the Financing would be as follows:
1. Amount.
Lenders (severally, not jointly and severally) will extend a senior secured
credit facility to Borrower in an aggregate amount up to $119,000,000 (the
"Senior Secured Credit Facility"), pursuant to which Foothill shall provide the
Revolver (as defined herein), including letters of credit, and Term Loan A (as
defined herein), and Silver Point shall provide Term Loan B (as defined
herein). The Revolver (including letters of credit), Term Loan A and Term Loan
B are referred to collectively as the "Credits." The Senior Secured Credit
Facility shall be provided upon the terms and conditions set forth herein and in
a Loan and Security Agreement (the "Loan Agreement") between Borrower and
Lenders and related
164719
|
Sears, Roebuck
As referenced in this Commitment Letter:
Sears Roebuck – to account debtors exceeding this 10% threshold, such
accounts receivable will be includable only up to such percentage); provided,
however, that, as to Sears Roebuck & Co., a percentage limitation of 15% (in
lieu of 10%) shall apply for purposes hereof, and (d) are not due from
affiliates
_____________
dt 151628
;
Graphics Tech.
As referenced in this Commitment Letter:
Graphics
Technologies, Inc. – with Foothill, "Lenders"), that
an entity to be formed by the Investor (the "Acquiror"), has agreed either to
acquire the stock of and/or to merge with (the "Acquisition") Applied Graphics
Technologies, Inc. and related entities (collectively, the "Target"), and that
the Target will be the surviving corporation following the Acquisition.
In accordance with our recent discussions, Lenders are pleased to offer
_____________
dt 1456179
;
 Wells Fargo Bank
As referenced in this Commitment Letter:
Wells Fargo Bank, N.A. – major banks in the London interbank market,
adjusted by the reserve percentage prescribed by governmental authorities as
determined by Foothill.
"Wells Fargo" means Wells Fargo Bank, N.A.
Foothill Capital Corporation
617-824-4400
One Boston Place, 18th Floor, Boston, MA 02108
A WELLS FARGO Company
{/TEXT}
{/DOCUMENT}
_____________
dt 114437
;
| Kohlberg Management IV, LLC;
Silver Point Capital, L.P.;
Applied Graphics Technologies Inc (kagt Holdings Inc)
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| 2001 |
Confidential Agreement
Confidential Agreement (19K)
Doc #310994: Click preview link for longer preview.
CONFIDENTIAL AGREEMENT
It being mutually agreed between Sears, Roebuck and Co. ("Sears") and Julian Day ("Executive") that he resign from Sears, the parties intending to be legally bound and for good and valuable consideration agree as follows:
1. Executive agrees to discontinue all job duties effective October 1, 2000. During the period October 2, 2000 through October 1, 2002, Executive will be placed on leave of absence status and will be paid his current base salary, less legal deductions, in the form of salary continuation. After October 1, 2001, all salary and Annual Incentive payments owed hereunder will be reduced by the amount of any other salary and bonus payments or income from self-employment received by the Executive during the period from October 1, 2001 through September 30, 2002. This Agreement is contingent on Executive resigning in writing from Sears to be effective October 1, 2000.
2. Executive will be paid an Annual Incentive payment for all of 2000 based on actual results, payable at the normal time and in the normal manner. Subject to possible reduction pursuant to Paragraph 1, above, Executive will be entitled to a target Annual Incentive payment for fiscal year 2001 and fiscal year 2002 payable at the normal time. Executive will be eligible for a prorated Long Term Incentive payout for the 1999-2001 cycle through December 31, 2000, payable at the normal time and based on actual results. Executive will not be eligible for any other Annual or Long Term Incentive stock option grants or payments.
3. All benefits for which Executive is currently eligible and enrolled in, with the exception of Long-Term Disability, Flexible Spending Accounts, and deferred compensation will continue during Executive's period of inactive status (through October 1, 2002). After October 1, 2002, Executive will receive all payments and benefits to which he is entitled as governed by the terms and conditions of Sears benefit programs then in effect. A lump sum payment will be made for any unused vacation benefits within a reasonable period of time after October 1, 2000. Executive will not be entitled to any vacation after October 1, 2000.
4. Except as otherwise prohibited by applicable law, in the event of the death of Executive prior to Executive's receiving the full amounts of salary continuation or other incentive or benefit payments owed hereunder, the remainder of such amounts and benefits shall, for the same period as would have occurred had Executive survived through September 30, 2002, be paid or provided to such person or persons as Executive shall designate in writing, or in the absence of such designation, to Executive's estate.
310994
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| 2002 |
Confidentiality Agreement
Confidentiality Agreement (26K)
Doc #310947: Click preview link for longer preview.
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (this "Agreement") is dated as of February
26, 2002 and is by and between Lands' End, Inc. (the "Company") and Sears,
Roebuck and Co. ("Sears"). Sears and the Company are sometimes collectively
referred to herein as the "Parties" and individually as a "Party."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Parties desire to exchange information in order to enable them
to evaluate the possibility of entering into a negotiated business transaction
(the "Transaction").
WHEREAS, during the course of any discussions or negotiations regarding the
Transaction, the Company and Sears each from time to time may provide the other
with certain Evaluation Material (as defined below).
WHEREAS, each of the Parties acknowledges and agrees that any Evaluation
Material provided to the other, whether before or after the execution of this
Agreement, is proprietary and highly confidential and that the unrestricted
disclosure of any Evaluation Material by one party would result in substantial
damage to the other, which damage would be irreparable and extremely difficult
to quantify.
WHEREAS, each of the Parties desires to preserve its business operations
and capital structure free from disruption that could arise from the misuse of
Evaluation Material.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties hereto agree as follows:
As used in this Agreement, the term "Exchange Act" means the Exchange Act
of 1934, as amended, and "affiliate" has the meaning set forth in Rule 12b-2 of
the regulations promulgated under the Exchange Act.
1. Evaluation Material. The term "Receiving Party" shall mean a Party that
receives Evaluation Material from the other Party pursuant to this Agreement,
and the term "Disclosing Party" shall mean a Party to this Agreement that
provides or discloses its Evaluation Material to a Receiving Party. As a
condition to the furnishing of Evaluation Material to the partners, directors,
officers, employees, agents or advisors of a Party, including without limitation
attorneys, accountants, consultants, bankers, other sources of financing and
capital and financial advisors (collectively, "Representatives"), each Party
agrees and shall cause its Representatives to treat such information in
accordance with the provisions of this Agreement and to take or abstain from
taking certain other actions hereinafter set forth. The term "Evaluation
Material" means any and all information, in any form or medium, concerning the
Disclosing Party (whether prepared by the Disclosing Party, its advisors or
otherwise and
{PAGE}
irrespective of the form of communication and whether it is labeled or otherwise
identified as confidential) that is furnished to the Receiving Party or to its
Representatives by or on behalf of the Disclosing Party. In addition,
"Evaluation Material" shall be deemed to include all notes, analyses, studies,
interpretations and other documents or reports prepared by a Receiving Party or
its Representatives which contain, reflect or are based upon, in whole or part,
the information furnished to the Receiving Party or its Representatives pursuant
hereto. The term "Evaluation Material" does not include information which: (a)
is or becomes available to the public generally (other than as a result of a
disclosure by the Receiving Party or one of its Representatives); (b) becomes
available to the Receiving Party on a non-confidential basis from a source other
than the Disclosing Party or one of its Representatives, provided that such
source is not, to the knowledge of the Receiving Party after reasonable inquiry,
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the Disclosing Party or any other
person with respect to such information; or (c) has been independently acquired
or developed by the Receiving Party without violating any of its obligations
under this Agreement, as demonstrated by the Receiving Party.
2. Use of Evaluation Material and Confidentiality.
----------------------------------------------
(a) The Parties hereto agree that a Receiving Party and its Representatives
shall use the Evaluation Materials of the Disclosing Party solely for the
purpose of evaluating the possible Transaction that the Evaluation Material will
be kept confidential and that neither the Receiving Party nor any of its
Representatives will disclose any of the Evaluation Material in any manner
whatsoever; provided however that the Receiving Party may disclose Evaluation
Material: (i) to such of its Representatives who need such information for the
sole purpose of evaluating the Transaction (it being understood that such
Representatives shall be informed by the Receiving Party of the confidential
nature of such information and shall be directed by the Receiving Party to treat
such information as confidential); and (ii) in all other cases, only if and to
the extent that the Disclosing Party gives its prior written consent to such
disclosure.
(b) The Parties hereto agree that each will be fully responsible for any
breach of any of the provisions of this Agreement by any of its Representatives.
(c) Each of the Parties hereto agrees that, without the prior written
310947
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| 2001 |
Consolidated Mortgage and Security Agreement [Amended and Restated]
Consolidated Mortgage and Security Agreement [Amended and Restated] (401K)
Doc #270862: Click preview link for longer preview.
THIS AMENDED, RESTATED AND CONSOLIDATED MORTGAGE AND SECURITY
AGREEMENT (this "SECURITY INSTRUMENT") is made as of the 31st day of May, 2001,
by ALEXANDER'S KINGS PLAZA, LLC ("PLAZA LLC"), a Delaware limited liability
company, ALEXANDER'S OF KINGS, LLC ("KINGS LLC"), a Delaware limited liability
company, and KINGS PARKING, LLC ("PARKING LLC"), a Delaware limited liability
company, each having its principal place of business at c/o Vornado Realty
Trust, 210 Route 4 East, Paramus, New Jersey 07652, as mortgagor (Plaza LLC,
Kings LLC and Parking LLC are collectively referred to as "BORROWER") to MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation, having an
address at 60 Wall Street, New York, New York 10260, as mortgagee ("LENDER").
RECITALS:
WHEREAS, Plaza LLC is the fee simple owner of the real
property described in Exhibit A-1 attached hereto and made a part hereof (the
"FEE LAND") and the improvements located thereon and of the leasehold estate and
all of tenant's right, title, interest, privileges and options created by that
certain Lease dated as of February 1, 1970, as assigned by the Assignment and
Assumption of Tenant's Interest in the Overhang Leases from Kings Plaza Shopping
Center of Avenue U, Inc. to Alexander's Department Stores of Brooklyn, Inc.
dated June 18, 1998, as amended by Amendment to Macy's Overhang Lease dated July
18, 1998 and as further assigned by the Assignment and Assumption of Tenant's
Interest in the Overhang Leases from Alexander's Department Stores of Brooklyn,
Inc. to Alexander's Kings Plaza Center, Inc. dated June 18, 1998 (as amended,
modified, extended, assigned and assumed or supplemented from time to time the
"OVERHANG LEASE"), together with all of Plaza LLC's right, title and interest in
and to the land described on Exhibit A-2 attached hereto and made a part hereof
and the improvements thereon demised pursuant to the Overhang Lease (the
"OVERHANG LEASED LAND");
WHEREAS, Kings LLC is the owner of that certain leasehold
estate and all of tenant's right, title, interest, privileges and options
created by that certain Indenture between The City of New York, a municipal
corporation existing under the laws of the State of New York, dated as of
November 29, 1967, as amended by an Amendment of Indenture dated September 19,
1969, and assigned by U&F Realty Corp. to Kings Plaza Shopping Center of
Flatbush Avenue, Inc. and Kings Plaza Shopping Center of Avenue U, Inc. pursuant
to an Assignment and Assumption Agreement dated January 27, 1970, as further
amended by letter agreement dated May 25, 1972 and by Agreement dated May 25,
1976 and as further assigned by Kings Plaza Shopping Center of Flatbush, Inc. to
Alexander's Department Stores of Brooklyn, Inc., pursuant to an Assignment and
Assumption of City Lease dated as of June 18, 1998 covering Block 8470, p/o 50
and part of Lot 1, Brooklyn, New York (as amended, modified, extended, assigned
and assumed or supplemented from time to time, the "GROUND LEASE"), together
with all of Kings LLC's right, title and interest in and to the land described
on Exhibit A-3 attached hereto and made a part hereof and the improvements
thereon demised pursuant to the Ground Lease (the "CITY LEASED LAND").
{PAGE} 10
WHEREAS, Parking LLC is the fee simple owner of the real
property described in Exhibit A-4 attached hereto and made a part hereof and the
improvements located thereon (the "PARKING LAND");
WHEREAS, Lender is the owner and holder of certain mortgages
covering the fee and leasehold estates in the Land as more particularly
described on Exhibit B attached hereto (hereinafter referred to as the "ORIGINAL
MORTGAGES") and of the notes, bonds or other obligations secured thereby
(hereinafter referred to as the "ORIGINAL NOTES");
WHEREAS, there is now owing on the Original Notes and the
Original Mortgages the unpaid principal sum of One Hundred Fifteen Million Two
Hundred Nine Thousand Five Hundred Ninety Two and No/100 Dollars
($115,209,592.00), together with interest;
WHEREAS, in connection with the making of a loan by Lender to
Borrower, Borrower has made that certain Mortgage Note dated the date hereof in
the principal amount of One Hundred Seven Million Seven Hundred Ninety Thousand
Four Hundred Eight and No/100 Dollars ($107,790,408.00) in favor of Lender (the
"NEW NOTE"), which New Note has an outstanding principal balance of One Hundred
Seven Million Seven Hundred Ninety Thousand Four Hundred Eight and No/100
Dollars ($107,790,408.00), together with interest;
WHEREAS, the New Note is secured by, among other things, that
certain Mortgage dated as of the date hereof made by Borrower to Lender
encumbering the Premises, a copy of which is to be recorded in the Office of the
City Register, Kings County, New York prior to the recording of this Security
Instrument (the "NEW MORTGAGE");
WHEREAS, contemporaneously with the execution and delivery of
this Security Instrument, Borrower has executed and delivered to Lender a
certain Amended, Restated and Consolidated Promissory Note in the aggregate
principal amount of Two Hundred Twenty Three Million And No/100 Dollars
($223,000,000.00) (as the same may be amended, restated, replaced, supplemented,
substituted or otherwise modified from time to time, the "NOTE"), which Note
evidences, and amends, restates and consolidates into one indebtedness all
amounts presently due and owing in respect of the Original Notes and the New
Note, and secured by the Original Mortgages and the New Mortgage; and
WHEREAS, Borrower and Lender have agreed in the manner
hereinafter set forth (i) to spread the Original Mortgages and the New Mortgage
and the respective liens thereof over those portions of the Property (as
hereinafter defined) not already covered thereby, (ii) to combine, consolidate
and coordinate the Original Mortgages and the New Mortgage and the respective
liens thereof, as spread, into one unified lien in the aggregate principal
amount of Two Hundred Twenty Three Million And No/100 Dollars ($223,000,00.00)
encumbering the Property (hereinafter defined) and (iii) to modify, amend and
restate the terms and provisions of the Original Mortgages and the New Mortgage
270862
|
Alexander's
As referenced in this Consolidated Mortgage and Security Agreement [Amended and Restated]:
Alexander's Inc – the case of (ii) or (iii) the
assets or liabilities of Borrower or Principal may be listed on the consolidated
financial statements of Alexander's Inc . and its consolidated subsidiaries or
another person or entity if required by GAAP;
(j) enter into any contract or agreement with any
_____________
Alexander's, Inc – tax returns or be included on the tax
returns of any other person or entity except as required by applicable law or
with Alexander's, Inc . and its consolidated subsidiaries;
(p) agree to, enter into or consummate any transaction which would
render Borrower or Principal, as the case
_____________
Alexander's, Inc – with all corporate actions to the extent permitted
by applicable law; or
(bb) have any of its obligations guaranteed by an affiliate except
Alexander's, Inc . or any successor entity thereto; or
(cc) violate or cause to be violated the assumptions made with
respect to the single purpose,
_____________
Alexander's, Inc – in the case of (d) above) thirty (30) days prior
written notice of any Transfer pursuant to this Section 8.3 (a), (ii)
Alexander's, Inc . must retain at least a 51% direct ownership interest in
Borrower or Lender must receive the prior written confirmation that such
Transfer,
_____________
Alexander's Inc – 8.3(e)) and in addition to the permitted transfers
under Section 8.3(a):
(i) for so long as the stock of Alexander's Inc . continues to be
listed on the New York Stock Exchange or such other nationally recognized
stock exchange, nothing this Section 8 shall
_____________
dt 173605
;
UBS
As referenced in this Consolidated Mortgage and Security Agreement [Amended and Restated]:
UBS AG, – 567,800.00) made by Alexander's King Plaza Center, Inc., Kings Plaza Corp.
and Alexander's Department Stores of Brooklyn, Inc. to UBS AG, Stamford Branch,
as administrative agent for lenders and recorded in the Kings County Clerk's
Office on September 17, 1999 in Reel
_____________
UBS AG, – 432,200.00) made
by Alexander's King Plaza Center, Inc., Kings Plaza Corp. and Alexander's
Department Stores of Brooklyn, Inc. to UBS AG, Stamford Branch, as
administrative agent for lenders and recorded in the Kings County Clerk's Office
on September 17, 1999 in Reel
_____________
dt 237988
;
|
Vornado Realty
As referenced in this Consolidated Mortgage and Security Agreement [Amended and Restated]:
Vornado Realty
Trust, – liability
company, and KINGS PARKING, LLC ("PARKING LLC"), a Delaware limited liability
company, each having its principal place of business at c/o Vornado Realty
Trust, 210 Route 4 East, Paramus, New Jersey 07652, as mortgagor (Plaza LLC,
Kings LLC and Parking LLC are collectively referred to as "
_____________
Vornado Realty Trust, – required (and no
transfer fees shall be charged by Lender) with respect to (a) a merger or
consolidation between Alexander's Inc. and Vornado Realty Trust, Vornado
Realty LP or a Vornado Affiliate (defined below) (collectively, "VORNADO")
or (b) a transfer of the Property to Vornado, provided that,
_____________
Vornado Realty Trust – has been delivered, (3) all reasonable out-of-pocket
costs and expenses of Lender have been paid by Borrower and (4) whichever
of Vornado Realty Trust or Alexander's Inc. is the surviving entity in a
merger or consolidation, shall continue after such merger, consolidation
or transfer to be
_____________
Vornado Realty Trust, – or another
nationally recognized exchange; and
(iii) nothing in this Section 8 shall prohibit a transfer of direct
or indirect interests in any Vornado Realty Trust, Vornado Realty LP or
any Vornado Affiliate (or in any entities holding such direct or indirect
interests) for so long as the
_____________
Vornado Realty Trust – Realty LP or
any Vornado Affiliate (or in any entities holding such direct or indirect
interests) for so long as the stock of Vornado Realty Trust continues to
be listed on the New York Stock Exchange or other nationally recognized
stock exchange and Vornado Realty Trust continues to directly
_____________
dt 173755
;
First Union
As referenced in this Consolidated Mortgage and Security Agreement [Amended and Restated]:
First Union National Bank
– and provisions of any Letter of Credit delivered hereunder shall
be acceptable to Lender in all respects.
(2) "APPROVED BANK" shall mean (A) First Union National Bank
(but only for so long as First Union maintains a credit rating of "A"
or better) and (B) a bank that (A)
_____________
dt 184848
;
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| 1996 |
Contribution Agreement
Contribution Agreement (132K)
Doc #142915: Click preview link for longer preview.
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made and entered as the 22nd day of October,
1996, by and between (i) ISADORE SHOOSTER, HARRY SHOOSTER (Isadore Shooster and
Harry Shooster collectively the "General Partners"), DONALD SHOOSTER, DAVID
SHOOSTER, DANIEL SHOOSTER, MYRA GERSON, RICHARD AND HELAINE GORDON (Husband and
wife), DAVID and MICHELE SALAND (Husband and Wife) and FAIRLESS HILLS S.C.
ASSOCIATES, a Pennsylvania limited partnership, who are (or will be as of
Closing) all of the general and limited partners (collectively, the "Partners")
of City Line Shopping Center Associates, a Pennsylvania limited partnership (the
"Partnership") (the Partners sometimes herein after referred to collectively as
"Contributors"), and (ii) FIRST WASHINGTON REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership (hereinafter referred to as "FWRLP").
W I T N E S S E T H:
WHEREAS, the Partners own, or will own as of Closing, all of the
partnership interests (the "Partnership Interests") of the Partnership; and
WHEREAS, the Partnership is the record and beneficial owner of that certain
parcel of real property as more particularly described on Exhibit A hereto
(collectively, the "Land"), together with the shopping center known as City Line
Shopping Center located in Philadelphia, Pennsylvania, and all other buildings
and improvements situated thereon (collectively, the "Building"), and all
Personal Property (as hereinafter defined) located therein, and all
appurtenances, rights, easements, rights-of-way, tenements and hereditaments
incident thereto (the "Additional Property") (the Land, Building, Personal
Property and Additional Property are hereinafter collectively referred to as the
"Property"); and
WHEREAS, Contributors and FWRLP desire to enter into this Agreement
relating to the contribution by Contributors to FWRLP of Partnership Interests
representing 89% of the capital interests and profits interests in the
Partnership (the "Contributed Interests") in exchange for certain interests in
FWRLP and for the continued ownership and later contribution by Contributors of
the remaining Partnership Interests representing 11% of the capital interests
and profits interests in the Partnership (the "Retained Interests").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Contribution of Contributed Interests. Subject to the terms and
conditions set forth in this Agreement, at the First Closing (as defined below)
Contributors shall contribute the Contributed Interests to FWRLP in exchange for
that number of common limited partnership units of FWRLP (the "Units")
determined as set forth in Section 2
142915
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Sears, Roebuck
As referenced in this Contribution Agreement:
Sears Roebuck – 29-
{PAGE}
in discussions with Pep Boys to relocate from Space A to Space B. The
General Partners have also had discussions with Sears Roebuck & Co. to
lease Space B. FWRLP has expressed a desire to endeavor to lease Space B to
Pep Boys, so that FWRLP
_____________
dt 151625
;
Commercial
As referenced in this Contribution Agreement:
Commercial Settlements, Inc – agent, a deposit (together with interest earned thereon, the "Deposit") of
One Hundred Thousand Dollars ($100,000.00 ) by check payable to the
Commercial Settlements, Inc ., 1413 K Street, N.W., Washington, DC 20005
(the "Title Company").
(b) The Title Company will immediately provide Contributors with
written evidence
_____________
COMMERCIAL SETTLEMENTS, INC – to Paragraph 3 hereof and to
evidence its agreement to serve as escrow agent pursuant to the terms of the
foregoing Agreement.
WITNESS: COMMERCIAL SETTLEMENTS, INC .
By: /s/
- ----------------------------------- --------------------------------
Gerald R. Perras
President
Date: October 23, 1996
-38-
{PAGE}
LIST OF EXHIBITS
EXHIBIT A. Legal Description of Land Recitals
_____________
dt 190758
;
Saul Ewing
As referenced in this Contribution Agreement:
Saul, Ewing – Bala Cynwyd, PA 19004
Telecopy: (610) 668-2243
with a copy to:
Stanley Kull, Esquire
Saul, Ewing , Remick & Saul
3800 Centre Square West
Philadelphia, PA 19102
Telecopy: (215) 972-1857
Such
dt 33462
;
| Isadore Shooster;
Harry Shooster;
More... |
Preview
Full Doc
| 2000 |
Employment and Non-Competition Agreement
Employment and Non-Competition Agreement (38K)
Doc #112847: Click preview link for longer preview.
