EXHIBIT 4.7
UNITS PURCHASE AGREEMENT
BETWEEN
VALHI, INC.
AND
U.S. RESTAURANT PROPERTIES MASTER L.P.
April 18, 1997
TABLE OF CONTENTS
1. Definitions.....................................................1
2. Purchase and Sale of Valhi Units................................3
(a) Basic Transaction.....................................3
(b) Purchase Price........................................3
(c) The Closing...........................................3
(d) Deliveries at the Closing.............................4
3. Representations and Warranties..................................4
(a) Representations and Warranties of Seller..............4
(b) Representations and Warranties of Buyer...............6
(c) Lack of Marketability.................................8
4. Pre-Closing Covenants...........................................8
(a) General...............................................8
(b) Notices and Consents..................................8
(c) Access................................................9
(e) Notice of Developments................................9
5. Post-Closing Covenants.........................................9
(a) General...............................................9
(b) Litigation Support....................................9
(c) Public Information...................................10
(d) Shelf Registration...................................10
(e) Shelf Registration Procedures........................10
(f) NYSE Listing Application.............................17
(g) No Trading...........................................17
6. Conditions to Obligation to Close..............................18
(a) Conditions to Obligation of Buyer....................18
(b) Conditions to Obligation of Seller...................19
7. Remedies for Breaches of this Agreement........................19
(a) Survival of Representations and Warranties...........19
(b) Indemnification Provisions for Benefit of Buyer......20
(c) Indemnification Provisions for Benefit of Seller.....20
(d) Matters Involving Third Parties......................20
(e) Determination of Adverse Consequences................20
(f) Other Indemnification Provisions.....................21
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8. Termination....................................................21
(a) Termination of Agreement.............................21
(b) Effect of Termination................................22
10. Miscellaneous.................................................22
(a) Press Releases and Public Announcements..............22
(b) No Third Party Beneficiaries.........................22
(c) Entire Agreement.....................................22
(d) Succession and Assignment............................22
(e) Counterparts.........................................23
(f) Headings............................................23
(g) Notices..............................................23
(h) Governing Law........................................24
(i) Amendments and Waivers..............................24
(j) Severability........................................24
(k) Expenses.............................................24
(l) Construction........................................24
(m) Incorporation of Exhibits.............................25
EXHIBITS
EXHIBIT A Disclosure Schedule
EXHIBIT B Form of Standstill Agreement
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UNITS PURCHASE AGREEMENT
This Units Purchase Agreement (the "Agreement") is entered into as of
April 18, 1997, by and between VALHI, INC., a Delaware corporation (the "Buyer")
and U.S. RESTAURANT PROPERTIES MASTER L.P., a Delaware limited partnership (the
"Seller"). Buyer and Seller are referred to individually as a "Party" and
collectively as the "Parties."
This Agreement contemplates a transaction in which Buyer will purchase
for cash from Seller, and Seller will sell to Buyer, certain units of limited
partnership interest of Seller represented by depositary receipts (the "Units").
Now, therefore, in consideration of the premises and the mutual
promises, representations, warranties and covenants set forth below, the Parties
agree as follows.
1. DEFINITIONS.
"ADVERSE CONSEQUENCES" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses, and fees, including court costs and reasonable attorneys' fees and
expenses.
"ASSET PURCHASE AGREEMENT" means the Asset Purchase Agreement dated as
of December 23, 1996 between Seller and Sybra, Inc., a Delaware corporation.
"BUYER" has the meaning set forth in the preface above.
"CLOSING" has the meaning set forth in ss.2(c) below.
"CLOSING DATE" has the meaning set forth in ss.2(c) below.
"COMMISSION" means the Securities and Exchange Commission and any
successor agency.
"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of Seller and its Subsidiaries that is not already
generally available to the public.
"DISCLOSURE SCHEDULE" has the meaning set forth in ss.3 below.
"EFFECTIVE DATE" has the meaning set forth in ss.2(e) below.
"FORM 10-K" has the meaning set forth in ss.3 below.
"FORMS 10-Q" has the meaning set forth in ss.3 below.
"▇▇▇▇ - ▇▇▇▇▇ - ▇▇▇▇▇▇ ACT" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
"HOLDERS" has the meaning set forth in ss.5(d) below.
"HOLDERS' COUNSEL" has the meaning set forth in ss.5(e) below.
"INDEMNIFIED PARTY" has the meaning set forth in ss.7(d) below.
"INDEMNIFYING PARTY" has the meaning set forth in ss.7(d) below.
