FIRST AMENDMENT
TO
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
VALCOR, INC. AND I.C.H. CORPORATION
THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT BETWEEN VALCOR, INC. AND
I.C.H. CORPORATION dated and effective as of April 18, 1997 (the "Amendment") is
by and between I.C.H. CORPORATION, a Delaware corporation (the "Buyer"), and
VALCOR, INC., a Delaware corporation (the "Seller").
RECITALS
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WHEREAS, Seller and Buyer entered into a Stock Purchase Agreement dated as
of February 7, 1997 (the "Purchase Agreement"); and
WHEREAS, Seller and Buyer desire to amend certain provisions of the
Purchase Agreement as set forth in this Amendment;
COVENANTS
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NOW, THEREFORE, in consideration of the foregoing, and in further
consideration of the mutual covenants and considerations herein contained,
Seller and Buyer hereby agree as follows:
1. Exhibit A. Exhibit A attached to the Agreement is hereby deleted and
Exhibit A attached hereto is substituted for the original Exhibit A and
incorporated into the Agreement as if attached thereto. For all purposes related
to the Agreement, the term "Agreed Value" shall mean and refer to such
information as set forth on Exhibit A attached hereto.
2. Exhibit B. Exhibit B attached to the Agreement is hereby amended by
deleting the existing Section 2(b) and substituting the following:
"List of Sybra indebtedness to be repaid in full on the Closing date by
Buyer:
Valcor Credit Facility $20,000,000
Such Sybra indebtedness may be increased on or prior to the Closing date
and shall be repaid in full on the Closing Date by Buyer in an aggregate
amount of $23,772,000."
Exhibit B attached to the Agreement is further amended by inserting under
Section 4(c) thereof the following:
Consents required for assignment and sublease of sandwich leases:
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▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇"
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▇▇▇▇▇▇▇ ▇ attached to the Agreement is further amended by deleting existing
Schedule B-3 and substituting new Schedule B-3 attached hereto.
3. Section 2(d). Section 2(d) of the Agreement is amended by deleting the
phrase "April 14, 1997" and substituting the phrase "April 30, 1997."
4. Section 2(g). Section 2(g) of the Agreement is amended and restated as
follows:
"(g) Contingent Consideration. Buyer agrees to pay Seller additional,
contingent consideration computed in accordance with this ss.2(g).
(i) Subject to the other provisions of this ss.2(g)(i), commencing on
the Closing Date and continuing through the earliest of (a) the date Sybra
enters into a lease for Unit #740 or for another location at the ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, which lease is for a term of one year or
more and requires Sybra to make expenditures for tenant improvements in an
amount in excess of $350,000 (a "Qualifying Lease"), (b) the date upon
which Buyer pays in full all of the amounts due under ss.2(g)(ii) and/or
ss.2(g)(iii), as applicable, Buyer shall pay Seller an amount equal to 50%
of the Monthly Free Cash Flow of Unit #740 for each Fiscal Month, or
portion thereof (the "Monthly Contingent Consideration"). Buyer shall pay
all amounts due to Seller for Monthly Contingent Consideration under this
ss.2(g)(i) by wire transfer or delivery of other immediately available
funds within 15 business days after the last business day of each such
Fiscal Month, or portion thereof; provided however, that with respect to
the period commencing on the Closing Date and ending on July 31, 1997 (the
"Initial Period"), no payments shall be due and payable until August 15,
1997 and, provided further, if Sybra enters into a Qualifying Lease within
the Initial Period, no payments of Monthly Contingent Consideration under
this ss.2(g)(i) shall be due or payable. If Sybra does not enter into a
Qualifying Lease during the Initial Period, Buyer shall pay Seller on
August 15, 1997 an aggregate amount equal to the Monthly Contingent
Consideration for each Fiscal Month during the Initial Period. If Sybra
enters into a Qualifying Lease after the Initial Period, then any Monthly
Contingent Consideration previously paid shall be reimbursed to Buyer by
Seller by wire transfer or delivery of other immediately available funds
within 15 business days after Buyer notifies Seller that Sybra has entered
into a Qualifying Lease.