EMPLOYMENT AND NONCOMPETITION AGREEMENT
---------------------------------------
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the "Agreement") is made and
entered into as of February 1, 2000 by and between Advance Stores Company,
Incorporated, a Virginia corporation (the "Company"), Advance Holding
Corporation, a Virginia corporation ("Holding"), and Lawrence P. Castellani (the
"Executive").
W I T N E S S E T H:
A. The Company and Holding desire to employ Executive as the Chief
Executive Officer and a Director of the Company and Holding on the terms and
conditions hereinafter set forth, and Executive is desirous of accepting said
employment.
B. The Company is engaged in the highly competitive business of marketing
and sale of automotive parts, accessories, and services. During his continued
employment with the Company, Executive will have obligations relating to the
business operations of the Company. Unless otherwise indicated, all references
to the "Company" in this Agreement shall include the business operations of the
Company.
C. Executive is recognized as a leading executive with significant
expertise in the retail industry. Executive will develop in his role with the
Company industry experience and knowledge that will be greatly valued by the
Company and would be extremely valuable to competitors of the Company.
D. For purposes of this Agreement, "Confidential Information" means any
data or information with respect to the business conducted by the Company, that
is material to the Company's business operations and is not generally known by
the public, including business and trade secrets. To the extent consistent with
the foregoing definition, Confidential Information includes without limitation:
(a) reports, pricing, sales manuals and training manuals, selling, purchasing,
and pricing procedures, and financing methods of the Company, together with any
techniques utilized by the Company in designing, developing, testing or
marketing its products, designing stores, locating stores, product mix and
supplier information (including pricing, discounts and the like) or in
performing services for clients, customers and accounts of the Company; and (b)
the business plans and financial statements, reports and projections of the
Company. The Company has granted and will grant Executive access to and
knowledge of the Company's Confidential Information during the course of his
employment with the Company. Executive recognizes and acknowledges that the
Confidential Information which he has acquired and will acquire in the course of
his employment is utilized by the Company in all geographic areas in which the
Company does business. Further, the Confidential Information will also be
utilized in all geographic areas into which the Company expands its business.
Thus, Executive acknowledges that he will be a formidable competitor in all
areas where the Company conducts business. Executive also acknowledges that the
restrictive covenants in this Agreement serve to protect the Company's
investment in the Confidential Information.
{PAGE}
E. Each of Executive and the Company are sophisticated parties experienced
in business transactions of this type, and fully understand (i) the
ramifications of the noncompetition, non-solicitation and confidentiality
restrictions of this Agreement and (ii) that the laws of each state with respect
to the enforceability of such provisions vary. The parties are specifically
selecting the internal laws of the Commonwealth of Virginia to govern this
Agreement in order that it be enforceable against each of them.
NOW, THEREFORE, in consideration of Executive's continued employment with
the Company, the mutual terms and conditions set forth below, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Employment and Term. Subject to the terms and conditions of this
-------------------
Agreement, the Company agrees to employ Executive for a term commencing on
February 1, 2000 (the "Effective Date") and ending January 31, 2002 (the
"Initial Term") or such other date on which such employment shall terminate as
provided herein. The term of this Agreement and Executive's employment hereunder
will automatically be extended for an additional one-year period following the
expiration of the Initial Term and following each year of employment hereunder
after the Initial Term (each, a "Renewal Date"), without further action by
Executive or the Company unless written notice not to renew for an additional
one-year period is given by either the Company or Executive to the other not
less than sixty (60) days prior to the expiration of the Initial Term or any
Renewal Date, as applicable. In the event a notice not to renew is given by one
party to the other as provided in the immediately preceding sentence, then the
automatic extension of the term of this Agreement shall thereafter no longer be
of any further force or effect. Executive will carry out faithfully and to the
best of his abilities such duties and have such responsibilities as would
normally be carried out by the Chief Executive Officer and a Director of a
company, subject to the control of and in accordance with the directives and
policies of the Board of Directors of the Company. The employment of Executive
shall be on an exclusive basis, but Executive may be a passive investor or
otherwise have a passive interest in other businesses, partnerships and entities
so long as such other activities of Executive do not interfere with the
performance of his duties hereunder and so long as such other businesses,
partnerships and entities do not cause Executive to violate the non-competition,
non-solicitation, and confidentiality restrictions of this Agreement.
2. Compensation.
------------
2.1 Salary. The Company shall provide Executive with an annual
------
salary equal to $600,000 payable in equal monthly installments, or such other
schedule established by the Company, less required withholding. The annual
salary will be subject to annual increases upon review by the Board of
Directors. Any such reviews will be made after completion of the Company's
fiscal year, and shall be in the sole discretion of the Board of Directors;
provided, however, that the first such review shall occur in the first quarter
of 2001.
112847
|
Sears, Roebuck
As referenced in this Employment and Non-Competition Agreement:
Sears Roebuck – power of all classes of
common equity stock of Holding, excluding, however, such an acquisition by any
affiliates of Freeman Spogli & Co. LLC, Sears Roebuck & Co. and its affiliates,
or Ripplewood Partners, L.P. and its affiliates; or (ii) a merger or
consolidation of the Company or
_____________
dt 151624
;
Hodgson Russ
As referenced in this Employment and Non-Competition Agreement:
Hodgson, Russ – 362-4911
Fax: (540) 561-1699
11
{PAGE}
With a copy to:
Jim Wadsworth, Esq.
Hodgson, Russ , Andrews, Woods & Goodyear, LLP
One M&T Plaza, Suite 2000
Buffalo, NY 14203-2391
dt 37278
;
Lawrence P. Castellani;
| Advance Stores Company;
Advance Holding Corp.
|
Preview
Full Doc
| 2003 |
Distribution Agreement
Distribution Agreement (130K)
Doc #149194: Click preview link for longer preview.
DISTRIBUTION AGREEMENT
May 14, 2003
Sears Roebuck Acceptance Corp., a Delaware corporation (the "Company"), proposes to issue and sell from time to time its Medium-Term Notes Series VII (the "Notes") in an aggregate initial offering price up to U.S. $1,500,000,000 (or the equivalent in foreign currency or currency units), and agrees with each person serving as an agent pursuant to this Agreement (individually, an "Agent", and collectively, the "Agents") as set forth herein. Subject to the terms and conditions stated herein, the Company hereby (i) appoints each Agent as an agent of the Company for the purpose of soliciting and receiving offers to purchase Notes from the Company and (ii) agrees that whenever it determines to sell Notes directly to any Agent as principal, it will enter into a separate agreement (each a "Terms Agreement"), substantially in the form of Annex I hereto, relating to such sale in accordance with Section 3(b) hereof (unless the Company and such Agent shall otherwise agree).
The Notes will be issued under an indenture, dated as of October 1, 2002 (the "Indenture"), between the Company and BNY Midwest Trust Company, as Trustee (the "Trustee"). The Notes shall have the currency denomination, maturities, annual interest rates (whether fixed or floating), redemption provisions and other terms set forth in the Prospectus referred to below as it may be amended or supplemented from time to time. The Notes will be issued, and the terms and rights thereof established, from time to time by the Company in accordance with the Indenture and the Administrative Procedure attached hereto as Annex II as it may be amended from time to time by written agreement between the Agents and the Company (the "Procedure") and, if applicable, will be specified in a related Terms Agreement.
1. Each of the Company and Sears, Roebuck and Co. ("Sears") represents and warrants to, and agrees with, each Agent that:
(a) A registration statement on Form S-3 (Registration No. 333-92082) in respect of U.S. $9,500,000,000 aggregate principal amount (or the equivalent in foreign currency or currency units) of debt securities of the Company, including the Notes, has been filed with the Securities and Exchange Commission (the "Commission") in the form heretofore delivered to such Agent, excluding exhibits (whether or not incorporated by reference) to such registration statement but including all documents incorporated by reference in the prospectus included therein, and such registration statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement
being hereinafter called a "Preliminary Prospectus;" the various parts of such registration statement, including all exhibits thereto but excluding Form T-1, each as amended at the time such part became effective, being hereinafter collectively called the "Registration Statement"; the prospectus relating to the Notes, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, being hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Securities Act of 1933, as amended (the "Act") as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any supplement to the Prospectus that sets forth only the terms of a particular issue of Notes being hereinafter called a "Pricing Supplement;" any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated therein by reference; and any reference to the Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or supplemented specifically with respect to any Notes sold pursuant to this Agreement, in the form in which it is filed with the Commission pursuant to Rule 424(b) of Regulation C under the Act, including any documents incorporated by reference therein as of the date of such filing);
(b) Except for statements in such documents which do not constitute part of the Registration Statement or the Prospectus pursuant to Rule 412 of Regulation C under the Act and after substituting therefor any statements modifying or superseding such excluded statements (i) the documents incorporated by reference in the Prospectus, on their respective dates of effectiveness or filing with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents, on their respective dates of effectiveness or filing, as the case may be, contained, in the case of documents which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, in the case of documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (ii) any further documents so filed and incorporated by reference in the Prospectus, on their respective dates of effectiveness or filing with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain, in the case of documents which become effective under the Act, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and in the case of documents which are filed under the Exchange Act with the Commission, an untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties contained in this paragraph shall not apply to any statements or omissions made in such documents in reliance upon and in conformity with written information furnished to the Company by any Agent expressly for use in the Prospectus as amended or supplemented to relate to a particular issuance of Notes; the Indenture has been duly qualified under, and conforms in all material respects to the requirements of, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"); and
(c) Except for statements in documents incorporated therein by reference which do not constitute part of the Registration Statement or the Prospectus pursuant to Rule 412 of Regulation C under the Act and after substituting therefor any statements modifying or superseding such excluded statements, as of their respective dates of effectiveness or filing and as of the date hereof the Registration Statement and the Prospectus conformed and conform, and any amendments or supplements thereto will, when they become effective or are filed with the Commission, as the case may be, conform, in all material respects to the requirements of, as applicable, the Act and the Trust Indenture Act, and the respective rules and regulations of the Commission thereunder and, as of the respective dates of their effectiveness or filing with the Commission and as of the date hereof, neither the Registration Statement nor the Prospectus, each as amended or supplemented, contained or contain, and as of the date of any amendment or supplement thereto will contain, an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the representations and warranties contained in this paragraph shall not apply to any statements or omissions in the Registration Statement or the Prospectus as amended or supplemented made in reliance upon and in conformity with written information furnished to the Company by any Agent expressly for use therein.
2. The Company represents and warrants to, and agrees with, each Agent that:
(a) Upon payment therefor as provided herein and in any Terms Agreement, the Notes will have been duly and validly authorized, and (assuming their due authentication by the Trustee) will have been duly and validly issued and will be valid, binding and enforceable obligations of the Company in accordance with their terms, except as the same may be limited by insolvency, bankruptcy, reorganization, moratorium, liquidation, fraudulent conveyance and transfer or other laws similar to, relating to or affecting the enforcement of creditors' rights generally or by general equity principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law), and will be entitled to the benefits of the Indenture; provided, however, that the Company makes no representation as to whether, with respect to any Notes denominated in a currency other than United States dollars, a court located in the United States would grant a judgment relating to the Notes in other than United States dollars, nor as to the date which any such court would utilize for determining the rate of conversion into United States dollars in granting such judgment;
149194
|
BNY
As referenced in this Distribution Agreement:
Bank of New York – for cable transfers in such currency as certified for customs purposes by the Federal Reserve Bank of New York on such date.
Unless otherwise agreed between the Company and each Agent, each Agent shall
Bank of New York, – the "Indenture"), between the Company and BNY Midwest Trust Company, as Trustee (the "Trustee"). The Bank of New York, an affiliate of the Trustee, may perform certain duties of the Trustee described in
Bank of New York – administrative functions described below, in accordance the Letter of Representations from the Company and The Bank of New York to DTC, dated May 12, 2003, and a Medium-Term Note Certificate Agreement, dated August
Bank of New York – a Medium-Term Note Certificate Agreement, dated August 17, 1989 (the "Certificate Agreement") between The Bank of New York and DTC, and the Trustee's obligations (through The Bank of New York) as a
Bank of New York) – between The Bank of New York and DTC, and the Trustee's obligations (through The Bank of New York) as a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
dt 41798
;
Barclays Capital
As referenced in this Distribution Agreement:
Barclays Capital – Agents Designated Hereby:
Accepted in New York, New York, as of the date set forth on the first page of the Distribution Agreement:
Barclays Capital Inc.
Address: 200 Park Avenue
New York, NY 10166
Attn: MTN Trading
Facsimile Transmission No.: (212) 412-7305
By:/s/Pamela Kendall
Authorized
_____________
dt 143442
;
|
Citigroup Global
As referenced in this Distribution Agreement:
Citigroup Global Markets – Avenue
New York, NY 10179
Attn: Mr. Joel Schlesinger
Facsimile Transmission No.: (212) 272-6227
By:/s/Joel Schieslinger
Joel Schieslinger
Authorized Signatory
Citigroup Global Markets Inc.
Address: 388 Greenwich Street
New York, NY 10013
Attn: Medium-Term Note Department
Facsimile Transmission No.: (212) 816-0949
By:/s/Marco
_____________
dt 107591
;
Mayer Brown
As referenced in this Distribution Agreement:
Mayer, Brown – Agents as to the matters set forth in subdivision (a) of this Section 8.
(i) Mayer, Brown , Rowe & Maw, special tax counsel for the Company, shall have furnished to the
dt 36154
;
More... |
| Full Doc
| 2003 |
Form 13f-Hr
Form 13f-Hr (116K)
Doc #277204: This document is immediately available for purchase, but does not have a preview available for viewing.
277204
| | |
| Full Doc
| 2001 |
Form 13f-Hr
Form 13f-Hr (74K)
Doc #277217: This document is immediately available for purchase, but does not have a preview available for viewing.
277217
| | |
Preview
Full Doc
| 2002 |
General Agreement
General Agreement (561K)
Doc #258893: Click preview link for longer preview.
GENERAL AGREEMENT
DATED AS OF NOVEMBER 7, 1994
BY AND AMONG
METROPOLITAN LIFE INSURANCE COMPANY,
AEW PARTNERS, L.P., PARTNERS TOWER, L.P., TOWER LEASING, INC.,
SEARS, ROEBUCK AND CO. AND
ST HOLDINGS, INC.
================================================================================
{PAGE}
GENERAL AGREEMENT
DATED AS OF NOVEMBER 7, 1994
BY ANY AMONG
METROPOLITAN LIFE INSURANCE COMPANY,
AEW PARTNERS, L.P., PARTNERS TOWER, L.P., TOWER LEASING, INC.,
SEARS, ROEBUCK AND CO. AND
ST HOLDINGS, INC.
TABLE OF CONTENTS
Page
SECTION 1 AGREEMENTS AS TO DOCUMENTS...........................................4
1.01 First Loan Documents...............................................4
1.02 Second Loan and Option Documents...................................5
1.03 Further Amendments.................................................6
1.04 Franklin Center Documents..........................................7
1.05 Riverwoods Documents...............................................7
1.06 No Merger..........................................................7
SECTION 2 DEFINITIONS..........................................................8
2.01 Defined Terms......................................................8
2.02 Cross-Referenced Terms............................................15
SECTION 3 RESTRUCTURING AND TRANSFERS OF INTERESTS............................15
3.01 Order of Transactions.............................................15
3.02 Resulting Interests...............................................16
3.03 New Security Arrangements.........................................17
3.04 General Provisions for New Collateral Security Documents..........18
3.05 Continuing Security Arrangements..................................21
3.06 Franklin Center and Riverwoods Transaction........................21
3.07 Consent to the Adoption by FC of a Restated Certificate
of Incorporation................................................22
3.08 Consent to the Adoption by Skydeck of a Restated
Certificate of Incorporation....................................22
SECTION 4 AMENDMENT OF FIRST LOAN.............................................22
4.01 Amended First Notes...............................................22
4.02 Modification of Note Terms........................................22
4.03 Extension of Maturity Date........................................23
4.04 Rate Adjustment; Amended Notes B and C............................27
4.05 Prepayment of First Loan Base Debt................................28
4.06 Redemption of First Loan Further Interest, and Participating
Interest and Additional Participating Interest..................29
4.07 Amendment of First Mortgage.......................................29
4.08 Release of First Mortgage Lien Upon Payment of First Loan
Base Debt.......................................................29
4.09 Forbearance From Foreclosure......................................31
4.10 Rights Assigned to Master Lessee..................................31
4.11 Refinancing and Restructuring.....................................32
SECTION 5 AMENDMENT OF SECOND LOAN AND TOWER OPTION...........................33
5.01 Amended Tower Second Note.........................................33
5.02 Modification of Note Terms........................................33
- i-
{PAGE}
5.03 Amendment of Option Agreement.....................................34
5.04 Amendment of Mortgages............................................34
5.05 Further Advances..................................................35
5.06 Forbearance From Foreclosure......................................35
SECTION 6 Distribution Priorities.............................................35
6.01 Distribution Priorities...........................................35
6.02 Adjustment and Reallocation of Priorities.........................38
6.03 Loan Status Statements............................................39
6.04 Cash Flow and Distribution Statements.............................40
6.05 Payment of Minimum Interest and Additional Interest...............42
6.06 Budget Approval Procedures........................................44
SECTION 7 First Loan Participation............................................46
7.01 Payments of Participating Interest................................46
7.02 Final Participation Determination.................................46
7.03 Determination of Second Lender's, AEW New Lender's and Sears
Distribution Priorities Shares..................................48
7.04 Applications Definitions..........................................49
SECTION 8 TRANSFER EVENTS.....................................................55
8.01 Transfer Events...................................................55
8.02 AEW Transfer Escrow...............................................58
8.03 First Lender Remedies.............................................59
SECTION 9 SEARS/ST RELEASE EVENTS.............................................60
9.01 Sears/ST Release Events...........................................60
9.02 Sears/ST Transfer Escrow..........................................62
9.03 Remedies..........................................................63
9.04 Tower Bankruptcy..................................................66
SECTION 10 INTERCREDITOR AGREEMENTS...........................................67
10.01 General Agreement Controlling.....................................67
10.02 Termination of Earlier Agreements.................................67
10.03 No Impairment of Other Parties' Rights............................67
10.04 Subordination According to Distribution Priorities................68
10.05 Subordination of Tower Second Loan................................68
10.06 Subordination of Tower Option.....................................70
10.07 Subordination of AEW New Loan.....................................70
10.08 Subordination of Sears New Loan and Sears Redevelopment Cost
Obligation......................................................71
10.09 Further Agreements of Lenders and Option Holder...................73
10.10 Exercise of Remedies Under the Amended Second Loan/Option
Documents.......................................................73
10.11 No Cross Default..................................................74
10.12 Exercise of Tower Option by First Lender..........................74
SECTION 11 ST RESTRUCTURING...................................................75
11.01 Restated Articles and Bylaws......................................75
11.02 Issuance and Holding of ST Stock..................................75
11.03 Acknowledgement and Exculpation...................................75
11.04 Directors' and Officers' Liability Insurance......................76
- ii -
{PAGE}
11.05 Additional Agreements Regarding ST Stock..........................76
SECTION 12 GRANTOR TRUST......................................................77
12.01 Establishment of Grantor Trust....................................77
12.02 Transfer of Combined Tower Property...............................77
12.03 Power of Substitution.............................................78
12.04 Distribution Upon Termination.....................................78
12.05 Indemnification from Tower Property...............................79
12.06 Sears Reimbursement for Certain Grantor Trustee Expenses..........79
12.07 Furnishing of Documents...........................................79
SECTION 13 MASTER LEASE.......................................................79
13.01 AEW Master Lessee.................................................79
13.02 MetLife Master Lease..............................................80
13.03 No Assignment of AEW Master Lease.................................81
13.04 Appointment of Receiver...........................................81
13.05 Restrictions on Actions of AEW Master Lessee......................81
13.06 AEW Master Lessee Obligations.....................................81
13.07 Subordination to First Loan.......................................82
13.08 Replacement Master Leases.........................................82
13.09 Sears/ST Covenants Regarding Master Lease.........................82
SECTION 14 NEW LOANS AND CONTRIBUTIONS........................................83
14.01 AEW New Loan......................................................83
14.02 Sears New Loan and Contribution...................................84
14.03 Several Obligations...............................................84
14.04 Restriction on Assignments........................................85
14.05 Funding and Deposit...............................................85
14.06 Payment of First Loan.............................................86
SECTION 15 SEARS REDEVELOPMENT COSTS..........................................86
15.01 Sears Redevelopment Cost Obligation...............................86
SECTION 16 TOWER ACCOUNT AGREEMENTS...........................................87
16.01 Amended CDSR Agreement............................................87
16.02 NLCR Agreement....................................................87
16.03 CRA Agreement.....................................................87
16.04 Investment Account Escrow and Security Agreement..................88
16.05 Capital Improvements Obligation Agreement.........................88
SECTION 17 TOWER LEASING AND OPERATIONS.......................................88
17.01 Assignment and Assumptions........................................88
17.02 Leasing Guidelines and Leasing Plan...............................88
17.03 Tower Management Agreement........................................88
17.04 Ernst & Young Lease...............................................89
17.05 Levy Obligations..................................................89
SECTION 18 SEARS LICENSE AGREEMENT............................................90
SECTION 19 RESTRICTIONS ON TRANSFERS..........................................91
19.01 Restrictions on Sears Transfers...................................91
19.02 Restrictions on ST Transfers......................................91
19.03 Permitted Sears/ST Transfers......................................92
- iii -
{PAGE}
19.04 Identity of Second Lender, Option Holder and AEW New Lender.......92
19.05 Restrictions on PTLP Transfers....................................93
19.06 Restrictions on AEW Master Lease Transfers........................94
19.07 Permitted PTLP Transfers of Tower Second Loan, Tower Option
and AEW New Loan................................................94
19.08 Permitted Transfers of Tower Property.............................94
19.09 Permitted Transfers of Ownership Interests in PTLP................95
19.10 Permitted Transfers of Tower Second Loan After Payment of
First Loan Base Debt............................................95
19.11 Conditions to Permitted PTLP Transfers............................96
19.12 Restrictions Binding on PTLP Successors: Release of
Restrictions....................................................97
19.13 Covenant Against Restructuring....................................97
19.14 Restrictions on Transfers of First Loan...........................98
SECTION 20 GENERAL REPRESENTATIONS AND WARRANTIES.............................99
20.01 Representations and Warranties of Sears and ST....................99
20.02 Representations and Warranties of MetLife........................100
20.03 Representations and Warranties of AEW and PTLP...................101
20.04 Survival of Obligations..........................................102
SECTION 21 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING
SPECIAL PURPOSE ENTITIES................................................102
21.01 Representations and Warranties Regarding ST......................102
21.02 Representations and Warranties Regarding AEW Master Lessee.......102
21.03 Representations and Warranties Regarding PTLP....................103
21.04 Covenants Regarding ST...........................................103
21.05 Covenants Regarding AEW Master Lessee............................105
21.06 Covenants Regarding PTLP.........................................107
SECTION 22 COVENANTS AND AGREEMENTS CONCERNING BANKRUPTCY....................108
22.01 Purpose of Agreement.............................................108
22.02 Grantor Trust....................................................108
22.03 Automatic Stay...................................................109
22.04 Cash Collateral Order............................................110
22.05 Priority Claim To The Extent First Lender Security Decreased.....110
22.06 Perfection of Security Interest in Rents.........................110
22.07 Assignment of Interests to First Lender..........................111
22.08 Assignment of Voting Rights......................................111
22.09 No Renewal of Exclusive Period...................................111
SECTION 23 TAX MATTERS.......................................................112
23.01 Estimated Tax Information........................................112
23.02 Tax Return Information...........................................112
23.03 ST Audit Rights..................................................112
23.04 Cooperation in Tax Disputes......................................113
- iv -
{PAGE}
23.05 Payment of Taxes: Indemnity.....................................113
SECTION 24 REOC REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITY.........114
24.01 Representations and Warranties of AEW and PTLP Concerning REOC
Status.........................................................114
24.02 REOC Covenants...................................................114
24.03 Indemnity and Enforcement........................................116
SECTION 25 RECOURSE, LIMITATIONS ON RECOURSES, WAIVERS AND RELEASES..........116
25.01 Amendments to First Loan Sears/ST Recourse Agreements............116
25.02 Sears/ST Recourse Ageement as to Tower Second Loan/Option........117
25.03 Sears Recourse Provisions........................................117
25.04 AEW/PTLP/TLI Recourse Provisions.................................117
25.05 MetLife Recourse Provisions; Limitation on Liability.............118
25.06 ST Obligations...................................................118
25.07 AEW/PTLP Obligations.............................................118
25.08 Tower Certificates...............................................119
25.09 Release of First Lender by Sears and ST..........................120
25.10 Release of 8econd Lender and Option Holder by Sears and ST.......120
25.11 Release of First Lender by AEW and PTLP..........................120
SECTION 26 NOTICES...........................................................121
SECTION 27 MISCELLANEOUS.....................................................122
27.01 Agreement Not to Raise Certain Defenses..........................122
27.02 Brokerage Commissions............................................123
27.03 No Partnership or Joint Venture..................................123
27.04 No Third Party Beneficiaries.....................................123
27.05 Jurisdiction and Venue...........................................123
27.06 Waiver of Jury Trial.............................................123
27.07 Remedies Cumulative..............................................124
27.08 Severability.....................................................124
27.09 Assignment.......................................................124
27.10 Successors and Assigns...........................................124
27.11 Entire Agreement.................................................124
27.12 Modification, Waiver.............................................124
27.13 Captions.........................................................125
27.14 Singular and Plural..............................................125
27.15 Holidays and Weekends............................................125
27.16 Governing Law....................................................125
27.17 Time is of the Essence...........................................125
27.18 Execution in Counterparts........................................125
SCHEDULE 1 Index of Defined Terms
----------
EXHIBITS
--------
Exhibit A Legal Description of Tower Real Property
Exhibit B MetLife Documents
- v -
{PAGE}
B-1 First Loan Documents
Part 1 Continuing Documents
Part 2 Terminated Documents
Part 3 Superseded Documents
B-2 First Loan Modification Documents
Exhibit C AEW Documents
C-1 Second Loan Documents
Part 1 Continuing Documents
Part 2 Terminated Documents
Part 3 Superseded Documents
C-2 Option Documents
Part 1 Continuing Documents
Part 2 Terminated Documents
Part 3 Superseded Documents
C-3 Second Loan/Option Modification Documents
Exhibit D-1 Two-Party Documents
Exhibit D-2 Special Amendment Documents
Exhibit D-3 Other Amended Transaction Documents
Exhibit E-1 Franklin Center Documents
Exhibit E-2 Riverwood Documents
Exhibit F List of Approved Auditors
Exhibit G List and Priority of Amended Transaction Documents to be
Recorded or Filed
Exhibit H
H-1 Rate Adjustment Calculation for Amended Notes B and C
H-2 Sample Calculation of First Loan Base Debt Prepayment Fee
H-3 Sample Calculation of First Loan Note Prepayment Fee
Exhibit I Sample Interest Calculation for Sixth Distribution Priority
Exhibit J Sample Loan Status Statements
J-1 First Lender Statement
J-2 Second Lender Statement
J-3 Sears Statement
Exhibit K Form of Cash Flow and Distribution Statement
Exhibit K-1 List of Supporting Information for Cash Flow and Distribution
Statements
- vi -
{PAGE}
Exhibit L Fair Market Value Appraisal Procedures
Exhibit M Schedule of Combined Tower Property
M-1 Combined Tower Property
M-2 Excluded Property
Exhibit N Leasing Procedures
N-1 Leasing Guidelines
N-2 Current Leasing Plan
Exhibit O Form of Agreed Cash Collateral Order
Exhibit P Form of Tax Information Statement
Exhibit Q-1 Sears Recourse Provisions
Exhibit Q-2 AEW/PTLP Recourse Provisions
Exhibit Q-3 MetLife Recourse Provisions
- vii -
{PAGE}
GENERAL AGREEMENT
THIS GENERAL AGREEMENT is made and entered into as of the 7th day of
November, 1994, by and among METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation ("MetLife"), AEW PARTNERS, L.P., a Delaware limited partnership
("AEW"), PARTNERS TOWER, L.P., a Delaware limited partnership ("PTLP"), TOWER
LEASING, INC., a Massachusetts corporation ("TLI"), SEARS, ROEBUCK AND CO., a
New York corporation ("Sears"), and ST HOLDINGS, INC., a Delaware corporation
("ST").