"KNOWLEDGE" means actual knowledge without independent investigation of
the referenced person or, if an entity, the executive officers of the referenced
entity.
"LOSSES" has the meaning set forth in ss.5(e) below.
"ORDINARY COURSE OF BUSINESS" means, with respect to any Person, the
ordinary course of such Person's business consistent with past custom and
practice (including, without limitation, with respect to quantity and
frequency).
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"PRIME RATE" has the meaning set forth in ss.7(e) below.
"PROSPECTUS" has the meaning set forth in ss.5(e) below.
"PURCHASE PRICE" has the meaning set forth in ss.2(b) below.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SECURITY INTEREST" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest.
"SELLER" has the meaning set forth in the preface above.
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"SHELF REGISTRATION" has the meaning set forth in ss.5(d) below.
"SHELF REGISTRATION PERIOD" has the meaning set forth in ss.5(d) below.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in ss.5(d)
below.
"SUBSIDIARY" means any corporation or other entity with respect to
which a specified Person (or a Subsidiary thereof) owns a majority of the common
stock or other equity interests, or has the power to vote or direct the voting
of sufficient securities to elect a majority of the directors or other persons
performing similar functions with respect to such entity.
"STANDSTILL AGREEMENT" means an agreement substantially in the form of
Exhibit B attached hereto and incorporated herein by this reference.
"STOCK PURCHASE AGREEMENT" means the Stock Purchase Agreement dated
February 7, 1997 by and between Valcor, Inc., a Delaware corporation and I.C.H.
Corporation, a Delaware corporation.
"THIRD PARTY CLAIM" has the meaning set forth in ss.7(d) below.
"UNITS" has the meaning set forth in the preface above.
"VALHI UNITS" shall have the meaning set forth in ss.2(a) below.
2. PURCHASE AND SALE OF VALHI UNITS.
(a) BASIC TRANSACTION. On the terms and subject to the conditions of
this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell
to Buyer, at Closing, for the consideration set forth below, 222,222 newly
issued Units (the "Valhi Units").
(b) PURCHASE PRICE. Buyer agrees to pay to Seller at the Closing
$6,000,000 (the "Purchase Price") by delivery of cash in the amount of the
Purchase Price payable by wire transfer or delivery of other immediately
available funds.
(c) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Buyer in Dallas,
Texas, commencing at 9:00 a.m. local time on the second business day following
the satisfaction or waiver of all conditions to the obligations of the Parties
to consummate the transactions contemplated by this Agreement (other than
conditions with respect to actions the respective Parties will take at the
Closing itself) or such other date as Buyer and Seller may mutually determine
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(the "Closing Date"); PROVIDED, HOWEVER that the Closing Date shall be no later
than April 30, 1997.
(d) DELIVERIES AT THE CLOSING. At the Closing, (i) Seller will execute,
acknowledge (if appropriate), and deliver to Buyer the Standstill Agreement and
the various certificates, instruments, and documents referred to in ss.6(a)
below, (ii) Buyer will execute, acknowledge (if appropriate), and deliver to
Seller the Standstill Agreement and the various certificates, instruments, and
documents referred to in ss.6(b) below, (iii) Seller will deliver to Buyer
certificates issued in the name of Buyer representing the Valhi Units, and (iv)
Buyer will deliver to Seller the consideration specified in ss.2(b) above.
3. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer that the statements contained in this ss.3(a) are correct and
complete as of the date of this Agreement except as set forth in the disclosure
schedule attached hereto as EXHIBIT A and incorporated in this Agreement by this
reference (the "Disclosure Schedule"). Seller shall confirm whether the
statements contained in this ss.3(a) are correct and complete as of the Closing
Date (as though made then and as though the Closing Date were substituted for
the date of this Agreement throughout this ss.3(a), except with respect to the
first sentence of Section 3(a)(vii)).
(i) ORGANIZATION OF SELLER. Seller is a limited partnership
duly formed and validly existing under the laws of Delaware.
(ii) AUTHORIZATION OF TRANSACTION. Seller has the power and
authority under its partnership documents to execute and deliver this
Agreement and the Standstill Agreement and to perform its obligations
under this Agreement and the Standstill Agreement. The execution and
delivery of this Agreement and the Standstill Agreement has been
approved by all action required under Seller's partnership documents.
This Agreement constitutes and the Standstill Agreement, when executed,
will constitute the valid and legally binding obligations of Seller,
enforceable in accordance with their respective terms and conditions.