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(ii) In the event that, after the Closing Date, (a) Sybra enters into
a lease for Unit #740 or for another location at the Park City Mall,
Lancaster, Pennsylvania, or (b) Sybra has not been forced by the lessor to
vacate Unit #740 on or before the second anniversary of the Closing Date,
Buyer shall pay Seller the sum of $2,000,000 (the "Lump Sum Contingent
Consideration") on the second anniversary of the Closing Date (the
"Determination Date"). At Buyer's option, if Sybra has not entered into a
lease for Unit #740 or for another location at the ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ and Sybra has not been forced by the lessor to
vacate Unit #740 on or before the second anniversary of the Closing Date,
the Determination Date may be extended from the second anniversary of the
Closing Date to the third anniversary of the Closing Date, provided that
Buyer shall have given Seller written notice of such extension on or before
30 days prior to the second anniversary of the Closing Date, and, provided
further, that Buyer shall pay Seller an amount equal to 50% of the Monthly
Free Cash Flow of Unit #740 for each Fiscal Month, or portion thereof (the
"Additional Monthly Contingent Consideration"), during the period from the
second anniversary of the Closing Date to the date of payment in full of
the Lump Sum Contingent Consideration. In the event Buyer makes payments of
Additional Monthly Contingent Consideration in respect of a Fiscal Month,
no amounts shall be due from Buyer to Seller for Monthly Contingent
Consideration for the same Fiscal Month. Buyer shall pay the Lump Sum
Contingent Consideration to Seller by wire transfer or delivery of other
immediately available funds within 5 business days after the Determination
Date. Buyer shall pay all amounts due to Seller for Additional Monthly
Contingent Consideration under this ss.2(g)(ii) by wire transfer or
delivery of other immediately available funds within 15 business days after
the last business day of each applicable Fiscal Month. Upon and after the
date of payment in full of all amounts due pursuant to this ss.2(g)(ii),
Buyer shall not be obligated to pay Seller any amounts pursuant to
ss.2(g)(iii).
(iii) If, prior to the payment of the Lump Sum Contingent
Consideration due pursuant to ss.2(g)(ii), (a) the lease in effect as of
the Closing Date for Unit #740 is terminated and, as a result, Sybra is
forced by the lessor to vacate Unit #740, and (b) Sybra has not entered
into a lease for another location at the ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, Buyer shall pay Seller cash in an amount equal to 50% of the
cumulative Monthly Free Cash Flow of Unit #740, calculated from the Closing
Date to the date upon which Sybra vacates Unit #740 (the "Supplemental
Consideration"). Buyer shall pay the amount due for Supplemental
Consideration pursuant to this ss.2(g)(iii) to Seller by wire transfer or
delivery of other immediately available funds, within 5 business days after
the date Buyer vacates Unit #740. Unless Buyer subsequently enters into a
lease for another location at the ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
upon and after the date of payment in full of the Supplemental
Consideration due pursuant to this ss.2(g)(iii), Buyer shall not be
obligated to pay Seller the Lump Sum Contingent Consideration pursuant to
ss.2(g)(ii) nor, pursuant to ss.2(g)(i) and (ii), any amounts for Monthly
Contingent Consideration or Additional Monthly Contingent Consideration for
periods commencing after the date of such
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payment in full of the Supplemental Consideration due pursuant to this
ss.2(g)(iii). In the event that Buyer subsequently enters into a lease for
another location at the ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, Buyer
shall be obligated to pay the Lump Sum Contingent Consideration due
pursuant to ss.2(g)(ii) and, pursuant to ss.2(g)(i) and (ii), amounts due
for Monthly Contingent Consideration or Additional Monthly Contingent
Consideration for all periods prior to payment in full of the Lump Sum
Contingent Consideration pursuant to ss.2(g)(ii).
(iv) The foregoing notwithstanding, in the event that Sybra's lease
with respect to Unit #5666 is terminated as a result of Seller's failure to
obtain the consent of the landlord for Unit #5666 with respect to the
transactions contemplated by this Agreement, the Lump Sum Contingent
Consideration, if and when due and payable to Seller, shall be reduced by
$158,000."
5. Section 11(d). Section 11(d) of the Agreement is hereby amended by
deleting the word "and" on the seventh line and inserting the following language
at the end thereof:
"and (iii) Buyer may assign its right to purchase the Sybra Shares
pursuant to Section 2 to any wholly-owned subsidiary of Buyer;
provided, however, that any such assignment shall not in any way
affect (a) Buyer's right to receive, under certain circumstances,
certain post-closing payments from Seller pursuant to Section 2(f),
(b) Buyer's obligation, under certain circumstances, to make certain
post-closing payments to Seller pursuant to Section 2(g) or (c) any
other rights or obligations of Buyer under this Agreement."
6. Except as amended, modified or supplemented by this Amendment, the
parties confirm and ratify the terms and provisions of the Purchase Agreement.
* * * * *
IN WITNESS WHEREOF, this Amendment is entered into by the duly
authorized representatives of the parties hereto as of the date first above
written.
I.C.H. CORPORATION
By: ________________________________
Title: _____________________________
VALCOR, INC., a Delaware corporation
By: ________________________________
Title: _____________________________
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23152.d7
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