RECITALS
A. MetLife made a loan in the original principal amount of $600,000,000
to Sears (as more particularly defined in Section 2.01 hereof, the "First
Loan"), evidenced by three Promissory Notes each dated as of July 2, 1990
(collectively the "First Notes"): (i) Note A in the principal amount of Four
Hundred Million Dollars ($400,000,000); (ii) Note B in the principal amount of
One Hundred Million Dollars ($100,000,000); and (iii) Note C in the principal
amount of One Hundred Million Dollars ($100,000,000). (MetLife and any successor
owner of the First Loan is sometimes herein referred to as the "First Lender.")
B. The First Loan is secured by, among other things, a Mortgage,
Security Agreement and Financing Statement dated as of July 2, 1990 and recorded
in the Office of the Cook County Recorder of Deeds on July 2, 1990 as Document
No. 90314602 (the "First Mortgage") from Sears to MetLife encumbering the real
property legally described in Exhibit A attached hereto together with the
improvements thereon commonly known as "Sears Tower" and the other tangible and
intangible real and personal property described in the granting clauses of the
First Mortgage (the property described in the Exhibit A, the improvements
thereon and the other real property interests described in said granting clauses
are herein collectively referred to as the "Tower Real Property"; the personal
property described in said granting clauses is herein referred to as the "Tower
Personal Property"; and the Tower Real Property and the Tower Personal Property
are herein collectively referred to as the "Tower Property"). The First Notes,
the First Mortgage and all other documents evidencing, securing or defining the
rights and obligations of the parties in respect of the First Loan, all as
listed in Exhibit B-1 attached hereto, are herein collectively referred to as
the "First Loan Documents."
C. Pursuant to a Loan and Security Agreement dated as of July 2, 1990
(the "Second Loan Agreement") among Sears, Tower Holdings, Inc., Franklin Center
Holdings, Inc. and AEW, AEW purchased two notes, each dated as of July 2, 1990,
issued by Sears in the aggregate face amount of Two Hundred Fifty Million
Dollars
{PAGE}
($250,000,000): (i) one Note (the "Tower Second Note") in the face amount of Two
Hundred Seven Million Five Hundred Thousand Dollars ($207,500,000) evidencing
the "Tower Second Loan"; and (ii) one Note (the "Franklin Center Note") in the
face amount of Forty-Two Million Five Hundred Thousand Dollars ($42,500,000)
evidencing the "Franklin Center Loan." The Tower Second Note is secured by,
among other things, a Mortgage and Security Agreement from Sears to AEW dated as
of July 2, 1990 and recorded on July 2, 1990 as Document No. 90314612 and
rerecorded on August 27, 1990 as Document No. 90408731 (the "Second Mortgage"),
encumbering the Tower Property; and the Franklin Center Note is secured by,
among other things, a Mortgage and Security Agreement from Sears to AEW dated as
of July 2, 1990 and recorded on July 2, 1990 as Document No. 90314613 and
rerecorded on August 27, 1990 as Document No. 90408732 (the "Third Mortgage"),
encumbering the Tower Property. The Second Loan Agreement, Tower Second Note,
Second Mortgage and all other documents evidencing, securing or defining the
rights and obligations of the parties in respect of the Tower Second Loan, other
than those documents and instruments relating solely to AEW's security interests
in Franklin Center (as defined herein), all as listed on Exhibit C-1 attached
hereto, are herein collectively referred to as the "Second Loan Documents." (AEW
and any successor owner of the Tower Second Loan, including but not limited to
PTLP, each for such time as it holds the Tower Second Loan, is sometimes
referred to herein as "Second Lender.")
D. Pursuant to an Option and First Refusal Agreement (Tower) dated as
of July 2, 1990, between Sears and AEW, a memorandum of which was recorded on
July 2, 1990 as Document No. 90314611 (the "Option Agreement"), AEW was granted
an option (the "Tower Option") to purchase the Tower Property on the terms and
conditions set forth in the Option Agreement and was also granted certain other
rights, including rights of first refusal, with respect to Tower Property and
ownership interests in the owner, from time to time, of the Tower Property (or
in the beneficiary if the owner is a land trust). The rights of AEW under the
Option Agreement and the obligations of the owner of the Tower Property
thereunder are secured by, among other things a Mortgage and Security Agreement
dated as of July 2, 1990 and recorded on July 2, 1990 as Document No. 90314614
(the "Option Mortgage"), encumbering the Tower Property and subordinate to the
First Mortgage, Second Mortgage and Third Mortgage. The Option Agreement, the
Option Mortgage and all other documents evidencing, securing or defining the
rights and obligations of the parties in respect of the Tower Option, all as
listed on Exhibit C-2 attached hereto, are herein collectively referred to as
the "Option Documents". (AEW or any successor owner of the Tower Option,
including but not limited to PTLP, each for such time as it holds the Tower
Option, is sometimes herein referred to as "Option Holder".
E. Immediately preceding the closing of the First Loan and the Second
Loan, Sears transferred, by Bill of Sale dated as of
- 2 -
{PAGE}
July 2, 1990, certain personal property and intangibles used in the operation of
the business known as the "Chicago Experience and Skydeck" (as more particularly
defined in Section 2.01, the "Skydeck Business") to Skydeck Holdings, Inc., a
Delaware corporation ("Skydeck"), which at that time was a wholly owned
subsidiary of Tower Holdings, Inc., a Delaware corporation ("THI"), which at
that time was a wholly owned subsidiary of Sears; and in connection with the
closing of the First Loan and the Second Loan, Skydeck executed and delivered to
MetLife and AEW certain security agreements granting to MetLife and SEW security
interests in such personal property and intangibles used in the operation of the
Skydeck Business.
F. Immediately following the closing of the First Loan and the Tower Second Loan
and the granting of the Tower Option, Sears executed and delivered: (i) a
Warranty Deed dated as of July 2, 1990, conveying the Tower Real Property to
Chicago Title and Trust Company, not personally but solely as Trustee under a
Trust Agreement dated June 12, 1990, and known as Trust No. 1095841 (said
trustee and any successor trustee is herein referred to as "Land Trustee" and
said Trust and any successor land trust is herein referred to as the "Land
Trust"), of which THI was the sole beneficiary; (ii) an Assignment of Tenant
Leases and Assumption Agreement dated as of July 2, 1990, by which Sears
assigned to THI its right, title and interest as lessor under certain leases
affecting the Tower Property and THI assumed the obligations of the lessor
thereunder; and (iii) a Bill of Sale dated July 2, 1990, conveying certain other
property to THI. THI and the Land Trustee (a) accepted such transfers subject to
the First Loan Documents on the terms and conditions more particularly described
in a certain Consent to Transfer Agreement dated as of July 2, 1990 among Sears,
First Lender, THI, Land Trustee and Skydeck, and (b) received by assignment all
of the right, title and interest of Sears under the Second Loan Documents, the
option Documents and certain other documents and assumed the obligations of
Sears under all such documents, on the terms and conditions more particularly
described in a certain Assignment and Assumption of, and Consent to Assignment
and Assumption of, Loan Agreement, Loan Documents Relating to Tower Property and
Tower Option and First Refusal Agreement dated as of July 2, 1990 among Sears,
AEW, THI, Land Trustee and Skydeck.
G. THI thereafter executed and delivered: (i) an Assignment of
Beneficial Interest dated as of July 19, 1990, by which THI assigned all of the
beneficial interest in the Land Trust to ST, then a wholly owned subsidiary of
THI; (ii) an Assignment of Tenant Leases and Assumption Agreement dated as of
July 19, 1990, by which THI assigned to ST its right, tile and interest as
lessor under certain leases affecting the Tower Property and ST assumed the
obligations of the lessor thereunder; and (iii) a Bill of Sale dated July 19,
1990 conveying certain other property to ST. ST (a) accepted such transfers
subject to the First Loan Documents on the
- 3 -
{PAGE}
terms and conditions more particularly described in a certain Consent to
Transfer Agreement dated as of July 19, 1990 among Sears, First Lender, THI,
Land Trustee, Skydeck and ST, and (b) received by assignment all of the right,
title and interest of THI under the Second Loan Documents, the Option Documents
and certain other documents and assumed the obligations of THI under all such
documents, on the terms and conditions more particularly described in a certain
Assignment and Assumption of, and Consent to Assignment and Assumption of, Loan
Agreement, Loan Documents Relating to Tower Property and Tower Option and First
Refusal Agreement dated as of July 19, 1990 among Sears, AEW, THI, Land Trustee,
Skydeck and ST. THI thereafter was dissolved.
H. On or before the date hereof, AEW has caused to be organized PTLP,
in which AEW is the sole limited partner and Partners Tower Corporation, a
Delaware corporation and a wholly owned subsidiary of AEW, is the sole general
partner, with the intent of transferring to PTLP all right, title and interest
of AEW under the Second Loan Documents and Option Documents and in the Tower
Property.
I. On or before the date hereof, ST has caused Skydeck to transfer to
ST the Skydeck Business and all other assets, tangible and intangible, of
Skydeck and thereafter will cause Skydeck to be dissolved.
J. As of the date hereof, prior to giving effect to the creation of the
Grantor Trust (as defined herein) and the transfers of interests contemplated
hereby: legal title to the Tower Real Property is held by Land Trustee; ST is
the owner of the Tower Personal Property and the sole beneficiary and holder of
the power of direction under the Land Trust; Skydeck is a wholly owned
subsidiary of ST; and Land Trustee and ST are, each individually and the two
collectively, the Tower Owner (as defined herein).
K. The parties hereto desire to make certain modifications and
amendments to the First Loan Documents, Second Loan Documents and Option
Documents, and to enter into certain agreements in connection with the Tower
Property.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
258893
| |
Sonnenschein
As referenced in this General Agreement:
Sonnenschein Nath – President
- 148 -
{PAGE}
in each case,
with copies to: Sears, Roebuck and Co.
233 South Wacker Drive
Chicago, Illinois 60684
Attn: General Counsel
Sonnenschein Nath & Rosenthal
8000 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
Attn: Harold D. Shapiro, Esq.
If to MetLife: Metropolitan Life Insurance
_____________
dt 141180
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| 2004 |
Guarantee
Guarantee (5K)
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310842
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Citibank
As referenced in this Guarantee:
Citibank, N.A. – Sears Roebuck Acceptance Corp., a Delaware corporation (the Company), various financial institutions that are parties thereto from time to time (the Lenders) and Citibank, N.A. , as agent for the Lenders (in such capacity, the Agent), that the principal of all Advances (as defined in the Credit Agreement)
_____________
dt 307437
|
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| 2004 |
Guarantee
Guarantee (3K)
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310854
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Lease
Lease (227K)
Doc #166870: Click preview link for longer preview.
OFFICE LEASE
THIS OFFICE LEASE (this Lease) is entered into and made as of the 13th day of March, 2002, by and between Two Park Center, L.L.C., a Delaware limited liability company, as landlord (Landlord), and American InterContinental University, Inc., a Georgia corporation as tenant (Tenant).
ARTICLE 1
BASIC LEASE PROVISIONS AND LEASE OF PREMISES
1.1 Basic Lease Provisions. The basic terms of this Lease are known as the Basic Lease Provisions, which are set forth below:
A. Base Rent: As provided in Section 3.1.
B. Term: Six (6) years and two (2) months, subject to extension as provided in Article 16 hereof.
C. Commencement Date: May 1, 2002.
D. Premises Location: Portions of the fourth floor of the Building, as depicted on Exhibit C attached hereto, together with a portion of the second floor of the Building in a location to be determined as set forth in Section 2.1 hereof.
E. Tenants Building Expense Percentage: Initially, 10.33%. Upon the occurrence of the First Expansion Date, 15.49%. Upon the occurrence of the Second Expansion Date, 20.99%. Upon the occurrence of the Third Expansion Date, 31.31%.
F. Total Number of Square Feet of Rentable Area in the Building: 193,701.
G. Total Number of Square Feet of Rentable Area in the Premises: Initially, 20,000. Upon the occurrence of the First Expansion Date, 30,000. Upon the occurrence of the Second Expansion Date, 40,650. Upon the occurrence of the Third Expansion Date, 60,650.
H. Addresses for Notices and Payments:
Landlord:
Two Park Center, L.L.C.
c/o The John Buck Company
233 South Wacker Drive
Suite 550
Chicago, Illinois 60606
Attn: Mr. John Q. ODonnell
Address for
Rental Payments:
Two Park Center, L.L.C.
% The John Buck Company
Two Park Center
5550 Prairie Stone Parkway
Hoffman Estates, Illinois 60192
Attn: Building Manager
Copies to:
The John Buck Company
Two Park Center
5550 Prairie Stone Parkway
Hoffman Estates, Illinois 60192
Attn: Building Manager
and to:
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Attn: Vice President, Real Estate
and to
Lend Lease Real Estate Investments, Inc.
UBS Tower
One North Wacker Drive
Suite 800
Chicago, Illinois 60606
Attn: Brian K. Lantz
2
Notices of default to Landlord shall be sent to the first address set forth about in this Section 1.1H, with copies sent to the other addresses set forth above in this Section 1.1H. In addition, copies of default notices shall be sent to Landlords mortgagee. As of the date of this Lease, notices to Landlords mortgagee should be sent to:
Guaranty Bank
8333 Douglas Avenue
Dallas, Texas 75225
Attn: Commercial Real Estate Division
with a copy to:
Guaranty Bank
Three Allen Center
333 Clay Street
Suite 4430
Houston, Texas 77002
Attn: Lee Mitchell
Tenant (prior to
Commencement Date)
c/o Career Education Corporation
2895 Greenspoint Parkway
Suite 600
Hoffman Estates, Illinois 60195
Attn: President
With a copy to:
c/o Career Education Corporation
2895 Greenspoint Parkway
Suite 600
Hoffman Estates, Illinois 60195
Attn: Chief Financial Officer
Tenant (from and after
Commencement Date):
American Intercontinental University On-Line
Two Park Center
5550 Prairie Stone Parkway
Hoffman Estates, Illinois 60192
Attn: President
With a copy to:
c/o Career Education Corporation
2895 Greenspoint Parkway
Suite 600
Hoffman Estates, Illinois 60195
Attn: Chief Financial Officer
I. Security Deposit: None
1.2 Lease of Premises. Landlord, in consideration of the rents and covenants hereinafter set forth, does hereby demise, let and lease to Tenant, and Tenant does hereby hire, take and lease from Landlord, on the terms and conditions hereinafter set forth, the Premises described in Section 1.3C, to have and to hold the same, with all appurtenances, unto Tenant for
3
the term hereinafter specified. Delivery of possession of the Premises shall be made in phases as set forth in Section 2.1 hereof. Notwithstanding anything to the contrary contained in this Lease, in no event shall Tenant shall be obligated to pay Base Rent or Additional Rent with respect to any portion of the Premises until the Term hereof commences with respect to such portion of the Premises as set forth in Section 2.1 hereof. Landlord acknowledges and agrees that the Premises shall be occupied by American InterContinental University On-Line, a division of American InterContinental University, Inc.
1.3 Description of the Project, Building, Premises and Common Areas.
A. The Project. The term Project means that certain office park situated on an approximately 39 acre tract of land (the Land) in the Village of Hoffman Estates, Illinois, legally described on Exhibit A attached hereto. The Project is located within an approximately 780 acre office park commonly known as Prairie Stone. The Project shall consist of the Building (as defined in Section 1.3B hereof) and up to four (4) other office buildings, together with parking decks, parking garages and other related improvements which may hereafter be constructed on the Land. The number of square feet of rentable area of office space at the Project is potentially 900,000. The number of parking spaces at the Project is potentially 3,600. The site plan attached hereto as Exhibit B (the Site Plan) depicts the Project as currently contemplated by Landlord but is not intended to be a representation as to any of the information contained therein or an agreement on the part of Landlord to construct any improvements in or to the Project or to locate any improvements as depicted, except as specifically provided in this Lease. Landlord shall have no obligation to construct any other buildings or other improvements and shall have the right to modify, alter and otherwise change the Project, from time to time, in its discretion, including, without limitation, modifying or deleting buildings, roads, parking and landscaping, provided that Landlord shall not make any alterations to the Project that would permanently, materially and adversely affect Tenants rights to parking, access to the Building or use of the Premises, or increase Tenants costs under this Lease. Notwithstanding the foregoing, Tenant acknowledges that Landlord is currently contemplating an alteration to the Building which would result in the east entrance thereto being closed off from use to the general public. Tenant acknowledges that Landlords actions set forth in the foregoing sentence shall not be deemed to violate Landlords covenants and agreements under this Lease. Landlord agrees to designate approximately fifteen (15) parking spaces on the eastern end of the parking lot adjacent to the western entrance of the Building as visitor parking spaces for the tenants of the Building.
B. The Building. The term Building means the four (4) story office building located in the Project in which the Premises will be located, which office building is designated on the Site Plan as 5550 Prairie Stone Parkway and is referred to as Two Park Center. Any reference in this Lease to the term Building shall include such office building and the land on which it is located, unless the context requires otherwise.
4
C. The Premises. The term Premises means the office space (which, with respect to the portion of the Premises located on the second (2nd) floor of the Building, shall be designated as Suite #250, and which, with respect to the portion of the Premises located on the fourth (4th) floor of the Building, shall be designated as Suite #400) located in an area of the Building which is outlined on the floor plan attached hereto as Exhibit C.