(iii) NONCONTRAVENTION. Neither the execution and the delivery
of this Agreement or the Standstill Agreement, nor the consummation of
the transactions contemplated by such agreements, will (A) violate any
valid constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Seller is subject or any
provision of its partnership documents or (B) conflict with, result in
a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or
cancel, or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement
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to which Seller is a party or by which it is bound or to which any of
its assets is subject. To the Knowledge of Seller, and other than in
connection with the provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, Seller
does not need to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
(iv) BROKERS' FEES. Seller has no liability or obligation to
pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
Buyer could become liable or obligated.
(v) VALHI UNITS. Subject to this Agreement and the Standstill
Agreement, the Valhi Units will be issued free and clear of any
restrictions on transfer (other than restrictions on transfer imposed
by the Securities Act and state securities laws), taxes, Security
Interests, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands. Seller is not a party to any voting
trust, proxy, or other agreement or understanding with respect to the
voting of the Valhi Units that will exist after the Closing other than
the Standstill Agreement. No preemptive or similar rights exist with
respect to the Valhi Units.
(vi) SELLER'S STATUS AND BUSINESS. Seller is duly authorized
to conduct business under the laws of each jurisdiction where
qualification is required, except where the lack of such qualification
would not have a material adverse effect on the financial condition of
Seller. Seller has the power and authority to carry on the businesses
in which it is engaged and to own and use the properties owned and used
by it.
(vii) UNITS. As of the date of this Agreement, the issued and
outstanding Units consist of 7,201,028 Units. All of the issued and
outstanding Units have been duly authorized, are validly issued, and
fully paid. Except for this Agreement, there are no outstanding or
authorized options, warrants, purchase rights, subscription rights,
conversion rights, exchange rights, or other contracts or commitments
that could require Seller to issue, sell, or otherwise cause to become
outstanding any Units. There are no outstanding or authorized Unit
appreciation, profit participation, or similar rights with respect to
Seller.
(viii) MATERIAL INFORMATION. Seller has delivered to Buyer
copies of Seller's Annual Report on Form10-K for the year ended
December 31, 1996 (the "Form 10-K"), as filed with the Commission.
Seller has made available to Buyer all other reports, registration
statements and other documents filed by Seller with the Commission
under the Securities Exchange Act since January 1, 1996. Seller has
filed all reports, registration statements and other documents required
to be filed with the Commission under the rules and regulations of the
Commission since
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January 1, 1996, and all such Commission filings complied as to form
with the requirements of the Securities Exchange Act. The Form10-K
(including any exhibits or schedules or documents incorporated therein
by reference) did not contain any untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Seller's audited
consolidated financial statements included in the Form10-K have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as may be indicated in the notes
to such statements) and fairly present Seller's financial position as
of the dates of the balance sheets and Seller's results of operations
and changes in cash flow for the periods presented (except, in the case
of the unaudited financial statements, for normal year-end adjustments
and for the condensation or omission of footnote disclosures in
accordance with the requirements of the Commission).
(ix) EVENTS SUBSEQUENT TO MOST RECENT FILING. Since filing the
Form 10-K with the Commission, there has not been any material adverse
change in the financial condition, results of operation or liquidity of
Seller. Without limiting the generality of the foregoing, since that
date Seller has not engaged in any practice, taken any action, or
entered into any transaction outside the Ordinary Course of Business.
(b) REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller that the statements contained in this ss.3(b) are correct and
complete as of the date of this Agreement except as set forth in the Disclosure
Schedule. Buyer shall confirm whether the statements contained in this ss.3(b)
are correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this ss.3(b)).
(i) ORGANIZATION OF BUYER. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of
Delaware.
(ii) AUTHORIZATION OF TRANSACTION. Buyer has the corporate
power and authority to execute and deliver this Agreement and the
Standstill Agreement and to perform its obligations under this
Agreement and the Standstill Agreement. The execution and delivery of
this Agreement and the Standstill Agreement have been approved by
Buyer's Board of Directors and no approval is required by the Buyer's
stockholders. This Agreement constitutes and the Standstill Agreement,
when executed, will constitute the valid and legally binding
obligations of Buyer, enforceable in accordance with their respective
terms and conditions.
(iii) NONCONTRAVENTION. Neither the execution and the
delivery of this Agreement or the Standstill Agreement, nor the
consummation of the transactions
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contemplated by such agreements, will (A) violate any valid
constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Buyer is subject or any
provision of its certificate of incorporation or bylaws or (B) conflict
with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement
to which Buyer is a party or by which it is bound or to which any of
its assets is subject. To the Knowledge of Buyer, and other than in
connection with the provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, Buyer does
not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions
contemplated by this Agreement.