D. The Common Areas. The term Common Areas means the areas of the Building (Building Common Areas) and the Project (Project Common Areas) which are designated by Landlord for use in common by the tenants of the Building or the Project, and their respective employees, agents, customers, invitees and others, and includes, by way of illustration and not limitation, entrances and exits, hallways and stairwells, elevators, rest rooms, sidewalks, skywalks, driveways, parking areas, landscaped areas, and other areas as may be designated by Landlord, from time to time, as part of the Common Areas. Landlord reserves the right to modify, alter and otherwise change the Common Areas in its sole discretion. Tenant shall have the non-exclusive right, in common with others, to use the Building Common Areas, the Project Common Areas, and such portions of Prairie Stone outside of the Project which may, from time to time, be designated pursuant to the Prairie Stone Declaration (as defined in Section 3.2A4) as common areas for the benefit of the owners and tenants of the Project and their respective employees, agents, customers and invitees. Landlord agrees that it shall not make any alterations to the Common Areas that would permanently, materially and adversely affect Tenants rights to parking, access to the Building or use of the Premises, or increase Tenants costs under this Lease.
ARTICLE 2
TERM AND POSSESSION
2.1 Commencement and Expiration. The Term of this Lease shall be the period of time specified in Section 1.1B. The Term shall commence on the Commencement Date as shown in Section 1.1C and shall expire without notice to Tenant at 11:59 P.M. on June 30, 2008 (the Expiration Date), subject to extension as provided in Article 16 hereof. The Term shall commence with respect to the initial portion of the Premises, consisting of approximately 20,000 square feet of rentable area located on the fourth (4th) floor of the building (the Initial Premises) on May 1, 2002. The Term with respect to an additional portion of the Premises consisting of approximately 10,000 square feet of rentable area located on the fourth (4th) floor of the Building (the First Expansion Space) shall commence on August 1, 2002 (the Second Expansion Date). The Term with respect to an additional portion of the Premises consisting of approximately 10,650 square feet of rentable area located on the fourth floor (4th) of the Building (the Second Expansion Space) shall commence on January 1, 2003 (the Second Expansion Date). The Term with respect to an additional portion of the Premises consisting of approximately 20,000 square feet of rentable area located on the second (2nd) floor of the Building (the Third Expansion Space) shall commence no later than July 1, 2003 or sooner upon the mutual agreement of Landlord and Tenant (the Third Expansion Date).
166870
| Two Park Center, L.L.C.;
| American Intercontinental University, Inc.;
Wells Real Estate Fund XIII LP
|
Preview
Full Doc
| 2002 |
Indenture
Indenture (239K)
Doc #310911: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-4.(E)
{SEQUENCE}3
{FILENAME}c70545a2exv4wxey.txt
{DESCRIPTION}INDENTURE DATED AS OF 10/1/02
{TEXT}
{PAGE}
EXHIBIT 4(e)
================================================================================
SEARS ROEBUCK ACCEPTANCE CORP.
AND
BNY MIDWEST TRUST COMPANY,
TRUSTEE
--------------------
INDENTURE
DATED AS OF OCTOBER 1, 2002
--------------------
================================================================================
{PAGE}
SEARS ROEBUCK ACCEPTANCE CORP.
INDENTURE
DATED AS OF OCTOBER 1, 2002
--------------------
TABLE OF CONTENTS*
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
PARTIES ................................................................... 1
RECITALS .................................................................. 1
ARTICLE I
DEFINITIONS OF CERTAIN TERMS
Section 1.1. Definitions ............................................ I-1
Affiliate .............................................. I-1
Authenticating Agent.................................... I-1
Board................................................... I-1
Business Day............................................ I-1
Certified Resolution.................................... I-1
Commission.............................................. I-1
Company................................................. I-1
Currency................................................ I-1
Defaulted Interest...................................... I-1
Depository.............................................. I-2
Dollar.................................................. I-2
Eligible Obligations.................................... I-2
Euro ................................................... I-2
Fixed Charge Coverage and Ownership Agreement........... I-2
Fixed Charge Coverage Ratio ............................ I-2
Foreign Currency........................................ I-2
Global Security......................................... I-3
Holder ................................................. I-3
Indenture............................................... I-3
Interest................................................ I-3
Interest Payment Date................................... I-3
Market Exchange Rate.................................... I-3
Maturity ............................................... I-3
Officers' Certificate................................... I-3
Opinion of Counsel. .................................... I-4
Original Issue Discount Security........................ I-4
Outstanding ............................................ I-4
Person.................................................. I-4
Redemption Date......................................... I-4
Redemption Price........................................ I-4
Regular Record Date..................................... I-5
Responsible Officer..................................... I-5
Sears................................................... I-5
Securities.............................................. I-5
Security Register ...................................... I-5
Special Record Date .................................... I-5
{/TABLE}
----------
* This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
{PAGE}
{TABLE}
{S} {C}
Stated Maturity ........................................ I-5
Subsidiary; Voting Stock................................ I-5
Trustee................................................. I-5
U.S. Government Obligations ............................ I-6
SECTION 1.2. Trust Indenture Act definitions controlling............. I-6
ARTICLE II
THE SECURITIES
SECTION 2.1. Amount Unlimited; Issuable in Series; Forms Generally;
Form of Trustee's Certificate of Authentication.... II-1
SECTION 2.2. Denominations........................................... II-3
SECTION 2.3. Execution, Authentication, Delivery and Dating ......... II-3
SECTION 2.4. Temporary Securities ................................... II-4
SECTION 2.5. Registration, Registration of Transfer and Exchange. ... II-4
SECTION 2.6. Mutilated, Destroyed, Lost and Stolen Securities ....... II-5
SECTION 2.7. Payment of Interest; Interest Rights Preserved.......... II-6
SECTION 2.8. Persons Deemed Owners .................................. II-7
SECTION 2.9. Cancellation............................................ II-7
SECTION 2.10. Securities Issuable as a Global Security ............... II-7
SECTION 2.11. Currency of Payments in Respect of Securities .......... II-8
SECTION 2.12. Availability of Currency of Payment in Respect of
Securities ........................................ II-8
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1. Payment of principal and interest ...................... III-1
SECTION 3.2. Maintenance of office or agency for notices and demands III-1
SECTION 3.3. File certain reports and information with the Trustee
and the Securities And Exchange Commission ........ III-1
Transmit to Holders summaries of certain documents filed
with the Trustee .................................. III-2
Furnish list of Holders to the Trustee.................. III-2
SECTION 3.4. File statement by officers annually with the Trustee.... III-2
SECTION 3.5. Duties of paying agent.................................. III-2
SECTION 3.6. Certain restrictions.................................... III-3
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 4.1. Applicability of Article................................ IV-1
SECTION 4.2. Election to Redeem; Notice to Trustee................... IV-1
SECTION 4.3. Selection by Trustee of Securities to Be Redeemed....... IV-1
SECTION 4.4. Notice of Redemption.................................... IV-1
SECTION 4.5. Deposit of Redemption Price............................. IV-2
SECTION 4.6. Securities Payable on Redemption Date................... IV-2
SECTION 4.7. Securities Redeemed in Part............................. IV-2
ARTICLE V
SINKING FUNDS
SECTION 5.1. Applicability of Article................................ V-1
SECTION 5.2. Satisfaction of Sinking Fund Payments with Securities... V-1
SECTION 5.3. Redemption of Securities for Sinking Fund............... V-1
ARTICLE VI
REMEDIES UPON DEFAULT
SECTION 6.1. Defaults defined -- acceleration of maturity upon
default -- waiver of default....................... VI-1
{/TABLE}
ii
{PAGE}
{TABLE}
{S} {C}
SECTION 6.2. Covenant of Company to pay to Trustee whole amount due
on default in payment of principal or interest --
Trustee may recover judgment for whole amount due
-- application of moneys received by the Trustee... VI-3
SECTION 6.3. Trustee may enforce rights of action without possession
of Securities...................................... VI-4
SECTION 6.4. Delays or omissions not to impair any rights or powers
accruing upon default.............................. VI-4
SECTION 6.5. In event of default Trustee may protect and enforce its
rights by appropriate proceedings -- holders of a
majority in principal amount of Securities of a
particular series may waive default................ VI-5
SECTION 6.6. Holders of a majority in principal amount of Securities
of a particular series may direct exercise of
remedies........................................... VI-5
SECTION 6.7. Limitation on suits by Holders.......................... VI-5
SECTION 6.8. No Securities owned or held by or for the account of the
Company to be deemed outstanding for purpose of
payment or distribution............................ VI-6
SECTION 6.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings....... VI-6
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.1. Evidence of action by Holders........................... VII-1
SECTION 7.2. Proof of execution of instruments and holding of
Securities......................................... VII-1
SECTION 7.3. Who may be deemed owners of Securities.................. VII-2
SECTION 7.4. Securities owned by Company or its affiliates
disregarded for certain purposes................... VII-2
SECTION 7.5. Action by Holders binds future Holders.................. VII-2
ARTICLE VIII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 8.1. No recourse against incorporators or others............. VIII-l
ARTICLE IX
MERGER, CONSOLIDATION OR SALE
SECTION 9.1. Merger, consolidation, sale or conveyance of property
not prohibited except under certain conditions --
execution of supplemental indenture ............... IX-1
SECTION 9.2. Rights and duties of successor corporation.............. IX-1
Issuance of Securities by successor corporation......... IX-1
SECTION 9.3. Opinion of Counsel to Trustee........................... IX-1
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.1. Acceptance of Trust .................................... X-l
Trustee not relieved from liability for negligence or
misconduct......................................... X-l
Trustee not responsible for validity or execution of
Indenture or of Securities or for recitals in
Indenture or Securities............................ X-l
Trustee may rely upon documents believed genuine -- may
consult with counsel -- may accept officers'
certificates -- may require indemnity -- not to be
liable for action taken in good faith.............. X-2
Prior to default and after curing of defaults Trustee
not bound to investigate unless requested by
Holders of majority in principal amount of
Securities of a series -- may require
indemnification.................................... X-2
Trustee may execute trusts or powers directly or by
310911
|
BNY
As referenced in this Indenture:
Bank of New
York – the noon buying rate in New York City for cable transfers in such
currency as certified for customs purposes by the Federal Reserve Bank of New
York on such date.
Maturity
The term "Maturity", when used with respect to any Security, shall mean
the date on which the principal of
_____________
Bank of New York, – writing and may be served or presented, and such demands may be made, at the
designated office of the Trustee, c/o The Bank of New York, 101 Barclay St.,
Floor 8W, New York, NY, 10286, attention: Corporate Trust Administration. Any
notice to or demand upon the Company shall
_____________
dt 306069
;
| Sears Roebuck Acceptance Corp.;
BNY Midwest Trust Company
|
Preview
Full Doc
| 2003 |
License Agreement
License Agreement (137K)
Doc #150371: Click preview link for longer preview.
This Agreement made as of the 1st day of January, 2003
BETWEEN:
SEARS CANADA INC., incorporated under the laws of Canada, having
its head office in the City of Toronto, Province of Ontario
(hereinafter called "Sears")
OF THE FIRST PART
AND
SEARS ROEBUCK AND CO., incorporated under the laws of New York,
United States of America,
(hereinafter called "Owner")
OF THE SECOND PART
AND
CPI CORP. incorporated under the laws of Ontario,
having its head office in the City of Brampton, Province of
Ontario
(hereinafter called "Licensee")
OF THE THIRD PART
WHEREAS Sears is a national retailer offering goods and services
to its customers through general merchandise retail department
stores, outlet stores, free standing speciality stores, dealer
stores, catalogues, direct marketing media and the Internet;
AND WHEREAS Sears wishes to provide, market and offer
for sale portraiture and related goods and services, under the
Sears Trademark, through its retail marketing channels, including
but not limited to, general merchandise retail department stores,
outlet stores, free standing speciality stores, select direct
marketing media and on its Internet web site;
AND WHEREAS Licensee has represented to Sears that it
is fully qualified, experienced, licensed, capitalized, staffed
and equipped to successfully establish and operate a Concession
for the purpose of procurement, presentation, merchandising,
marketing and sale of the Products and Services contemplated
by this Agreement;
1
AND WHEREAS Licensee is desirous to operate a Concession
on behalf of Sears for the purpose of procurement, presentation,
merchandising, marketing and sale of the Products and Services
contemplated by this Agreement through Designated Marketing Channels,
in Designated Markets, Designated Stores and Licensed Departments
under the Sears Trademark;
AND WHEREAS Sears has approved Licensee to provide and
sell the Products and Services under the name "Sears Portrait
Studio";
AND WHEREAS Licensee represents and warrants that all
information set forth in any and all applications, financial
statements and submissions to Sears is true, complete and accurate
in all material respects, and Licensee expressly acknowledges that
Sears is relying upon the truthfulness, completeness and accuracy
of such information;
AND WHEREAS the parties agree that under this License
Agreement Sears is not offering a Franchise nor is the Licensee
operating a Franchise as defined under any federal or provincial
act or legislation;
AND WHEREAS the parties hereto desire to set forth in
writing the terms, provisions and conditions governing their
relationship.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in
consideration of the mutual covenants and agreements contained
herein and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties
hereto, hereby mutually covenant and agree as follows:
1.0 DEFINITIONS
-----------
1.1 The following words and phrases used in this Agreement
shall have the following meanings:
"AGREEMENT" means this agreement and any and all
subsequent amendments to this agreement including all
of the attached Schedules and any other documents
specifically incorporated by reference herein;
"CHANGE OF CONTROL" means any of, the transfer or
issue by sale, assignment, disposition, operation of
law or otherwise of any shares, voting rights or
interests which would result in any change in the
effective control of fifty percent (50%) or more of
the voting power entitled to vote in the election of
the Board of Directors of Licensee's parent
corporation, CPI Corp. a Delaware corporation;
"CHANGE OF PRACTICES" means any change in
operational processes and practices, merchandise
assortments, presentation and/or advertising methods,
pricing policies and/or customer service policies
and practices that, in Sears sole opinion, is a
material change in Licensee's current and/or originally
proposed merchandising and marketing strategy for the
operation of the Concession;
150371
|
CPI
As referenced in this License Agreement:
}CPI CORP –
{DOCUMENT}
{TYPE}EX-10.64
{SEQUENCE}7
{FILENAME}exhibit1064canada.txt
{DESCRIPTION}CPI CORP SEARS LICENSE AGREEMENT WITH SEARS CANADA
{TEXT}
(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.64
SEARS LICENSE AGREEMENT
-----------------------
This Agreement
_____________
CPI CORP – SEARS ROEBUCK AND CO., incorporated under the laws of New York,
United States of America,
(hereinafter called "Owner")
OF THE SECOND PART
AND
CPI CORP . incorporated under the laws of Ontario,
having its head office in the City of Brampton, Province of
Ontario
(hereinafter called "Licensee")
OF
_____________
CPI Corp – 50%) or more of
the voting power entitled to vote in the election of
the Board of Directors of Licensee's parent
corporation, CPI Corp . a Delaware corporation;
"CHANGE OF PRACTICES" means any change in
operational processes and practices, merchandise
assortments, presentation and/or advertising methods,
pricing
_____________
CPI Corp – B06 - 311B
Sears Merchandise Group
3333 Beverly Road
Hoffman Estates,
Illinois, U.S.A. 60176
Facsimile Number: (708) 286-4511
To Licensee at: CPI Corp .
46 Hedgedale Road
Brampton, Ontario
L6T 5L2
Attention: Vice-President and General
Manager
Facsimile Number: (905) 455-7593
And a copy to:
_____________
CPI Corp – Corp.
46 Hedgedale Road
Brampton, Ontario
L6T 5L2
Attention: Vice-President and General
Manager
Facsimile Number: (905) 455-7593
And a copy to: CPI Corp .
1706 Washington Avenue
St Louis, Missouri, U.S.A. 63103
Attention: President, Portrait Studio
Division
Facsimile Number: (314) 231-8150
And a
_____________
dt 223951
;
| Sears Canada Inc.
|
Preview
Full Doc
| 2002 |
License Agreement
License Agreement (69K)
Doc #326122: Click preview link for longer preview.
LICENSE AGREEMENT
*** Confidential treatment has been requested as to certain portions of this
agreement. Such omitted confidential information has been filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, and the Commission's rules and
regulations promulgated under the Freedom of Information Act, pursuant to a
request of confidential treatment.
This License Agreement (this "Agreement") is made and entered
into as of June 8, 2000, by and between Senetek PLC, a British public limited
company with offices located at 620 Airpark Road, Napa, California 94558
("Senetek"), and Revlon Consumer Products Corporation, a Delaware corporation
with offices located at 625 Madison Avenue, New York, New York 10022, and its
direct and indirect subsidiaries ("Revlon").
BACKGROUND
A. Senetek has developed and holds certain Patents (as defined
below) relating to the use as a skin care product of formulations containing
Kinetin.
B. Revlon desires to manufacture, market and sell in the Mass
Market (as defined below) specific formulations containing Kinetin and analogs
thereof, except Zeatin, for use as a skin care product.
C. Senetek is willing to grant Revlon the right to
manufacture, market and sell such formulations in such market all as set forth
in this Agreement.
D. Simultaneously with the execution of this Agreement,
Senetek is issuing to Revlon a warrant to purchase securities of Senetek.
Accordingly, in consideration of the mutual promises,
covenants, and conditions set forth below, the parties agree as follows:
1. DEFINITIONS
When used in this Agreement, each of the following capitalized
terms shall have the respective meaning set forth in this Article.
1.1 "Advertising and Promotional Expenses" means reasonable costs of
advertising, including media (including fees of Revlon's in-house advertising
agency (Tarlow Advertising) as actually recorded and reported at up to 15% of
media cost), point of purchase and other advertising and consumer spending,
merchandise displays, market research costs, including reasonable concept and
consumer testing costs, reasonable talent fees, reasonable direct mail costs,
reasonable couponing costs, free sample insert and magazine insert costs, costs
for the development and manufacture of non-revenue items such as trial sizes,
testers and samples, costs for public relations events and expenses, trade
related spending such as trade allowances, trade shows and in-store promotional
events, and selling expenses such as the cost of sell sheets and similar
materials.
1.2 "Affiliate" means (a) any company beneficially owned or controlled to
the extent of at least fifty percent (50%) of its issued and voting or equity
capital securities by a party to this Agreement and any other company so owned
or controlled (directly or indirectly) by any such company or the owner of any
such company, or (b) any partnership, joint venture or other entity directly or
indirectly controlled by, controlling, or under common control of, to the extent
of fifty percent (50%) or more of voting power (or otherwise having power to
control its general
{PAGE}
activities) by a party to this Agreement, but in each case only for so long as
such ownership or control shall continue.
1.3 "Agreement Date" means the date of this Agreement first set forth
above.
1.4 "Best Efforts" shall mean that commercially reasonable degree of
effort, expertise, knowledge and resources which one skilled, able, familiar
with and experienced in the matters set forth herein would utilize and otherwise
apply with respect to fulfilling a like obligation subject to existing legal,
contractual and other restrictions.
1.5 "Calendar Quarter" means a period beginning on the first day of
January, April, July or October and ending on the last day of March, June,
September, or December, respectively.
1.6 "Color Cosmetics" means a product applied to the skin, hair or nails
primarily for purposes of decoration and not primarily for the amelioration of
the effects of aging.
1.7 "Combination Products" means Products that include in addition to
Kinetin (i) an "active ingredient" in a formula that is either patent pending or
patented by Revlon or an Affiliate of Revlon or (ii) an "active ingredient" that
is licensed or purchased in exchange for material consideration from a party
other than Senetek, Revlon or an Affiliate of Revlon.
1.8 "Contract Year" means a period beginning on any July 1 during the Term
and ending on the first to occur of the day before June 30 of the next year and
the termination of this Agreement; provided, however, that the first Contract
Year shall include the period between the date of this Agreement and June 30,
2002.
1.9 "Disclosure Schedule" means Schedule 1.9.
------------
1.10 "Documentation" means the documentation relating to the Patents and
Know-How identified in Schedule 1.10.
-------------
1.11 "Final Adjudication" means any decision by a Governmental Entity of
competent jurisdiction if either (a) any and all appeals (including to other
Governmental Entities of competent jurisdiction) in connection with the
adjudication are exhausted or (b) the time for any such appeal shall have passed
without such appeal having been perfected.
1.12 "Finished Form" means manufactured in accordance with the
Specifications.
1.13 "Government Entity" means any competent governmental agency, board,
authority, commission, court or other governmental entity having lawful
jurisdiction.
1.14 "Improvement" means any information, discovery, creation, derivative
work, invention, or trade secret, whether or not patented or patentable or
copyrighted or copyrightable, that relates to or is based upon the Patents or
Know-How and is developed or otherwise acquired by Senetek or its Affiliates to
the extent that such Improvement is not subject to an agreement or commitment
precluding Senetek from making it available to Revlon (i) in the case of
technology developed by Senetek or an Affiliate of Senetek, if such agreement or
commitment is in effect on
2
{PAGE}
the date of this Agreement and disclosed in the Disclosure Schedule or (ii) in
the case of technology acquired other than from an Affiliate of Senetek, if such
agreement or commitment is in effect with respect to the technology before it is
acquired by Senetek or as a condition to acquisition by Senetek (it being
understood that Senetek will not act in bad faith to induce the creation of such
326122
|
Sears, Roebuck
As referenced in this License Agreement:
Sears, Roebuck & Co – shall be construed to exclude internet sales by other licensees of Senetek or by
Senetek.
If Revlon enters into a binding agreement with Sears, Roebuck & Co . ("Sears")
for the sale of cosmetics to Sears in its full line stores (which agreement does
not preclude the sale of Products
_____________
dt 630532
;
Senetek
As referenced in this License Agreement:
Senetek PLC, – a
request of confidential treatment.
This License Agreement (this "Agreement") is made and entered
into as of June 8, 2000, by and between Senetek PLC, a British public limited
company with offices located at 620 Airpark Road, Napa, California 94558
("Senetek"), and Revlon Consumer Products Corporation, a
_____________
Senetek PLC. – consistent with industry practice:
"Licensed from Senetek. Pat.
6
{PAGE}
Nos. 5,371,089, 5,602,139 & others." or "Sold under license from Senetek PLC.
Pat. Nos. 5,371,089, 5,602,139 & others."
3. REPRESENTATIONS, WARRANTIES AND CERTAIN COVENANTS OF THE PARTIES
3.1 Representations, Warranties
_____________
Senetek PLC
– New York 10022
Attn.: Senior Vice President and General Counsel
Facsimile: (212) 527-5693
All Notices to Senetek shall be addressed as follows:
Senetek PLC
620 Airpark Road
Napa, California 94553
Attn: Frank Massino
14
{PAGE}
Facsimile: (707) 257-8193
and
Latham & Watkins
1001 Pennsylvania Avenue, N.
_____________
SENETEK, PLC
– of the Agreement Date.
15
{PAGE}
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Wade H. Nichols
-----------------------------------------
Name: Wade H. Nichols
---------------------------------------
Title: Executive Vice President
--------------------------------------
SENETEK, PLC
By: /s/ Frank J. Massino
--------------------------------------------------
Name: Frank J. Massino
---------------------------------------
Title: Chairman and Chief Executive Officer
----------------------------------------
16
{PAGE}
SCHEDULE 1.9
DISCLOSURE SCHEDULE
_____________
dt 648834
;
|
Latham & Watkins
As referenced in this License Agreement:
Latham & Watkins – shall be addressed as follows:
Senetek PLC
620 Airpark Road
Napa, California 94553
Attn: Frank Massino
14
{PAGE}
Facsimile: (707) 257-8193
and
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20004
Attn.: Kevin C. Boyle
Facsimile: 202-637-2201
Either party may
_____________
dt 629719
;
Revlon Consumer Products Corporation
|
Preview
Full Doc
| 2002 |
License Agreement [Amendment No. 1]
License Agreement [Amendment No. 1] (7K)
Doc #326126: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.54
{SEQUENCE}9
{FILENAME}dex1054.txt
{DESCRIPTION}FIRST AMENDMENT TO LICENSE AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 10.54
FIRST AMENDMENT TO LICENSE AGREEMENT
*** Confidential treatment has been requested as to certain portions of this
agreement. Such omitted confidential information has been filed separately with
the Securities and Exchange Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as amended, and the Commission's rules and
regulations promulgated under the Freedom of Information Act, pursuant to a
request of confidential treatment.
This FIRST AMENDMENT made as of the 1st day of February, 2001 by and between
Revlon Consumer Products Corporation ("Revlon") and Senetek, PLC ("Senetek")
amending the license agreement dated June 8, 2000 between the parties hereto
(the "Agreement").
W I T N E S S E T H :
WHEREAS, Revlon and Senetek desire to amend the Agreement to add an additional
Market Channel.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, Revlon and Senetek agree as follows:
1. Unless otherwise indicated herein, all capitalized terms are defined as set
forth in the Agreement.
2. Section 8.3 of the Agreement shall be amended by the addition of the
following at the end of the current Section 8.3:
"In the event Revlon pays royalties in respect of a Contract Year pursuant
to (a) or (b) in an amount at least equal to the Minimum Royalty for the
Mass Market Channel alone on Schedule 2.1 but less than the Minimum Royalty
for the Mass Market Channel with Additional Market Channel on Schedule 2.1
for such year (the amount by which the royalty paid is less than the
Minimum Royalty for the Mass Market Channel with Additional Market Channel
shall be referred to as the "Shortfall Amount"), then, if Revlon elects not
to pay any Shortfall Amount to Senetek, Senetek may terminate Revlon's
rights with respect to the Additional Market Channel; provided that any
royalties paid to Senetek for preceding Contract Years in excess of the
Minimum Royalty for the Mass Market Channel with the Additional Market
Channel shall be applied to any Shortfall Amount with any amount not so
applied available to be applied to any Shortfall Amount for future Contract
Years."
3. Schedules 1.19, 1.20 and 2.1 are deleted from the Agreement and replaced
with Amended Schedules 1.19, 1.20 and 2.1 attached hereto and made a part
hereof.
4. Except as otherwise expressly stated herein, all terms and conditions of
326126
|
Sears, Roebuck
As referenced in this License Agreement [Amendment No. 1]:
Sears, Roebuck & Co – shall be construed to
exclude internet sales by other licensees of Senetek or by Senetek.
If Revlon enters into a binding agreement with Sears, Roebuck & Co . ("Sears")
for the sale of cosmetics to Sears in its full line stores (which agreement does
not preclude the sale of Products
_____________
dt 630533
;
|
Senetek
As referenced in this License Agreement [Amendment No. 1]:
Senetek, PLC – Information Act, pursuant to a
request of confidential treatment.
This FIRST AMENDMENT made as of the 1st day of February, 2001 by and between
Revlon Consumer Products Corporation ("Revlon") and Senetek, PLC ("Senetek")
amending the license agreement dated June 8, 2000 between the parties hereto
(the "Agreement").
W I T N E S S E T H :
WHEREAS, Revlon and Senetek
_____________
Senetek, PLC
– Agreement shall remain unchanged and in full force and effect.
IN WITNESS HEREOF, the parties hereto have duly executed this First Amendment as
of the date first written above.
{PAGE}
Senetek, PLC
By: /s/ Frank J. Massino
-----------------------------------------
Title: CEO
--------------------------------------
Revlon Consumer Products Corporation
By: /s/ J. Nugent
-----------------------------------------
Title: CEO
--------------------------------------
{PAGE}
SCHEDULE 1.19
"*Filed Separately with the Commission*"
{PAGE}
SCHEDULE 1.
_____________
dt 1484944
|
Preview
Full Doc
| 2003 |
Loan and Security Agreement
Loan and Security Agreement (271K)
Doc #154348: Click preview link for longer preview.
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement dated April 17, 2003 is entered into by and between Congress Financial Corporation (New England), a Massachusetts corporation ("Lender") and Swank, Inc., a Delaware corporation ("Borrower").
W I T N E S S E T H:
WHEREAS, Borrower has requested that Lender enter into financing arrangements with Borrower pursuant to which Lender may make loans and provide other financial accommodations to Borrower; and
WHEREAS, Lender is willing to make such loans and provide such financial accommodations on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1- DEFINITIONS
For purposes of this Agreement, the following terms shall have the respective meanings given to them below:
1.1
"AVT" shall mean, collectively, AV Thomas and its Affiliates, each a manufacturer of leather goods located in Chennai, India
1.2
Accounts" shall mean all present and future rights of Borrower to payment of a monetary obligation, whether or not earned by performance, which is not evidenced by chattel paper or an instrument, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a secondary obligation incurred or to be incurred, or (d) arising out of the use of a credit or charge card or information contained on or for use with the card.
1.3
"Adjusted Eurodollar Rate" shall mean, with respect to each Interest Period for any Eurodollar Rate Loan, the rate per annum (rounded upwards, if necessary, to the next one-sixteenth (1/16) of one (1%) percent) determined by dividing (a) the Eurodollar Rate for such Interest Period by (b) a percentage equal to: (i) one (1) minus (ii) the Reserve Percentage. For purposes hereof, "Reserve Percentage" shall mean the reserve percentage, expressed as a decimal, prescribed by any United States or foreign banking authority for determining the reserve requirement which is or would be applicable to deposits of United States dollars in a non-United States or an international banking office of Reference Bank used to fund a Eurodollar Rate Loan or any Eurodollar Rate Loan made with the proceeds of such deposit, whether or not the Reference Bank actually holds or has made any such deposits or loans. The Adjusted Eurodollar Rate shall be adjusted on and as of the effective day of any change in the Reserve Percentage
1.4
"Affiliate" shall mean, with respect to a specified Person, any other Person which directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such Person, and without limiting the generality of the foregoing, includes (a) any Person which beneficially owns or holds five (5%) percent or more of any class of Voting Stock of such Person or other equity interests in such Person, (b) any Person of which such Person beneficially owns or holds five (5%) percent or more of any class of Voting Stock or in which such Person beneficially owns or holds five (5%) percent or more of the equity interests and (c) any director or executive officer of such Person. For the purposes of this definition, the term "control" (including with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by agreement or otherwise.
1.5
"Applicable Margin" shall mean, at any time, as to the Interest Rate for Prime Rate Loans and the Interest Rate for Eurodollar Rate Loans, the applicable percentage (on a per annum basis) set forth below if either the Quarterly Average Excess Availability for the immediately preceding fiscal quarter is at or within the amounts indicated for such percentage or the Leverage Ratio as of the last day of the immediately preceding fiscal quarter (which ratio for this purpose shall be calculated based on the four (4) immediately preceding fiscal quarters) is at or within the levels indicated for such percentage:
154348
|
Federated
As referenced in this Loan and Security Agreement:
Federated Department Stores, Inc – Inc., Sears Roebuck & Company and J.C. Penney Company; and "Specified 20% Account Debtors" means and includes each of the following account debtors: Federated Department Stores, Inc ., May Department Stores Company and Target Corp.;
(o)
such Accounts are not owed by an account debtor who has Accounts unpaid more
_____________
dt 651030
;
J.C. Penney
As referenced in this Loan and Security Agreement:
J.C. Penney Co – 15% Account Debtors" means and includes each of the following account debtors: TJX Companies, Inc., Kohls, Dillards, Saks Inc., Sears Roebuck & Company and J.C. Penney Co mpany; and "Specified 20% Account Debtors" means and includes each of the following account debtors: Federated Department Stores, Inc., May Department Stores Company
_____________
dt 130660
;
|
Lucent
As referenced in this Loan and Security Agreement:
Lucent Technologies Inc. – Property covered by such Intellectual Property Agreement, for so long as such prohibition exists in such Intellectual Property Agreement and (ii) Borrower's rights under the equipment lease agreement between Lucent Technologies Inc. , as lessor, and Borrower, as lessee, more particularly described on Schedule 8.15 to the Information Certificate, for so long as such equipment lease expressly prohibits by its terms
_____________
dt 1441914
;
McGraw-Hill Companies
As referenced in this Loan and Security Agreement:
McGraw-Hill Companies, Inc – of America or the District of Columbia and rated at least A-1 by Standard & Poor's Ratings Service, a division of The McGraw-Hill Companies, Inc . or at least P-1 by Moody's Investors Service, Inc.; (d) repurchase obligations with a term of not more than thirty (
_____________
dt 310889
;
More... |
Preview
Full Doc
| 2002 |
Loan and Security Agreement
Loan and Security Agreement (503K)
Doc #395389: Click preview link for longer preview.
LOAN AND SECURITY AGREEMENT
by and among
SUPREME INTERNATIONAL, INC.
JANTZEN, INC.
as Borrowers
and
PERRY ELLIS INTERNATIONAL, INC.
PEI LICENSING, INC.
JANTZEN APPAREL CORP.
BBI RETAIL, L.L.C.
SUPREME MUNSINGWEAR CANADA INC.
SUPREME REAL ESTATE I, LLC
SUPREME REAL ESTATE II, LLC
SUPREME REALTY LLC
PERRY ELLIS REAL ESTATE CORPORATION
as Guarantors
CONGRESS FINANCIAL CORPORATION (FLORIDA)
as Agent
and
THE LENDERS FROM TIME TO TIME PARTY HERETO
as Lenders
Dated: As of October 1, 2002
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C}
SECTION 1. DEFINITIONS .............................................................................. 1
SECTION 2. CREDIT FACILITIES......................................................................... 31
2.1 Loans.................................................................................... 31
2.2 Letter of Credit Accommodations.......................................................... 32
2.3 Commitments.............................................................................. 36
SECTION 3. INTEREST AND FEES......................................................................... 36
3.1 Interest................................................................................. 36
3.2 Fees..................................................................................... 38
3.3 Changes in Laws and Increased Costs of Loans............................................. 39
SECTION 4. CONDITIONS PRECEDENT...................................................................... 41
4.1 Conditions Precedent to Initial Loans and Letter of Credit Accommodations................ 41
4.2 Conditions Precedent to All Loans and Letter of Credit Accommodations.................... 43
SECTION 5. GRANT AND PERFECTION OF SECURITY INTEREST................................................. 43
SECTION 6. COLLECTION AND ADMINISTRATION............................................................. 49
6.1 Borrowers' Loan Accounts................................................................. 49
6.2 Statements............................................................................... 49
6.3 Collection of Accounts................................................................... 49
6.4 Payments................................................................................. 50
6.5 Authorization to Make Loans.............................................................. 53
6.6 Use of Proceeds.......................................................................... 54
6.7 Appointment of Borrower Agent as Agent for Requesting Loans and Receipts of Loans
and Statements........................................................................... 54
6.8 Pro Rata Treatment....................................................................... 55
6.9 Sharing of Payments, Etc. ............................................................... 55
6.10 Settlement Procedures.................................................................... 56
6.11 Obligations Several; Independent Nature of Lenders' Rights............................... 58
SECTION 7. COLLATERAL REPORTING AND COVENANTS........................................................ 58
7.1 Collateral Reporting..................................................................... 58
7.2 Accounts Covenants....................................................................... 60
7.3 Inventory Covenants...................................................................... 61
7.4 Equipment and Real Property Covenants.................................................... 62
{/TABLE}
(i)
{PAGE}
{TABLE}
{S} {C}
7.5 Power of Attorney........................................................................ 62
7.6 Right to Cure............................................................................ 63
7.7 Access to Premises....................................................................... 63
SECTION 8. REPRESENTATIONS AND WARRANTIES............................................................ 64
8.1 Corporate Existence, Power and Authority................................................. 64
8.2 Name; State of Organization; Chief Executive Office; Collateral Locations................ 64
8.3 Financial Statements; No Material Adverse Change......................................... 65
8.4 Priority of Liens; Title to Properties................................................... 65
8.5 Tax Returns.............................................................................. 65
8.6 Litigation............................................................................... 66
8.7 Compliance with Other Agreements and Applicable Laws..................................... 66
8.8 Environmental Compliance................................................................. 66
8.9 Employee Benefits........................................................................ 67
8.10 Bank Accounts............................................................................ 68
8.11 Intellectual Property.................................................................... 68
8.12 Subsidiaries; Affiliates; Capitalization; Solvency....................................... 68
8.13 Labor Disputes........................................................................... 69
8.14 Restrictions on Subsidiaries............................................................. 69
8.15 Material Contracts....................................................................... 70
8.16 Payable Practices........................................................................ 70
8.17 Accuracy and Completeness of Information................................................. 70
8.18 Survival of Warranties; Cumulative....................................................... 70
SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS........................................................ 70
9.1 Maintenance of Existence................................................................. 70
9.2 New Collateral Locations................................................................. 71
9.3 Compliance with Laws, Regulations, Etc. ................................................. 71
9.4 Payment of Taxes and Claims.............................................................. 72
9.5 Insurance................................................................................ 72
9.6 Financial Statements and Other Information............................................... 73
9.7 Sale of Assets, Consolidation, Merger, Dissolution, Etc. ................................ 75
9.8 Encumbrances............................................................................. 79
9.9 Indebtedness............................................................................. 82
9.10 Loans, Investments, Etc. ................................................................ 90
9.11 Dividends and Redemptions................................................................ 95
9.12 Transactions with Affiliates............................................................. 96
9.13 Compliance with ERISA.................................................................... 97
9.14 End of Fiscal Years; Fiscal Quarters..................................................... 97
9.15 Change in Business....................................................................... 97
9.16 Limitation of Restrictions Affecting Subsidiaries........................................ 97
{/TABLE}
(ii)
{PAGE}
{TABLE}
{S} {C}
9.17 Minimum EBITDA .......................................................... 98
9.18 License Agreements ...................................................... 98
9.19 Costs and Expenses ...................................................... 99
9.20 Further Assurances ...................................................... 100
SECTION 10. EVENTS OF DEFAULT AND REMEDIES .......................................... 100
10.1 Events of Default ....................................................... 100
10.2 Remedies ................................................................ 102
SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS
AND CONSENTS; GOVERNING LAW ............................................. 106
11.1 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver ... 106
11.2 Waiver of Notices ....................................................... 107
11.3 Amendments and Waivers .................................................. 107
11.4 Waiver of Counterclaims ................................................. 109
11.5 Indemnification ......................................................... 109
SECTION 12. THE AGENT ............................................................... 110
12.1 Appointment, Powers and Immunities ...................................... 110
12.2 Reliance by Agent ....................................................... 111
12.3 Events of Default ....................................................... 111
12.4 Congress in its Individual Capacity ..................................... 112
12.5 Indemnification ......................................................... 112
12.6 Non-Reliance on Agent and Other Lenders ................................. 112
12.7 Failure to Act .......................................................... 113
12.8 Additional Loans ........................................................ 113
12.9 Concerning the Collateral and the Related Financing Agreements .......... 114
12.10 Field Audit, Examination Reports and other Information;
Disclaimer by Lenders ................................................... 114
12.11 Collateral Matters ...................................................... 114
12.12 Agency for Perfection ................................................... 116
SECTION 13. TERM OF AGREEMENT; MISCELLANEOUS ........................................ 116
13.1 Term .................................................................... 116
13.2 Interpretative Provisions ............................................... 118
13.3 Notices ................................................................. 119
13.4 Partial Invalidity ...................................................... 120
13.5 Confidentiality ......................................................... 120
13.6 Successors .............................................................. 121
13.7 Assignments; Participations ............................................. 121
13.8 Entire Agreement ........................................................ 123
{/TABLE}
(iii)
{PAGE}
INDEX TO
EXHIBITS AND SCHEDULES
Exhibit A Form of Assignment and Acceptance
Exhibit B Information Certificate
Exhibit C Form of Borrowing Base Certificate
Exhibit D Form of Compliance Certificate
Schedule 1.43 Existing Lenders
Schedule 1.44 Existing Letters of Credit
Schedule 1.108 Senior Note Priority Collateral
Schedule 9.7(b) Existing Licenses of Trademarks Owned by Borrowers or
Guarantors to Third Parties
(iv)
{PAGE}
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement dated September __, 2002 is entered
into by and among Supreme International, Inc., a Delaware corporation
("Supreme") and Jantzen, Inc., a Delaware corporation ("Jantzen", and together
with Supreme, each individually a "Borrower" and collectively, "Borrowers"),
Perry Ellis International, Inc., a Florida corporation ("Parent"), PEI
Licensing, Inc., a Delaware corporation ("PEI Licensing"), Jantzen Apparel
Corp., a Delaware corporation ("Jantzen Apparel"), BBI Retail, L.L.C., a Florida
limited liability company ("BBI"), Supreme I Real Estate, LLC, a Florida limited
liability company ("Supreme I"), Supreme II Real Estate, LLC, a Florida limited
liability company ("Supreme II") and Supreme Realty LLC, a Florida limited
liability company ("Supreme Realty"), Supreme Munsingwear Canada Inc., a Canada
corporation ("Supreme Canada"), Perry Ellis Real Estate Corporation, a Delaware
corporation ("PE Real Estate", and together with Parent, PEI Licensing, Jantzen
Apparel, BBI, Supreme I, Supreme II, Supreme Realty and Supreme Canada, each
individually a "Guarantor" and collectively, "Guarantors"), the parties hereto
as lenders, whether by execution of this Agreement or an Assignment and
Acceptance (each individually, a "Lender" and collectively, "Lenders") and
Congress Financial Corporation (Florida) , a Florida corporation, in its
capacity as agent for Lenders (in such capacity, "Agent").
W I T N E S S E T H:
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
enter into financing arrangements with Borrowers pursuant to which Lenders may
make Loans and provide other financial accommodations to Borrowers; and
WHEREAS, each Lender is willing to agree (severally and not jointly) to
make such Loans and provide such financial accommodations to Borrowers on a pro
rata basis according to its Commitment (as defined below) on the terms and
conditions set forth herein and Agent is willing to act as agent for Lenders on
the terms and conditions set forth herein and the other Financing Agreements;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings given to them below:
1.1 "Accounts" shall mean, as to each Borrower and Guarantor, all
present and future rights of such Borrower and Guarantor to payment of a
monetary obligation, whether or not earned by performance, which is not
evidenced by chattel paper or an instrument, (a) for property that has been or
is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for
services rendered or to be
395389
|
Sears, Roebuck
As referenced in this Loan and Security Agreement:
Sears Roebuck & Co – by any Factor to such Borrower;
(n) the aggregate amount of such Accounts owing by a single
account debtor (other than Wal-Mart, Kohls, Mervyns, J.C. Penney, Target or
Sears Roebuck & Co .) do not constitute more than ten (10%) percent of the
aggregate amount of all otherwise Eligible Accounts and such Accounts owing by
Wal-Mart, Kohl, and Mervyns in each
_____________
Sears Roebuck & Co – do not constitute more than twenty-five
(25%) percent of the aggregate amount of all otherwise Eligible Accounts and
such Accounts owing by each of J.C. Penney, Target and Sears Roebuck & Co . do
not in each case constitute more than twenty (20%) percent of the aggregate
amount of all otherwise Eligible Accounts (but the portion of the Accounts not
in excess
_____________
dt 1543425
;
McGraw-Hill Companies
As referenced in this Loan and Security Agreement:
McGraw-Hill Companies,
Inc – of any State of
the United States of America or the District of Columbia and rated at least A-1
by Standard & Poor's Ratings Service, a division of The McGraw-Hill Companies,
Inc . or at least P-1 by Moody's Investors Service, Inc.; (d) repurchase
obligations with a term of not more than thirty (30) days for underlying
securities of the
_____________
McGraw-Hill Companies, Inc – commercial paper rating is at least
A or higher by Moody's Investors Service, Inc. or A-3 or higher by Standard &
Poor's Ratings Service, a division of The McGraw-Hill Companies, Inc . or whose
long term unsecured debt rating is at least A or higher by Standard & Poor's
Ratings Service, a division of The McGraw-Hill Companies, Inc. or Moody'
_____________
McGraw-Hill Companies, Inc – division of The McGraw-Hill Companies, Inc. or whose
long term unsecured debt rating is at least A or higher by Standard & Poor's
Ratings Service, a division of The McGraw-Hill Companies, Inc . or Moody's
Investors Service, Inc., then as to the Accounts of such nationally recognized
retailer, such percentage shall be increased to fifteen (15%) percent;
(o) such Accounts are
_____________
dt 1516468
;
Perry Ellis
As referenced in this Loan and Security Agreement:
PERRY ELLIS INTERNATIONAL, INC – FILENAME}dex1040.txt
{DESCRIPTION}LOAN AND SECURITY AGREEMENT
{TEXT}
{PAGE}
Exhibit 10.40
[Execution Copy]
LOAN AND SECURITY AGREEMENT
by and among
SUPREME INTERNATIONAL, INC.
JANTZEN, INC.
as Borrowers
and
PERRY ELLIS INTERNATIONAL, INC .
PEI LICENSING, INC.
JANTZEN APPAREL CORP.
BBI RETAIL, L.L.C.
SUPREME MUNSINGWEAR CANADA INC.
SUPREME REAL ESTATE I, LLC
SUPREME REAL ESTATE II, LLC
SUPREME REALTY LLC
PERRY
_____________
Perry Ellis International, Inc – entered
into by and among Supreme International, Inc., a Delaware corporation
("Supreme") and Jantzen, Inc., a Delaware corporation ("Jantzen", and together
with Supreme, each individually a "Borrower" and collectively, "Borrowers"),
Perry Ellis International, Inc ., a Florida corporation ("Parent"), PEI
Licensing, Inc., a Delaware corporation ("PEI Licensing"), Jantzen Apparel
Corp., a Delaware corporation ("Jantzen Apparel"), BBI Retail, L.L.C., a Florida
limited liability
_____________
Perry Ellis International, Inc – accordance with the provisions of Section 13.7
hereof.
1.8 "Blocked Accounts" shall have the meaning set forth in Section 6.3
hereof.
1.9 "Borrower Agent" shall mean Perry Ellis International, Inc ., a
Florida corporation in its capacity as Borrower Agent on behalf of itself and
the other Borrowers pursuant to Section 6.7 hereof and it successors and assigns
in
_____________
Perry Ellis International, Inc – entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
1.55 "Guarantors" shall mean, collectively, the following (together with
their respective successors and assigns): (a) Perry Ellis International, Inc . a
Florida corporation; (b) PEI Licensing, Inc., a Delaware corporation; (c)
Jantzen Apparel Corp., a Delaware corporation; (d) BBI Retail, L.L.C., a Florida
limited liability company; (e)
_____________
Perry Ellis International, Inc – payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any of the
other Financing Agreements.
1.86 "Parent" shall mean Perry Ellis International, Inc ., a Florida
corporation, and its successors and assigns.
1.87 "Participant" shall mean any financial institution that acquires and
holds a participation in the interest of any Lender in
_____________
dt 1319708
;
|
BofA
As referenced in this Loan and Security Agreement:
Bank of America, N.A. – indirectly), without condition or restriction, free and
clear of any pledge, security interest, lien, claim or other encumbrance (except
in favor of Agent) that are in account no. 817966 at Bank of America, N.A. or
successor account so long as such account is subject to an Investment Property
Control Agreement or Deposit Account Control Agreement in form and substance
satisfactory to Agent and
_____________
Bank of America, N.A. – A. or
successor account so long as such account is subject to an Investment Property
Control Agreement or Deposit Account Control Agreement in form and substance
satisfactory to Agent and Bank of America, N.A. is in compliance with the terms
thereof.
1.42 "Exchange Act" shall mean the Securities Exchange Act of 1934,
together with all rules, regulations and interpretations thereunder or related
_____________
Bank of America, N.A. – 1934,
together with all rules, regulations and interpretations thereunder or related
thereto.
1.43 "Existing Lenders" shall mean the lenders to Borrowers listed on
Schedule 1.43 hereto (and including Bank of America, N.A. in its capacity as
agent acting for such lenders) and their respective predecessors, successors and
assigns.
1.44 "Existing Letters of Credit" shall mean, collectively, the letters
of credit
_____________
Bank of America, N.A. – are made and delivered this day of
___________, 20__.
Very truly yours,
__________________________
By:_______________________
Title:____________________
D-3
{PAGE}
SCHEDULE 1.43
to
LOAN AND SECURITY AGREEMENT
Existing Lenders
Bank of America, N.A. , formerly NationsBank, N.A., in its capacity as agent
Bank of America, N.A., formerly NationsBank, N.A.
Wachovia Bank, National Association, formerly First Union National Bank
Fleet Capital
_____________
Bank of America, N.A. – _______________________
Title:____________________
D-3
{PAGE}
SCHEDULE 1.43
to
LOAN AND SECURITY AGREEMENT
Existing Lenders
Bank of America, N.A., formerly NationsBank, N.A., in its capacity as agent
Bank of America, N.A. , formerly NationsBank, N.A.
Wachovia Bank, National Association, formerly First Union National Bank
Fleet Capital Corporation
1
{PAGE}
SCHEDULE 1.44
to
LOAN AND SECURITY AGREEMENT
Existing Letters of
_____________
dt 1554132
;
BNY
As referenced in this Loan and Security Agreement:
Bank of New York – Letter of Credit Facilities.
1.69 "Letter of Credit Facilities" shall mean, collectively, (a) the letter
of credit and related acceptance facility provided to Parent and Borrowers by
Israel Discount Bank of New York in accordance with the terms of the Letter of
Credit Facility Agreement of Parent and Borrowers with Israel Discount Bank of
New York, as in effect on the date hereof; (
_____________
Bank of
New York, – to Parent and Borrowers by
Israel Discount Bank of New York in accordance with the terms of the Letter of
Credit Facility Agreement of Parent and Borrowers with Israel Discount Bank of
New York, as in effect on the date hereof; (b) the letter of credit and related
acceptance facility provided to Parent and Borrowers by CommerceBank, N.A. in
accordance with the
_____________
Bank of New York – or may hereafter be amended, modified,
supplemented, extended, renewed or replaced): (a) the Letter of Credit and
Security Agreement, dated April 23, 2002, by Parent and Borrowers and Israel
Discount Bank of New York and the General Security Agreement, dated July 31,
2002, between Parent and Borrowers and Israel Discount Bank of New York; (b) the
Commitment Letter, dated June 24, 2002, by and
_____________
Bank of New York; – April 23, 2002, by Parent and Borrowers and Israel
Discount Bank of New York and the General Security Agreement, dated July 31,
2002, between Parent and Borrowers and Israel Discount Bank of New York; (b) the
Commitment Letter, dated June 24, 2002, by and among Parent, Borrowers and
CommerceBank, N.A. and the Commercial Security Agreement, dated July 2, 2002, by
Parent and
_____________
Bank of New York – as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed or replaced): (a) the Intercreditor Agreement,
dated of even date herewith, by and among Israel Discount Bank of New York and
Agent, as acknowledged and agreed to by Borrowers and Guarantors; (b) the
Intercreditor Agreement, dated of even date herewith, between CommerceBank, N.A.
and Agent, as acknowledged and agreed
_____________
dt 1583580
;
More... |
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Full Doc
| 2004 |
Master Services Agreement
Master Services Agreement (407K)
Doc #310838: Click preview link for longer preview.
MASTER SERVICES AGREEMENT
between
Sears, Roebuck and Co.
and
Computer Sciences Corporation
DATED: June 1, 2004
TABLE OF CONTENTS
(continued)
Page
1.
BACKGROUND AND OBJECTIVES
1.1
Information Technology Services
1
1.2
Goals and . . .
310838
| | |
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| 2003 |
Purchase, Sale and Servicing Transfer Agreement
Purchase, Sale and Servicing Transfer Agreement (366K)
Doc #176224: Click preview link for longer preview.
PURCHASE, SALE AND SERVICING TRANSFER AGREEMENT
BY AND AMONG
SEARS, ROEBUCK AND CO.,
SEARS FINANCIAL HOLDING CORPORATION,
SEARS NATIONAL BANK,
SEARS ROEBUCK DE PUERTO RICO, INC.,
SEARS LIFE HOLDING CORP.,
SRFG, INC.,
SEARS INTELLECTUAL PROPERTY MANAGEMENT COMPANY,
Certain Other Subsidiaries of
Sears that are Signatories Hereto
AND
CITICORP
DATED AS OF JULY 15, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms........................................2
Section 1.2. Construction; Absence of Presumption........................17
Section 1.3. Headings; Definitions.......................................17
ARTICLE II
SALE, CONVEYANCE AND ASSUMPTION
Section 2.1. Purchase and Sale of the Acquired Subsidiary Stock..........17
Section 2.2. Purchase and Sale of Purchased Interests....................18
Section 2.3. Retained Assets.............................................20
Section 2.4. Assumed Liabilities.........................................21
Section 2.5. Retained Liabilities........................................22
Section 2.6. Allocation of Purchase Price................................23
ARTICLE III
THE CLOSING AND POST-CLOSING ADJUSTMENTS
Section 3.1. Closing.....................................................23
Section 3.2. Preliminary Information.....................................24
Section 3.3. Closing Purchase Price......................................24
Section 3.4. Sellers' Deliveries at Closing..............................24
Section 3.5. Purchaser's Deliveries at Closing...........................25
Section 3.6. Proceedings at Closing......................................26
Section 3.7. Delayed Closing.............................................26
Section 3.8. Closing Date Balance Sheet; Payments
on the Settlement Date......................................27
Section 3.9. Delivery of Books and Records...............................30
Section 3.10. Transfer of Absolute Title; Filing of Financing Statements..30
Section 3.11. Power of Attorney...........................................31
Section 3.12. Post-Closing Payments on Account Receivables................31
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Section 4.1. Organization and Good Standing..............................31
Section 4.2. Acquired Subsidiary.........................................32
Section 4.3. Authorization; Binding Obligations..........................32
Section 4.4. No Conflicts................................................32
Section 4.5. Approvals...................................................33
i
{PAGE}
Section 4.6. Litigation..................................................33
Section 4.7. Compliance with Requirements of Law.........................33
Section 4.8. Transactions with Affiliates................................34
Section 4.9. Financial Statements........................................34
Section 4.10. Accounts....................................................36
Section 4.11. Trust; Securitization.......................................37
Section 4.12. Effective Transfer..........................................39
Section 4.13. Sufficiency of Assets.......................................39
Section 4.14. Employee Benefit Plans; Employee Matters....................39
Section 4.15. No Brokers or Finders.......................................41
Section 4.16. Undisclosed Liability.......................................41
Section 4.17. Real Property...............................................41
Section 4.18. Insurance...................................................43
Section 4.19. Licenses and Permits........................................43
Section 4.20. Absence of Certain Changes..................................43
Section 4.21. Marketing Agreements........................................44
Section 4.22. Certain Contracts...........................................44
Section 4.23. Ratings.....................................................45
Section 4.24. Intellectual Property.......................................45
Section 4.25. Taxes.......................................................46
Section 4.26. No Use of Borrower Lists....................................47
Section 4.27. Environmental Matters.......................................47
Section 4.28. No Other Representations or Warranties......................48
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 5.1. Organization and Good Standing..............................48
Section 5.2. Authorization; Binding Obligations..........................48
Section 5.3. No Conflicts................................................48
Section 5.4. Approvals...................................................49
Section 5.5. Litigation..................................................49
Section 5.6. Compliance with Requirements of Law.........................49
Section 5.7. Licenses and Permits........................................50
Section 5.8. Servicing Qualifications....................................50
Section 5.9. Absence of Certain Changes..................................50
Section 5.10. Financing...................................................50
Section 5.11. Acquisition of Shares for Investment........................50
Section 5.12. No Brokers or Finders.......................................50
Section 5.13. No Inducement or Reliance; Independent Assessment...........50
ARTICLE VI
COVENANTS
Section 6.1. Conduct of Business.........................................51
Section 6.2. Access and Confidentiality..................................54
ii
{PAGE}
Section 6.3. Delivery of Securitization Transfer Agreements..............57
Section 6.4. Advice of Changes...........................................57
Section 6.5. Efforts; Filings............................................57
Section 6.6. No Solicitation.............................................58
Section 6.7. Further Assurances..........................................59
Section 6.8. Assignment of Contracts; Approvals and Consents.............60
Section 6.9. Notice of Proceedings.......................................61
Section 6.10. Guaranties; Letters of Credit; Intercompany Agreements......61
Section 6.11. Bulk Sales Law..............................................62
Section 6.12. IBM Master Agreement; Other Sears Service
Provider Agreements.........................................62
Section 6.13. MasterCard Agreements.......................................62
Section 6.14. Notice to Cardholders.......................................63
Section 6.15. Change Name of the Acquired Subsidiary......................63
Section 6.16. Employee Matters............................................63
Section 6.17. Board of Directors of Acquired Subsidiary...................67
Section 6.18. Unsecured Debt of Sears.....................................67
Section 6.19. Covenant Not to Petition....................................67
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions of All Parties to Closing........................67
Section 7.2. Conditions to Obligations of Purchaser to Close.............68
Section 7.3. Conditions to Obligations of Sellers to Close...............69
ARTICLE VIII
TAX MATTERS
Section 8.1. Liability for Taxes; Refunds and Credits....................69
Section 8.2. Section 338(h)(10) Elections................................71
Section 8.3. Filing Responsibility.......................................72
Section 8.4. Cooperation; Exchange of Information; Tax Proceedings.......74
Section 8.5. Tax Sharing Agreements......................................77
Section 8.6. Intentionally Omitted.......................................77
Section 8.7. Transfer Taxes..............................................77
Section 8.8. Survival....................................................77
Section 8.9. Post-Closing Dispositions...................................78
Section 8.10. Tax Treatment of Payments...................................78
Section 8.11. Sales Tax Recoveries........................................78
ARTICLE IX
TERMINATION
Section 9.1. Termination.................................................79
Section 9.2. Effect of Termination.......................................80
iii
{PAGE}
ARTICLE X
INDEMNIFICATION
Section 10.1. Survival of Representations and Warranties and Covenants....80
Section 10.2. Indemnification of Purchaser................................80
Section 10.3. Indemnification of Sellers..................................81
Section 10.4. Claims......................................................82
Section 10.5. Limitations.................................................83
Section 10.6. Insurance...................................................84
Section 10.7. Remedies Exclusive..........................................84
Section 10.8 Mitigation..................................................84
Section 10.9. Tax Indemnification.........................................84
Section 10.10. Termination of Indemnification..............................85
ARTICLE XI
MISCELLANEOUS
Section 11.1. Notices.....................................................85
Section 11.2. Governing Law...............................................87
Section 11.3. Jurisdiction; Venue; Consent to Service of Process..........87
Section 11.4. Counterparts................................................88
Section 11.5. Entire Agreement............................................88
Section 11.6. Amendment, Modification and Waiver..........................88
Section 11.7. Severability................................................89
Section 11.8. Successors and Assigns; No Third-Party Beneficiaries........89
Section 11.9. Publicity...................................................89
Section 11.10. WAIVER OF JURY TRIAL........................................89
Section 11.11. Expenses....................................................89
Section 11.12. Specific Performance and Other Equitable Relief.............90
iv
{PAGE}
SCHEDULES:
---------
Schedule 1.1(a) Individuals Deemed not to be Business Employees
Schedule 1.1(b) Knowledge of Sellers
Schedule 1.1(c) Knowledge of Purchaser
Schedule 1.1(d) Reference Balance Sheet
Schedule 1.1(e) Applicable Governmental Authorities
Schedule 2.2(i) Securitization Documents
Schedule 2.2(j) Securitization Interests
Schedule 2.2(l)-1 Owned Real Property
Schedule 2.2(l)-2 Leased Real Property
Schedule 2.2(m) Fixed Assets
Schedule 2.2(n) Assumed Contracts
Schedule 2.2(s) Other Assets
Schedule 2.3(j) Other Retained Assets
Schedule 2.4(l) Other Assumed Liabilities
Schedule 2.5(k) Other Retained Liabilities
Schedule 3.4(e) Securitization Transfer Agreements
Schedule 3.4(f) Required Resignations
Schedule 6.1(b)(iv) Change-in-Terms V and other programs
Schedule 6.1(b)(ix) Contracts Permitting Disposition of Purchased Interests
Schedule 6.1(b)(xi) Permitted Compensation and Benefit Changes
Schedule 6.10(a) Guaranties
Schedule 6.10(b) Obligations Not Requiring Release, Termination or
Discharge
Schedule 6.16(i) Retention Agreements
Schedule 6.16(j) Limitations of Terminations without Cause
Schedule 6.18 Sears Indentures
Schedule 7.2(f) Required Opinions
EXHIBITS:
Exhibit A Form of Program Agreement
Exhibit B Term Sheet for Transition Services Agreement
Exhibit C Form of Licensing Agreement
Exhibit D Form of Merchant Agreement
Exhibit E Form of Pooling Agreement Amendment
v
{PAGE}
INDEX OF DEFINED TERMS
----------------------
PAGE
----
338(h)(10) Election...........................................................71
Account........................................................................2
Account Agreement..............................................................2
Accountant....................................................................29
Acquired Cardholder Information................................................2
Acquired Intellectual Property.................................................2
Acquired Subsidiary...........................................................17
Acquired Subsidiary Financial Statements......................................35
Acquired Subsidiary Stock.....................................................17
ADSP...........................................................................2
Affiliate......................................................................3
Agreement......................................................................1
Allocation Statement..........................................................23
Alternate Certificate.........................................................25
Alternative Proposal..........................................................58
Annual Financial Information..................................................35
Annual Statement...............................................................3
Applicable Contracts..........................................................44
Applicable Governmental Authority..............................................3
Assumed Contracts.............................................................19
Assumed Liabilities...........................................................21
Bank...........................................................................1
Benefit Item...................................................................3
Books and Records..............................................................3
Borrower.......................................................................3
Borrower List..................................................................3
Business.......................................................................4
Business Day...................................................................4
Business Employee..............................................................4
Business Material Adverse Effect...............................................4
Card Association...............................................................5
Charged-Off Account............................................................5
Cleanup........................................................................5
Closing.......................................................................23
Closing Date..................................................................24
Closing Date Balance Sheet....................................................27
Closing Purchase Price.........................................................5
COBRA Obligations.............................................................65
Code...........................................................................5
Confidentiality Agreement.....................................................55
Consents......................................................................49
6
{PAGE}
Contract.......................................................................5
Credit Balance.................................................................5
Credit Card....................................................................5
Credit Card Business...........................................................5
Cut-Off Time...................................................................6
Damages........................................................................6
Determination.................................................................71
Disclosure Schedule............................................................6
Employment Agreements.........................................................39
Environmental Claim............................................................6
Environmental Laws.............................................................6
ERISA..........................................................................6
ERISA Affiliate...............................................................15
Estimated Closing Date Balance Sheet...........................................6
Estimated Total Equity........................................................24
Exchange Act..................................................................35
Excluded Proprietary Information...............................................7
Excluded Taxes.................................................................7
Expiration Date................................................................7
FDIC...........................................................................7
Federal Funds Rate.............................................................7
Final Adjustment Payment......................................................28
Final Average Receivables Statement...........................................27
Final Closing Tape.............................................................7
Final Premium Adjustment Payment..............................................28
Final Six-Month Average Net Customer Receivables..............................27
Final Total Equity............................................................27
Financial Information.........................................................35
Financial Products Business....................................................8
Financial Products Delayed Closing............................................26
Financial Products Delayed Closing Date.......................................26
Financing Materials...........................................................59
Financing Statements..........................................................30
FIRPTA Certificate............................................................25
First Installment.............................................................66
Fixed Assets..................................................................19
Form 8023.....................................................................71
FP Delayed Closing Assets.....................................................26
FP Delayed Closing Liabilities................................................26
FP Delayed Closing Taxes.......................................................8
GAAP...........................................................................8
Governmental Authority.........................................................8
Guaranties....................................................................61
Hazardous Materials............................................................8
HSR Act.......................................................................58
IBM............................................................................8
7
{PAGE}
IBM Master Agreement...........................................................8
Improvements...................................................................8
Indemnified Parties...........................................................81
Indemnifying Party............................................................82
Indemnity Payments............................................................83
Insurance Contracts............................................................8
Intellectual Property..........................................................9
Interchange Fees...............................................................9
Interim Financial Information.................................................35
Investigation.................................................................56
Knowledge......................................................................9
Leased Real Property...........................................................9
Leases.........................................................................9
Liability......................................................................9
Licensed Intellectual Property.................................................9
Licensed Marks.................................................................9
Licensing Agreement............................................................9
Lien...........................................................................9
Marks.........................................................................10
Master File...................................................................10
MasterCard Agreements.........................................................10
Maximum Indemnification Amount................................................83
Merchant Agreement............................................................10
Merchant Dealer...............................................................10
Operating Regulations.........................................................10
Other Assets..................................................................19
Other Assumed Liabilities.....................................................22
Other Retained Assets.........................................................20
Other Retained Liabilities....................................................23
Owned Intellectual Property...................................................10
Owned Real Property...........................................................10
Parties........................................................................1
Party..........................................................................1
Patents.......................................................................10
Permitted Lien................................................................10
Permitted Seller Benefit Plan Action..........................................53
Person........................................................................11
Pooling Agreement..............................................................1
Pooling Agreement Amendment...................................................11
Post-Closing Tax Period.......................................................11
Pre-Closing Environmental Liabilities and Costs...............................11
Pre-Closing Tax Period........................................................11
Preliminary Average Receivables Statement.....................................24
Preliminary Closing Tape......................................................11
Premium Amount................................................................11
Program Agreement..............................................................1
8
{PAGE}
Purchased Interests...........................................................18
Purchaser......................................................................1
Purchaser Consents............................................................49
Purchaser Indemnified Parties.................................................81
Purchaser Material Adverse Effect.............................................12
Purchaser Permits.............................................................50
Purchaser Savings Plan........................................................65
Purchaser Service Provider Agreement..........................................62
Purchaser Tax Claim...........................................................75
Qualified Plan................................................................40
Quarterly Statement...........................................................12
Rapid Amortization Event......................................................12
Real Property.................................................................12
Receivable Repurchase Event...................................................12
Receivables...................................................................12
Reference Balance Sheet.......................................................12
Reinsurance Agreement.........................................................13
Related Agreements............................................................13
Release.......................................................................13
Required Amendments...........................................................13
Requirements of Law...........................................................13
Retained Assets...............................................................20
Retained Business Employees...................................................55
Retained Liabilities..........................................................22
Retention Agreements..........................................................66
Return........................................................................16
Sales Tax Recovery............................................................13
SAP...........................................................................13
Sears..........................................................................1
Sears Affiliated Group........................................................13
Sears Canada..................................................................13
Sears Customer Data Warehouse.................................................13
Sears Group...................................................................14
Sears Holding..................................................................1
Sears IP.......................................................................1
Sears Life Holding.............................................................1
Sears Mexico..................................................................14
Sears Puerto Rico..............................................................1
Sears Savings Plan............................................................65
Sears Service Provider Agreement..............................................14
Sears Tax Claim...............................................................75
SEC...........................................................................35
SEC Documents.................................................................38
Second Installment............................................................66
Securities Act................................................................38
Securitization................................................................14
9
{PAGE}
Securitization Account........................................................14
Securitization Cash Collateral................................................14
Securitization Documents......................................................18
Securitization Interests......................................................18
Securitization Receivables....................................................14
Securitization Retained Interests.............................................14
Securitization Transfer Agreements............................................24
Seller.........................................................................1
Seller Benefit Plan...........................................................15
Seller Business Documents.....................................................34
Seller Consents...............................................................33
Seller Indemnified Parties....................................................81
Seller Permits................................................................43
Seller Tax Indemnitees........................................................70
Sellers........................................................................1
Series Supplement.............................................................15
Service Provider..............................................................14
Servicer......................................................................15
Servicer Rights...............................................................18
Servicer Termination Event....................................................15
Settlement Day................................................................28
Six-Month Average Net Customer Receivables....................................12
Software......................................................................15
SRFG...........................................................................1
Straddle Period...............................................................15
Subsequent Financing..........................................................59
Subsidiary....................................................................15
Tax Benefit...................................................................15
Tax Item......................................................................15
Tax Proceeding................................................................16
Tax Recovery End Date.........................................................16
Tax Return....................................................................16
Taxes.........................................................................16
Termination Date..............................................................79
Third-Party Claim.............................................................82
Threshold.....................................................................83
Total Equity..................................................................16
Transfer Taxes................................................................77
Transition Services Agreement.................................................16
Transition Team...............................................................55
Trust.........................................................................16
Trust Certificates............................................................16
TSYS..........................................................................16
Unreasonable Condition........................................................16
WARN Act......................................................................66
10
{PAGE}
PURCHASE, SALE AND SERVICING TRANSFER AGREEMENT
This PURCHASE, SALE AND SERVICING TRANSFER AGREEMENT (this
"Agreement") is entered into as of July 15, 2003, by and among SEARS, ROEBUCK
AND CO., a New York corporation ("Sears"), SEARS FINANCIAL HOLDING CORPORATION,
a Delaware corporation and a wholly-owned subsidiary of Sears ("Sears Holding"),
SEARS NATIONAL BANK, a national banking association, a wholly-owned subsidiary
of Sears Holding and a "credit card bank" under the Bank Holding Company Act
(the "Bank"), SEARS ROEBUCK DE PUERTO RICO, INC., a Delaware corporation and a
wholly-owned subsidiary of Sears ("Sears Puerto Rico"), SEARS LIFE HOLDING
CORP., a Delaware corporation and a wholly-owned subsidiary of Sears ("Sears
Life Holding"), SRFG, INC. (formerly Sears Receivables Financing Group, Inc.), a
Delaware corporation and a wholly-owned subsidiary of Sears ("SRFG"), SEARS
INTELLECTUAL PROPERTY MANAGEMENT COMPANY, a Delaware corporation and a
wholly-owned subsidiary of Sears ("Sears IP"), certain other subsidiaries of
Sears that are signatories hereto (together with Sears, Sears Holding, the Bank,
Sears Puerto Rico, Sears Life Holding, SRFG and Sears IP, collectively,
"Sellers", and each, individually, a "Seller"), and CITICORP, a Delaware
corporation ("Purchaser"), (Sellers together with Purchaser, collectively, the
"Parties", and each, individually, a "Party").
RECITALS
WHEREAS, Sears is, among other things, (i) engaged in the
business of selling merchandise and services through retail stores, catalogs and
by other means, and (ii) directly and indirectly through certain of its
subsidiaries, including the Bank, engaged in the Credit Card Business and the
Financial Products Business (each as defined herein);
WHEREAS, the Sears Credit Account Master Trust II was formed
pursuant to that certain Pooling and Servicing Agreement, dated as of July 31,
1994, as amended and/or supplemented through the date of this Agreement and as
it may be further amended and/or supplemented through the Closing Date to the
extent permitted by this Agreement, including all Series Supplements thereto
(the "Pooling Agreement"), by and among Sears, as servicer, SRFG, as seller, and
The Bank of New York (as successor trustee to Bank One, National Association
(formerly the First National Bank of Chicago)), as trustee;
WHEREAS, pursuant to this Agreement, Sellers desire to sell to
Purchaser, and Purchaser desires to purchase from Sellers, the Business pursuant
to the terms contained and in the manner described herein;
WHEREAS, on the date hereof, Sears, Sears IP and Citibank
(USA) N.A., a national banking association and Affiliate of Purchaser, are
entering into a Program Agreement (the "Program Agreement") in the form attached
hereto as Exhibit A, to become effective as of the Closing under this Agreement,
that provides for, among other things, the issuance of Sears proprietary cards
and general purpose credit cards, the issuance of existing and new credit and
financial products to be developed with Purchaser, the processing and servicing
of the related accounts, and the conduct of related marketing activities; and
{PAGE}
WHEREAS, simultaneously with the Closing under this Agreement,
Sellers, Purchaser and certain of their respective Affiliates desire to enter
into other agreements in connection with the transactions contemplated hereby.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth below and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. For the purposes of this Agreement,
unless the context requires otherwise, the following terms shall have the
following meanings:
"Account" shall mean any account under which a purchase, cash
advance or credit transaction may be or has been made by a Borrower by
means of a Credit Card, which is recorded on the system of TSYS or the
Sellers' internal systems, is designated as a Sears Card Account, Sears
Blue Card Account, Sears Puerto Rico Card Account, Sears Premier Card
Account, SearsCharge PLUS Account, Sears Home Improvement Account,
Sears Commercial One Business Account, Sears Installed Home Improvement
Account, Sears Modernizing Credit Plan Account, Sears Easy Pay Account,
Sears Gold MasterCard Account, Sears Premier Gold MasterCard or The
Great Indoors Gold MasterCard Account and established pursuant to an
Account Agreement (including such accounts that are Charged-Off
Accounts or otherwise impaired accounts) and owned by Sears or any of
its Affiliates as of the Cut-Off Time.
"Account Agreement" shall mean an account agreement (including
related disclosure) between the Bank, Sears or Sears Puerto Rico, on
the one hand, and the related Borrower, on the other, governing the
terms and conditions of an Account, as such agreement may be amended,
modified or otherwise changed from time to time (including pursuant to
change of terms notices).
"Acquired Cardholder Information" shall mean information
included in the Master File or the Borrowers List.
"Acquired Intellectual Property" shall mean the Intellectual
Property (except as provided pursuant to the Licensing Agreement and
the Transition Services Agreement) primarily used or held for use by
Sellers and their Subsidiaries in the operations of the Business;
provided, however, that in no event shall Acquired Intellectual
Property include any Excluded Proprietary Information.
"ADSP" shall mean the aggregate deemed sale price, as defined
in Treasury Regulation Section 1.338-4.
176224
|
Citibank (USA)
As referenced in this Purchase, Sale and Servicing Transfer Agreement:
Citibank
(USA) N – Purchaser, and Purchaser desires to purchase from Sellers, the Business pursuant
to the terms contained and in the manner described herein;
WHEREAS, on the date hereof, Sears, Sears IP and Citibank
(USA) N .A., a national banking association and Affiliate of Purchaser, are
entering into a Program Agreement (the "Program Agreement") in the form attached
hereto as Exhibit A, to become effective
_____________
Citibank USA, N – Floor
425 Park Avenue
New York, New York 10043
Attn: Associate General Counsel Mergers & Acquisitions
Facsimile: (212) 793-2402
Telephone confirmation: (212) 793-7589
86
{PAGE}
With a copy to:
Citibank USA, N .A.
701 East 602 Street North
Sioux Falls, South Dakota 57104
Attn: General Counsel
Facsimile: (605) 330-6745
Telephone confirmation: (605) 331-1567
With a copy to:
Skadden, Arps,
_____________
dt 1429390
;
McGraw-Hill Companies
As referenced in this Purchase, Sale and Servicing Transfer Agreement:
McGraw-Hill Companies,
Inc – Contract.
Section 4.23. Ratings. Except as publicly disclosed prior to the date
hereof, none of Standard & Poor's, a division of The McGraw-Hill Companies,
Inc ., Moody's Investors Service, Inc., Fitch, Inc., doing business as Fitch
Ratings, or A.M. Best has indicated that it has under
_____________
dt 311119
;
|
BNY
As referenced in this Purchase, Sale and Servicing Transfer Agreement:
Bank of New York – thereto
(the "Pooling Agreement"), by and among Sears, as servicer, SRFG, as seller, and
The Bank of New York (as successor trustee to Bank One, National Association
(formerly the First National Bank of
Bank of New York, – and Servicing Agreement, dated as of October 25, 2002, among
Sears, SFVT, Inc. and The Bank of New York, as trustee, as supplemented by
the Series 2003-A Series Supplement, dated as of
dt 42523
;
Bank One
As referenced in this Purchase, Sale and Servicing Transfer Agreement:
Bank One, Na – thereto
(the "Pooling Agreement"), by and among Sears, as servicer, SRFG, as seller, and
The Bank of New York (as successor trustee to Bank One, Na tional Association
(formerly the First National Bank of Chicago)), as trustee;
WHEREAS, pursuant to this Agreement, Sellers desire to sell to
Purchaser, and
_____________
dt 100135
;
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| 2003 |
Executive Employment and Severance/Non-Compete Agreement
Executive Employment and Severance/Non-Compete Agreement (44K)
Doc #310880: Click preview link for longer preview.
Executive Employment
And
Severance/Non-Compete Agreement
In this Executive Employment and Severance/Non-Compete Agreement dated as of October , 2002 (the �Agreement�), Sears, Roebuck and Co., including its subsidiaries (collectively referred to as �Sears�), and Gerald F. Kelly, Jr. (�Executive�), intending to be legally bound and for good and valuable consideration, agree as follows:
1. Employment Period.
(a) Sears hereby agrees to . . .
310880
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| 2003 |
Assignment and Assumption Agreement Relating to the First Amended and Restated Contribution Agreement
Assignment and Assumption Agreement Relating to the First Amended and Restated Contribution Agreement (10K)
Doc #176343: Click preview link for longer preview.
ASSIGNMENT AND ASSUMPTION AGREEMENT RELATING TO THE FIRST
AMENDED AND RESTATED CONTRIBUTION AGREEMENT, dated as of November 3, 2003 (the
"Receivables Contribution Assignment and Assumption Agreement") among Sears,
Roebuck and Co., a New York corporation (the "Transferring Contributor"), SRFG,
Inc., a Delaware corporation (the "Transferring Contributee"), Citi Cards South
Dakota Acceptance Corp., a Delaware corporation (the "New Contributor") and Citi
Omni-S Finance LLC, a Delaware limited liability company (the "New
Contributee").
RECITALS
WHEREAS, the Transferring Contributor and the Transferring
Contributee are parties to the First Amended and Restated Contribution
Agreement, dated as of July 31, 1994, as amended by Amendment No. 1 to the First
Amended and Restated Contribution Agreement, dated as of July 20, 2001 and
Amendment No. 2 to the First Amended and Restated Contribution Agreement, dated
as of November 3, 2003 (as so amended, the "Receivables Contribution
Agreement").
WHEREAS, the Transferring Contributor, the Transferring
Contributee, certain of their affiliates and Citicorp, a Delaware corporation
("Citicorp") are parties to a Purchase, Sale and Servicing Transfer Agreement
(the "Purchase Agreement"), dated as of July 15, 2003, as amended from time to
time according to its terms.
WHEREAS, in connection with the Purchase Agreement, the
Transferring Contributor, Citicorp and the New Contributor are parties to a Bill
of Sale and Assignment and Assumption Agreement (the "Contributor Bill of
Sale"), dated as of the date first set forth above, whereby the Transferring
Contributor is selling, assigning, transferring and conveying certain assets of
the Transferring Contributor to the New Contributor.
WHEREAS, in connection with the Purchase Agreement, the
Transferring Contributee, Citicorp and the New Contributee are parties to a Bill
of Sale and Assignment and Assumption Agreement (the "Contributee Bill of
Sale"), dated as of the date first set forth above, whereby the Transferring
Contributee is selling, assigning, transferring and conveying certain assets of
the Transferring Contributee to the New Contributee.
WHEREAS, the Transferring Contributor intends to assign to the
New Contributor all of its right, title and interest and delegate all of its
duties and obligations that are incurred or accrue on or after the date hereof
under the Receivables Contribution Agreement.
WHEREAS, the Transferring Contributee intends to assign to the
New Contributee all of its right, title and interest and delegate all of its
duties and obligations that are incurred or accrue on or after the date hereof
under the Receivables Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of
{PAGE}
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do covenant and agree as follows:
SECTION 1. Unless otherwise defined in this Receivables
Contribution Assignment and Assumption Agreement, all defined terms used herein,
including the Recitals hereto, shall have the meanings ascribed to such terms in
the Receivables Contribution Agreement.
SECTION 2. (a) The Transferring Contributor does hereby assign
all of its right, title and interest and delegate all of its duties and
obligations that are incurred or accrue on or after the date hereof, in, to and
under the Receivables Contribution Agreement to the New Contributor; provided
that to the extent that any duty or obligation of the Transferring Contributor
under the Receivables Contribution Agreement is a Retained Liability (as defined
in the Purchase Agreement), such duties or obligations are not hereby conveyed
to the New Contributor, but remain with the Transferring Contributor.
(b) The New Contributor accepts all such assigned right, title
and interest, assumes all such duties and obligations (excluding any Retained
Liabilities) and agrees that it shall be substituted for the Transferring
Contributor under the Receivables Contribution Agreement.
(c) The Transferring Contributee and the New Contributee
hereby severally (i) acknowledge and consent to the assignment and delegation
made above, (ii) acknowledge and agree that as of the date hereof, the New
Contributor has been substituted for the Transferring Contributor under the
Receivables Contribution Agreement and (iii) release the Transferring
Contributor from all of its duties and obligations under the Receivables
Contribution Agreement (excluding any Retained Liabilities and any duties or
obligations that were incurred or accrued prior to the date hereof).
SECTION 3. (a) The Transferring Contributee does hereby assign
all of its right, title and interest, and delegate all of its duties and
obligations that are incurred or accrue on or after the date hereof, in, to and
under the Receivables Contribution Agreement to the New Contributee; provided
that to the extent that any duty or obligation of the Transferring Contributee
under the Receivables Contribution Agreement is a Retained Liability (as defined
in the Purchase Agreement), such duties or obligations are not hereby conveyed
to the New Contributee, but remain with the Transferring Contributee.
(b) The New Contributee accepts all such assigned right, title
and interest, assumes all such duties and obligations (excluding any Retained
Liabilities) and agrees that it shall be substituted for the Transferring
Contributee under the Receivables Contribution Agreement.
(c) The Transferring Contributor and the New Contributor
hereby severally (i) acknowledge and consent to the assignment and delegation
made above, (ii) acknowledge and agree that as of the date hereof, the New
Contributee has been substituted for the Transferring Contributee under the
Receivables Contribution Agreement and (iii) release the Transferring
Contributee from all of its duties and obligations under the Receivables
Contribution Agreement
176343
| SRFG, Inc.;
Citi Cards South Dakota Acceptance Corp.;
| Citi Omni-S Finance LLC;
Citibank Omni-S Master Trust
|
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| 2003 |
Acknowledgement and Extension Agreement
Acknowledgement and Extension Agreement (10K)
Doc #155023: Click preview link for longer preview.
ACKNOWLEDGEMENT AND EXTENSION AGREEMENT
Dated as of August 19, 2003
To the Lenders parties to
The Credit Agreement
Referred to below and
Citibank N.A., as Agent
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement, dated as of February 24, 2003 (the Credit Agreement; capitalized terms not otherwise defined in this Acknowledgement and Extension Agreement have the same meanings as specified in the Credit Agreement), among Sears Roebuck Acceptance Corp. (the Borrower), the lenders parties thereto, Bank One, NA, as syndication agent, Barclays Bank PLC and Bank of America, N.A., as documentation agents, Salomon Smith Barney Inc. and Banc One Capital Markets, Inc., as joint lead arrangers and joint bookrunners, and Citibank, N.A., as administrative agent.
Sears, Roebuck and Co. has announced that it has contracted to sell its Credit and Financial Products business unit (including the assets associated with such business unit) to Citigroup (or any of its subsidiaries) (the Sale). The Borrower has determined that (i) as a result of the Sale, the aggregate Commitments under the Credit Agreement will be more than will be required for the ongoing financing needs of the Borrower and (ii) it is advisable to request that, effective upon consummation of the Sale, the Termination Date be extended to May 24, 2004.
Subject to the condition that the Required Lenders shall have executed and returned this Acknowledgement and Extension Agreement to the Agent as provided herein (the Agreement Effectiveness), the Lenders, Borrower and Citibank N.A., as Agent, hereby agree as follows:
155023
|
Citibank
As referenced in this Acknowledgement and Extension Agreement:
Citibank N.A. – c)
ACKNOWLEDGEMENT AND EXTENSION AGREEMENT
Dated as of August 19, 2003
To the Lenders parties to
The Credit Agreement
Referred to below and
Citibank N.A. , as Agent
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement, dated as of February 24, 2003 (the Credit
_____________
Citibank, N.A. – N.A., as documentation agents, Salomon Smith Barney Inc. and Banc One Capital Markets, Inc., as joint lead arrangers and joint bookrunners, and Citibank, N.A. , as administrative agent.
Sears, Roebuck and Co. has announced that it has contracted to sell its Credit and Financial Products business unit (
_____________
Citibank N.A. – shall have executed and returned this Acknowledgement and Extension Agreement to the Agent as provided herein (the Agreement Effectiveness), the Lenders, Borrower and Citibank N.A. , as Agent, hereby agree as follows:
(1) Reduction of Commitment. Subject to the Agreement Effectiveness, the Borrower hereby gives irrevocable notice, pursuant
_____________
dt 146004
;
UBS
As referenced in this Acknowledgement and Extension Agreement:
UBS AG, – Umbs
Title: Authorized Signatory
STATE STREET BANK AND TRUST COMPANY
By:
/s/ Juan G. Sierra
Name: Juan G. Sierra
Title: Assistant Vice President
UBS AG, CAYMAN ISLANDS BRANCH
By:
/s/ Patricia OKicki
Name: Patricia OKicki
By:
/s/ Luke Goldsworthy
Name: Luke Goldsworthy
Title: Director
Title: Associate Director
_____________
dt 237827
;
|
Banc One Capital
As referenced in this Acknowledgement and Extension Agreement:
Banc One Capital Markets, – Bank One, NA, as syndication agent, Barclays Bank PLC and Bank of America, N.A., as documentation agents, Salomon Smith Barney Inc. and Banc One Capital Markets, Inc., as joint lead arrangers and joint bookrunners, and Citibank, N.A., as administrative agent.
Sears, Roebuck and Co. has announced that
_____________
dt 100642
;
BofA
As referenced in this Acknowledgement and Extension Agreement:
Bank of America, – Borrower), the lenders parties thereto, Bank One, NA, as syndication agent, Barclays Bank PLC and Bank of America, N.A., as documentation agents, Salomon Smith Barney Inc. and Banc One Capital Markets,
BANK OF AMERICA, – NEW YORK BRANCH
By:
/s/ Hector J. Gonzalez
Name:
Hector J. Gonzalez
Title:
Vice President
BANK OF AMERICA, N.A.
By:
/s/ Kimberley A. Whitney
Name:
Kimberley A. Whitney
Title:
Managing Director
dt 40202
;
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| 2002 |
Letter Agreement
Letter Agreement (1K)
Doc #310921: Click preview link for longer preview.
SEARS, ROEBUCK AND CO.
3333 BEVERLY ROAD
HOFFMAN ESTATES, ILLINOIS 60179
July 16, 2002
Sears, Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, Delaware 19807
Gentlemen:
This is to confirm our agreement ("Extension Agreement") that the term "Debt
310921
| | |
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| 2002 |
Letter Agreement
Letter Agreement (6K)
Doc #310948: Click preview link for longer preview.
SEARS, ROEBUCK AND CO.
3333 BEVERLY ROAD
HOFFMAN ESTATES, IL 60179
GREG A. LEE
Senior Vice President
Human Resources
847-286-0558
Fax 847-286-3258
Mr. David F. Dyer
Lands' End, Inc.
5 Lands' End Lane
Dodgeville, WI 53595
Dear Dave,
I wanted to provide you with this Letter of Understanding regarding some of the
major terms of your employment as an officer of Sears, Roebuck and Co. Pending
approval by the Boards of Directors of both Sears, Roebuck and Co. and Land's
End, Inc., the merger will result in employment terms as contained in your
Employment Agreement. Sears, Roebuck and Co. would like to supplement these
terms with the following provisions upon the close of the merger and your
assumption of duties as President and CEO - Lands' End and Executive Vice
President/ General Manager, Customer Direct - Sears, Roebuck and Co., reporting
directly to Alan Lacy, Chairman and Chief Executive Officer of Sears, Roebuck
and Co.
Your start date in this capacity is to be determined and will commence with
the close of the merger.
.. Base salary of $600,000 per year, paid on a semi-monthly basis.
.. Participation in the Sears Annual Incentive Plan. Your annual incentive
opportunity will be based on a bonus target equal to 85% of base salary,
amounting to $510,000 on an annualized basis. Depending on performance, you
can earn up to 230% of target, or $1,173,000. The annual incentive
performance objectives for your position are to be determined.
.. 50,000 non-qualified stock options that will vest in three equal annual
installments from the date of grant.
16,666 stock options will vest one year from the date of grant
- 16,666 stock options will vest two years from the date of grant
- 16,668 stock options will vest three years from the date of grant
310948
| | |
| Full Doc
| 2004 |
Non-Compete Agreement
Non-Compete Agreement (2K)
Doc #310853: This document is immediately available for purchase, but does not have a preview available for viewing.
Sears Roebuck & Co
exv10w30
Exhibit 10.30
AMENDMENT TO EXECUTIVE SEVERANCE
NON-COMPETE AGREEMENT
BETWEEN
LYLE HEIDEMAN AND SEARS, ROEBUCK AND CO.
NOVEMBER 13, 2001
The undersigned parties hereby amend the EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT dated November 13, 2001 (the ?Agreement?) in the following particulars:
1.)
By adding the following sentence to the beginning of Section 1(a):
. . .
310853
| | |
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| 2001 |
Opinion Letter Re: Sears Credit Account Master Trust II
Opinion Letter Re: Sears Credit Account Master Trust II (118K)
Doc #141682: Click preview link for longer preview.
SRFG, Inc.
3711 Kennett Pike
Greenville, Delaware 19807
Re:
Sears Credit Account Master Trust II, Series [______]
Ladies and Gentlemen:
We have acted as counsel to Sears, Roebuck and Co., a New York corporation ("Parent") and SRFG, Inc., a Delaware corporation, formerly known as Sears Receivables Financing Group, Inc. ("SRFG"), in connection with certain transactions (the "Transactions") contemplated by the following documents:
i. the First Amended and Restated Purchase Agreement, dated as of July 31, 1994, as amended (the "Purchase
. . .
141682
|
BNY
As referenced in this Opinion Letter Re: Sears Credit Account Master Trust II:
Bank of New York, – the need for [this partial] consolidation outweighs whatever harm it might create"); Holywell Corp. v. Bank of New York, 59 B.R. 340, 348 (S.D. Fla. 1986), aff'd, 826 F.2d
dt 41720
;
Bank One
As referenced in this Opinion Letter Re: Sears Credit Account Master Trust II:
Bank One, Na – by the
documents described on Exhibit A hereto, each among Sears, the Company and The First National Bank of
Chicago(now known as Bank One, Na tional Association), as Trustee (the "Trustee").
CHICAGO BERLIN CHARLOTTE COLOGNE HOUSTON LONDON LOS ANGELES NEW YORK WASHINGTON
INDEPENDENT MEXICO CITY CORRESPONDENT: JAUREGUI, NAVARETTE,
_____________
Bank One, Na – _______ Certificates identified in the ________ prospectus for those Certificates; Standard & Poor's Ratings Services, Moody's Investors Service, Inc., Fitch, Inc., and Bank One, Na tional Association may rely upon each of the foregoing opinions as if such opinions were addressed to them. This opinion speaks solely as
_____________
dt 100016
;
|
First National
As referenced in this Opinion Letter Re: Sears Credit Account Master Trust II:
First National Bank of
Chicago( – the date hereof (the "Series Supplement"), as amended by the
documents described on Exhibit A hereto, each among Sears, the Company and The First National Bank of
Chicago( now known as Bank One, National Association), as Trustee (the "Trustee").
CHICAGO BERLIN CHARLOTTE COLOGNE HOUSTON LONDON LOS ANGELES NEW YORK WASHINGTON
INDEPENDENT
_____________
dt 130106
;
Mayer Brown
As referenced in this Opinion Letter Re: Sears Credit Account Master Trust II:
MAYER, BROWN –
ex5_2
EX-5 3 ex5_2.htm FORM OF CREDITORS' RIGHTS OPINION OF MAYER, BROWN & PLATT
Exhibit 5.2
Mayer, Brown & Platt
190 SOUTH LA SALLE STREET
Mayer, Brown – ex5_2.htm FORM OF CREDITORS' RIGHTS OPINION OF MAYER, BROWN & PLATT
Exhibit 5.2
Mayer, Brown & Platt
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
Main Telephone
312-
Mayer, Brown – CITY CORRESPONDENT: JAUREGUI, NAVARETTE, NADER Y ROJAS
INDEPENDENT PARIS CORRESPONDENT: LAMBERT & LEE
12842291 01890920
Mayer, Brown & Platt
SRFG, Inc.
[Closing Date]
Page 2
The agreements described in items (i)
Mayer, Brown – law as the governing law in the Transfer Agreements.
I. ASSUMPTIONS OF FACT
12842291 01890920
Mayer, Brown & Platt
SRFG, Inc.
[Closing Date]
Page 3
As to all factual matters material
Mayer, Brown – generated from time to time by Parent or Sears National Bank, its affiliate.
12842291 01890920
Mayer, Brown & Platt
SRFG, Inc.
[Closing Date]
Page 4
Receivables arising under the Credit Agreements
dt 36147
;
More... |
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For Immediate Release
For Immediate Release (33K)
Doc #310888: Click preview link for longer preview.
News Release
CONTACT:
Sears Public Relations And Communications
(847) 286-8371
FOR IMMEDIATE RELEASE
[graphic omitted]
Sears Reports Record 2002 Earnings Per Share Comparable EPS of $4.92 For Year; $2.11 For Fourth Quarter
HOFFMAN ESTATES, Ill., Jan. 16 /PRNewswire/ -- Sears, Roebuck and Co.
reported today net income, excluding noncomparable items of
$1.6 billion, or $4.92 per share for 2002 as compared to $4.22 in 2001, a
17 percent per share increase. On a reported basis, net income was
$1.4 billion or $4.29 per share for 2002 as compared to $2.24 last year. . . .
310888
| | |
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| 2002 |
For Immediate Release
For Immediate Release (33K)
Doc #310908: Click preview link for longer preview.
News Release
CONTACT:
Sears Public Relations And Communications
(847) 286-8371
FOR IMMEDIATE RELEASE
Sears Reports Lower Than Expected Third Quarter EPS of $0.59
Provision Increase Leads to Revised 2002 Outlook
HOFFMAN ESTATES, Ill., Oct. 17 /PRNewswire-FirstCall/ -- Sears, Roebuck
and Co. (NYSE: S) today reported third quarter 2002 net income of $189
million, or $0.59 per share, a 26 percent decrease from the prior year third
quarter earnings of $0.80 per share. These results reflect a $222 million
increase in the domestic provision . . .
310908
| | |
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| 2002 |
For Immediate Release
For Immediate Release (2K)
Doc #310910: Click preview link for longer preview.
MEDIA CONTACT:
Janice R. Drummond
(847) 286-8316
FOR IMMEDIATE RELEASE
October 4, . . .
310910
|
Duke
As referenced in this For Immediate Release:
Duke University. – Behring, Richter held senior finance positions with PepsiCo. Richter is a graduate of George Washington University and holds a master's degree from Duke University.
Sears, Roebuck and Co. is a broadline retailer with significant service and credit businesses. In 2001, the company's annual revenue was
_____________
dt 326459
;
|
Northwestern
As referenced in this For Immediate Release:
Northwestern University. – in 1994 as chief financial officer. Liska is a graduate of the University of Notre Dame and holds a master's degree from Northwestern University. Liska is a CPA.
Before he joined Sears, Richter was senior vice president and chief financial officer for Dade Behring International from
_____________
dt 316562
|
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| 2002 |
Press Release
Press Release (2K)
Doc #310916: Click preview link for longer preview.
MEDIA CONTACT:
Peggy A. Palter
(847) 286-8361
INVESTOR RELATIONS CONTACT:
Pam White
(847) 286-1468
FOR IMMEDIATE RELEASE:
October 2, 2002 . . .
310916
| | |
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| 2000 |
For Immediate Release
For Immediate Release (2K)
Doc #311023: Click preview link for longer preview.
MEDIA CONTACT Peggy A. Palter
(847) 286-8361
FOR IMMEDIATE RELEASE
August 9, . . .
311023
| | |
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Management Agreement
Management Agreement (52K)
Doc #270847: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.I.F.3
{SEQUENCE}22
{FILENAME}y62648exv10wiwfw3.txt
{DESCRIPTION}KINGS PLAZA MANAGEMENT AGREEMENT
{TEXT}
{PAGE}
Exhibit 10(i)F(3)
KINGS PLAZA MANAGEMENT
AGREEMENT
THIS KINGS PLAZA MANAGEMENT AGREEMENT dated as of the 31 day of May,
2001 (the "Management Agreement" between ALEXANDER'S KINGS PLAZA LLC, a Delaware
limited liability company having an office at 210 Route 4 East, Paramus, New
Jersey 07652 ("Owner") and VORNADO MANAGEMENT CORP., a New Jersey corporation
having an office at 210 Route 4 East, Paramus, New Jersey 07652 ("Manager").
IN CONSIDERATION of the mutual promises and covenants herein
contained. Owner and Manager agree as follows:
ARTICLE I
Appointment of Manager
A. Owner hereby appoints Manager, on the conditions and for the term
hereinafter provided, to act for it in the operation, maintenance and management
of the Kings Plaza Property identified on Exhibit A attached hereto and made a
part hereof (the "Property"), which management duties are more particularly
described in Article IV. Manager hereby accepts said appointment to the extent
of, and subject to, the conditions set forth below.
B. Owner and Manager hereby acknowledge that affiliates of Owner and
Manager have heretofore entered into that certain Real Estate Retention
Agreement, dated as of July 20, 1992 (the "Retention Agreement"), whereby
Vornado Realty Trust, as successor in interest to Vornado, Inc., has agreed to
act as leasing agent with respect to, among other things, the space at the
Property currently leased to Sears, Roebuck & Co.
ARTICLE II
Term
A. The term of this Agreement shall commence on the date hereof and
shall continue until midnight on the date immediately following the first
anniversary of the date hereof (the "Initial Expiration Date") unless this
Agreement shall be terminated and the obligations of the parties hereunder shall
sooner cease and terminate, as hereinafter provided; provided, however, that the
term of this Management Agreement shall automatically extend for consecutive
one-year periods following the Initial Expiration Date unless Manager or Owner
provides the other with written notice, at least six months prior to the
beginning of any such additional one-year period, of its election to terminate
this Management Agreement. The amount of the Management Fee (as hereinafter
defined) shall be subject to review by the parties at the end of the initial
term and at the end of each one-year term thereafter.
{PAGE}
ARTICLE III
Management Fee
A. Owner shall pay Manager, as Manager's entire compensation for the
services rendered hereunder in connection with the management of the Property, a
management fee (the "Management Fee") equal to (i) $300,000, per annum, payable
in equal monthly installments, in arrears, in the amount of $25,000, each on the
tenth day of each calendar month beginning with the first calendar month after
the date hereof and (ii) 3% of the gross income derived from the Property,
payable quarterly in arrears. As used in the preceding sentence, "gross income"
means all revenues of any kind and nature (including without limitation, all
minimum and percentage rents actually received), whether ordinary or
extraordinary, foreseen or unforeseen, received or accrued form the use and/or
occupancy of the improvements constituting the Property or any part thereof,
exclusive of parking revenues and exclusive of monies received or accrued from
any occupants or users of any part of such improvements for reimbursement for
expenses of the Property, including but not limited to real estate taxes, common
area maintenance charges, insurance or utilities as provided in the space leases
for tenants. "Gross income" shall not include proceeds of any sale, refinancing,
condemnation or insured casualty in respect of the Property." In the event that
this Agreement shall commence on a date other than the first day of a calendar
month or shall terminate on a date other than the last day of a calendar month,
the installment of the Management Fee payable for that month shall be prorated
for the actual number of days that this Agreement is effective in that calendar
month.
B. Manager shall receive no commissions, fees or other compensation
(other than the Management Fee) in connection with any leasing or sale of any
part of or the entire Property or the procuring of any financing or refinancing
with respect thereto; provided, however, that nothing contained herein shall in
any way restrict the commissions, fees and other compensation otherwise payable
to any affiliate of Manager by Owner or its affiliates pursuant to the Retention
Agreement.
C. In the event that Manager desires to provide services not
required to be performed hereunder ("Additional Services") for the benefit of a
tenant of the Property, Manager shall notify Owner in advance of its intention
to provide Additional Services to a tenant or tenants where those services are
substantial in nature. Owner shall have the right to prohibit Manager from
undertaking such services, if, in its judgment, the performance by Manager of
the Additional Services would adversely affect the professional relationship and
duties of Manager created by this Agreement.
ARTICLE IV
Management Services
A. Manager agrees to operate and manage the Property and to perform.
or cause to be performed by outside contractors and under Manager's supervision,
the following functions on behalf of Owner in an efficient and diligent manner
using the same standard of care, including bidding and selection processes,
segregation of funds. internal controls and internal
2
{PAGE}
auditing, used by Vornado Realty Trust in connection with its business and in
connection with properties owned and managed by Vornado Realty Trust:
1. Preparing, or causing to be prepared at Owner's expense,
and filing all income, franchise and other tax returns relating to
the Property required to be filed by Owner.
2. Keeping true and complete books of account in which shall
be entered fully and accurately each transaction of Owner's business
relating to the Property. The books shall be kept in accordance with
the accrual method of accounting, and shall reflect all transactions
of Owner's business relating to the Property.
3. Except as otherwise provided hereunder, procuring, at
Owner's expense and at the direction of Owner or the Owner's
insurance brokers or insurance advisors, any insurance required or
desirable in connection with Owner's business relating to the
Property or the employees required to operate Owner's business
relating to the Property and errors and omissions insurance for
Manager, under which Owner shall be the sole beneficiary. Manager
shall not settle any claim for a settlement amount in excess of
$100,000 without the approval of Owner.
4. Providing all general bookkeeping and accounting services
required by the provisions of this Agreement at the expense of
Manager. Any independent certified public accountant engaged by
Manager shall be subject to the approval of Owner and all fees and
expenses payable to such accountant shall be at Owner's expense.
270847
|
Sears, Roebuck
As referenced in this Management Agreement:
Sears, Roebuck – Vornado, Inc., has agreed to
act as leasing agent with respect to, among other things, the space at the
Property currently leased to Sears, Roebuck & Co.
ARTICLE II
Term
A. The term of this Agreement shall commence on the date hereof and
shall continue until midnight on
_____________
dt 178285
;
Alexander's
As referenced in this Management Agreement:
Alexander's
Inc – with the operation and management of the Property.
ARTICLE V
Annual Budget
A. On or before the beginning of each fiscal year of Alexander's
Inc ., Manager shall prepare and submit to Owner a proposed budget (hereinafter
referred to as the "Proposed Budget") of the estimated operating and
_____________
Alexander's, Inc – notice to the other party if Manager
or Owner shall determine in good faith that this Agreement shall or may deprive
Manager or Alexander's, Inc . of any benefits appurtenant to that Party's future
qualification as a REIT under all applicable laws, including, without
limitation, the Internal
_____________
Alexander's Inc – H. Notwithstanding anything to the contrary contained elsewhere
herein, in the event that the Management and Development Agreement dated
February 6. 1995 between Alexander's Inc . and Vornado Realty Trust is terminated
for any reason, Owner shall have the option to terminate this Management
Agreement upon written notice
_____________
.Alexander's, Inc – of Vornado Realty Trust
or any affiliate thereto in connection with any loan facility provided by
Vornado Realty Trust or such affiliate to .Alexander's, Inc . and/or its
subsidiary.
H. Anything contained in this Agreement to the contrary
notwithstanding, Manager's agreement to undertake the obligations set
_____________
Alexander's (inc – REIT entitled
to the benefits of Section 856 et seq., of the Code, (B) the imposition of any
penalty or similar tax on Alexander's (inc luding, without being limited to, the
tax imposed on the failure to meet certain income requirements under Section
857(b)(5) of the
_____________
dt 173602
;
|
Vornado Realty
As referenced in this Management Agreement:
Vornado Realty Trust, – Owner and
Manager have heretofore entered into that certain Real Estate Retention
Agreement, dated as of July 20, 1992 (the "Retention Agreement"), whereby
Vornado Realty Trust, as successor in interest to Vornado, Inc., has agreed to
act as leasing agent with respect to, among other things, the space
_____________
Vornado Realty Trust – using the same standard of care, including bidding and selection processes,
segregation of funds. internal controls and internal
2
{PAGE}
auditing, used by Vornado Realty Trust in connection with its business and in
connection with properties owned and managed by Vornado Realty Trust:
1. Preparing, or causing to be
_____________
Vornado Realty Trust: – internal
2
{PAGE}
auditing, used by Vornado Realty Trust in connection with its business and in
connection with properties owned and managed by Vornado Realty Trust:
1. Preparing, or causing to be prepared at Owner's expense,
and filing all income, franchise and other tax returns relating to
_____________
Vornado Realty Trust – Agreement to any Specified Vornado Affiliate (as defined herein)
without the consent of Owner, provided that, (a) in connection with any such
assignment, Vornado Realty Trust provides to Owner a guarantee, in form and
substance reasonably satisfactory to Owner, of the duties and obligations of the
Specified Vornado Affiliate
_____________
Vornado Realty Trust – Specified Vornado Affiliate under this Agreement and agrees, to the extent
necessary, to make available to the Specified Vornado Affiliate the resources of
Vornado Realty Trust for the purposes of carrying out such duties and
obligations, (b) notwithstanding any such assignment to a Specified Vornado
Affiliate, the indemnification of
_____________
dt 173749
|
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License/Lease Agreement [Form]
License/Lease Agreement [Form] (46K)
Doc #168492: Click preview link for longer preview.
FORM OF
LICENSE/LEASE AGREEMENT
OPTICAL
THIS LICENSE/LEASE AGREEMENT (hereinafter referred to as "Agreement")
is made and entered into as of, by and between SEARS, ROEBUCK AND CO., a New
York corporation (hereinafter referred to as "Sears") and COLE VISION
CORPORATION, a Delaware corporation, (hereinafter referred to as
"Licensee/Tenant").
WHEREAS, Sears operates a retail store located at:
REGION DIST. STORE LOCATION
------ ----- ----- --------
(hereinafter referred to as the "Store"), and
WHEREAS, Licensee/Tenant desires to operate an optical concession in
the Store,
NOW THEREFORE, Sears and Licensee/Tenant hereby mutually agree as
follows:
PURPOSE OF AGREEMENT
1. Licensee/Tenant is in the business described in this paragraph, and
has expertise in that business and has a marketing plan for that business. Sears
hereby leases to Licensee/Tenant the space described below, and grants
Licensee/Tenant the privilege of conducting and operating within that space, and
Licensee/Tenant shall conduct and operate, pursuant to the terms, provisions and
conditions contained in this Agreement, a concession for the sale of optical
merchandise, goods, and supplies; and for taking orders for repair, and repair
of optical merchandise, goods and supplies and for visual eye exams and for the
sale of repair and replacement certificates (hereinafter referred to as
"Concession"), in the Store.
TERM
2. The term of this Agreement (hereinafter referred to as "Term") shall
be for a period beginning on and ending at the close of business on unless
sooner terminated under any of the provisions of this Agreement.
{PAGE}
REPRESENTATION TO LICENSEE/TENANT
3. Sears makes no promises or representations whatsoever as to the
potential amount of business Licensee/Tenant can expect at any time during the
Term. Licensee/Tenant is solely responsible for any expenses incurred related to
this Agreement. Sears shall not be obligated for any expense incurred by
Licensee/Tenant in connection with any increase in the number of
Licensee/Tenant's employes or expenditures made by Licensee/Tenant for
additional facilities or equipment.
UNAUTHORIZED SALES
4. Licensee/Tenant covenants that it will use the space occupied by the
Concession only for the purpose expressly authorized in this Agreement, and will
render only those services and sell only such merchandise in the Concession as
expressly authorized by this Agreement.
FEE
5. (a) Licensee/Tenant shall pay to Sears, as provided in Paragraph
26 of this Agreement, a fee.
NET SALES
(b) "Net Sales" means gross sales less returns, sales taxes, and
allowances for sales of merchandise, goods and supplies made in, upon or from
the Concession location, and includes:
(1) Charges for repair work made pursuant to orders taken or
received in, upon or from the Concession location and
(2) Charges for services performed in connection with the sale
in, upon or from the Concession location of merchandise, goods and supplies.
GROSS SALES
(c) "Gross Sales" means all of Licensee/Tenant's direct or indirect
sales of services and merchandise from the Concession. Eye exam fees are
excluded from Gross Sales.
HOLDING OVER
6. Licensee/Tenant shall pay Sears double the monthly Fee,
168492
| Cole Vision Corporation;
| Cole National Group Inc.
|
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| 2003 |
License/Lease Agreement [Form]
License/Lease Agreement [Form] (46K)
Doc #168493: Click preview link for longer preview.
FORM OF
LICENSE/LEASE AGREEMENT
OPTICAL
THIS LICENSE/LEASE AGREEMENT (hereinafter referred to as "Agreement") is
made and entered into as of, by and between SEARS, ROEBUCK AND CO., a New York
corporation (hereinafter referred to as "Sears") and COLE VISION CORPORATION, a
Delaware corporation, (hereinafter referred to as "Licensee/Tenant").
WHEREAS, Sears operates a retail store located at:
REGION DIST. STORE LOCATION
------ ----- ----- --------
(hereinafter referred to as the "Store"), and
WHEREAS, Licensee/Tenant desires to operate an optical concession in the
Store,
NOW THEREFORE, Sears and Licensee/Tenant hereby mutually agree as follows:
PURPOSE OF AGREEMENT
1. Licensee/Tenant is in the business described in this paragraph, and
has expertise in that business and has a marketing plan for that business. Sears
hereby leases to Licensee/Tenant the space described below, and grants
Licensee/Tenant the privilege of conducting and operating within that space, and
Licensee/Tenant shall conduct and operate, pursuant to the terms, provisions and
conditions contained in this Agreement, a concession for the sale of optical
merchandise, goods, and supplies; and for taking orders for repair, and repair
of optical merchandise, goods and supplies and for visual eye exams and for the
sale of repair and replacement certificates (hereinafter referred to as
"Concession"), in the Store.
TERM
2. The term of this Agreement (hereinafter referred to as "Term") shall
be for a period beginning on and ending at the close of business on unless
sooner terminated under any of the provisions of this Agreement.
{PAGE}
REPRESENTATION TO LICENSEE/TENANT
3. Sears makes no promises or representations whatsoever as to the
potential amount of business Licensee/Tenant can expect at any time during the
Term. Licensee/Tenant is solely responsible for any expenses incurred related to
this Agreement. Sears shall not be obligated for any expense incurred by
Licensee/Tenant in connection with any increase in the number of
Licensee/Tenant's employes or expenditures made by Licensee/Tenant for
additional facilities or equipment.
UNAUTHORIZED SALES
4. Licensee/Tenant covenants that it will use the space occupied by the
Concession only for the purpose expressly authorized in this Agreement, and will
render only those services and sell only such merchandise in the Concession as
expressly authorized by this Agreement.
FEE
5. (a) Licensee/Tenant shall pay to Sears, as provided in Paragraph 26 of
this Agreement, a fee.
NET SALES
(b) "Net Sales" means gross sales less returns, sales taxes, and
allowances for sales of merchandise, goods and supplies made in, upon or from
the Concession location, and includes:
(1) Charges for repair work made pursuant to orders taken or
received in, upon or from the Concession location and
(2) Charges for services performed in connection with the sale
in, upon or from the Concession location of merchandise, goods and supplies.
GROSS SALES
(c) "Gross Sales" means all of Licensee/Tenant's direct or indirect
sales of services and merchandise from the Concession. Eye exam fees are
excluded from Gross Sales.
HOLDING OVER
6. Licensee/Tenant shall pay Sears double the monthly Fee,
{PAGE}
for each month or portion of a month for which Licensee/Tenant of the Concession
area, retains possession of the Concession area or any part after the
termination of the Term or Licensee/Tenant's right of possession, whether by
lapse of time or otherwise. The provisions of this Paragraph shall not
constitute a waiver of any other right or remedy of Sears under this Agreement
or provided by law or equity. No such holding over shall renew or extend the
Term even if Sears accepts Fee, and Licensee/Tenant shall have no right to
continue possession of the premises, and shall be a Licensee/Tenant at
sufferance only.
CONSTRUCTION OF LEASEHOLD IMPROVEMENTS
7. (a) Licensee/Tenant shall determine (based on good engineering
practices) the nature, scope, size of the Concession and Licensee/Tenant shall
determine the nature, scope, size of the furniture, fixtures and equipment in
the Concession. Licensee/Tenant shall submit plans to Sears, Sears must approve
such plans, before commencement of construction. Sears will arrange for
construction of all improvements. The expense of all such construction and
equipment shall be divided between Sears and Licensee/Tenant as described in
Exhibit A.
TITLE TO LEASEHOLD IMPROVEMENTS
(b) All Leasehold Improvements shall become the property of Sears at
the termination of the Agreement. At the termination of the Agreement, or if
Licensee/Tenant vacates or abandons the Concession, Licensee/Tenant shall convey
to Sears, without charge, good title to the Leasehold Improvements free from any
and all liens, charges, encumbrances and rights of third parties, by means of a
Quit Claim Deed and any other documents required by Sears.
CONCESSION FAILS TO BECOME FULLY OPERATIONAL
(c) If the Concession is not fully operational within thirty (30)
days after completion of construction of the concession area as a result of
delay by Licensee/Tenant, Sears may, at Sears option, terminate this Agreement
and have no further obligation to Licensee/Tenant, and Licensee/Tenant shall
reimburse Sears within ten (10) days after receipt of an invoice, for Sears
cost, of putting the space involved back to its condition immediately prior to
the commencement of such construction.
168493
| Cole Vision Corporation;
| Cole National Corp.
|
Preview
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| 2000 |
Mortgage and Security Agreement [Amended, Restated and Consolidated]
Mortgage and Security Agreement [Amended, Restated and Consolidated] (318K)
Doc #270870: Click preview link for longer preview.
ALEXANDER'S REGO SHOPPING CENTER, INC., as mortgagor
(Borrower)
to
THE CHASE MANHATTAN BANK, as mortgagee
(Lender)
---------------------------------------------
AMENDED, RESTATED AND CONSOLIDATED
MORTGAGE AND
SECURITY AGREEMENT
----------------------------------------------
Dated: May 12, 1999
Location: Rego Park Plaza
96-05 Queens Boulevard
Queens, New York
Block: 2084
Lot: 101
County: Queens
PREPARED BY AND UPON
RECORDATION RETURN TO:
MESSRS. CADWALADER, WICKERSHAM & TAFT
100 Maiden Lane
New York, New York 10038
Attention: William P. McInerney, Esq.
File No.: 41853.003
THIS MORTGAGE DOES NOT COVER REAL PROPERTY PRINCIPALLY IMPROVED BY ONE OR MORE
STRUCTURES CONTAINING IN THE AGGREGATE NOT MORE THAN SIX RESIDENTIAL DWELLING
UNITS, EACH DWELLING UNIT HAVING ITS OWN COOKING FACILITIES.
{PAGE} 2
{TABLE}
{CAPTION}
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE 1 - GRANTS OF SECURITY
{S} {C} {C}
Section 1.1 Property Mortgaged
|