(iv) BROKERS' FEES. Buyer has no liability or obligation to
pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which
Seller could become liable or obligated.
(v) FUNDING. Buyer possesses adequate cash reserves to fund
the purchase of the Valhi Units.
(vi) SOPHISTICATED INVESTOR.
(A) ACCREDITED INVESTOR. Buyer is an "accredited
investor" as defined in Rule 501(a)(3) under
the Securities Act.
(B) INVESTMENT PURPOSE. Buyer is acquiring the
Valhi Units for investment purposes and not
with a view to making a distribution of the
Valhi Units in violation of the Securities
Act.
(C) INVESTMENT EXPERIENCE. Buyer has sufficient
knowledge and experience to enable it to
evaluate the merits and risks of an investment
in the Valhi Units.
(D) FINANCIAL DISCLOSURE. Buyer has received all
of the financial and other information of
Seller that Buyer considers necessary to
evaluate an investment in the Valhi Units.
(E) ABILITY TO BEAR LOSS. Buyer has the financial
ability to bear any loss with respect to its
investment in the Valhi Units.
(F) PLACE OF BUSINESS. The principal place of
business of Buyer is located in the State of
Texas.
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(c) LACK OF MARKETABILITY. Buyer acknowledges that:
(i) NO TRANSFER. Buyer may not sell or otherwise transfer the
Valhi Units: (A) unless such sale or other transfer of such Units is
registered under the Securities Act and the securities laws of any
applicable state or other jurisdiction, or such sale or transfer is
exempt from registration under such laws, and (B) except as permitted
under the transfer restrictions contained in this Agreement and the
Standstill Agreement.
(ii) LIMITED REGISTRATION RIGHTS. Except as contemplated under
Section 5, Seller will be under no obligation to register Buyer's
resale of the Valhi Units under the Securities Act or the securities
laws of any state or other jurisdiction.
4. PRE-CLOSING COVENANTS. The Parties agree as follows with respect
to the period between the execution of this Agreement and the Closing.
(a) GENERAL. Each of the Parties will use its reasonable efforts to
take all action and to do all things necessary in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in ss.6
below).
(b) NOTICES AND CONSENTS. Each Party will give any notices (and cause
each of its Subsidiaries to give any notices) to third parties, and each Party
will use its reasonable efforts to obtain any third party consents, that the
other Party reasonably may request in connection with the matters referred to in
ss.3(a)(iii) and ss.3(b)(iii) above and the related Disclosure Schedule. Without
limiting the generality of the foregoing, each of the Parties will file any
notification and report forms and related material that it may be required to
file with the Federal Trade Commission and the Antitrust Division of the United
States Department of Justice under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act or otherwise, will
use its reasonable efforts to obtain early termination of the applicable waiting
period, and will make any further filings pursuant thereto that may be
necessary.
(c) ACCESS. Seller will permit representatives of Buyer to have access
at all reasonable times, and in a manner so as not to interfere with the normal
business operations of Seller, to all premises, properties, personnel, books,
records (including tax records), contracts, and documents of or pertaining to
Seller as Buyer may reasonably request from time to time. Buyer will treat and
hold as such any Confidential Information it receives from Seller in the course
of the reviews contemplated by this ss.4(c), and, if this Agreement is
terminated for any reason whatsoever, will return to Seller all tangible
embodiments (and all copies) of the Confidential Information which are in its
possession and continue to treat such information as confidential. Buyer shall
not use the Confidential Information in any manner in violation of applicable
law.
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(d) NO TRADING. Buyer shall not purchase, sell, or deal in any Units
prior to the earlier of the Closing or termination of this Agreement.
(e) NOTICE OF DEVELOPMENTS. Each Party will give prompt written notice
to the other Party of any material adverse development causing a breach of any
of its own representations and warranties in ss.3 above. No disclosure by any
Party pursuant to this ss.4(e), however, shall be deemed to amend or supplement
the Disclosure Schedule or to prevent or cure any misrepresentation or breach of
warranty.
5. POST-CLOSING COVENANTS. The Parties agree as follows with respect
to the period following the Closing.
(a) GENERAL. In case at any time after the Closing any further action
is necessary to carry out the purposes of this Agreement, each of the Parties
will take such further action (including the execution and delivery of such
further instruments and documents) as the other Party reasonably may request,
all at the sole cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification therefor under ss.7 below).
(b) LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
any transaction contemplated under this Agreement, the other Party shall
cooperate with it and its counsel in the defense or contest, make available its
personnel, and provide such testimony and access to its books and records and be
available to testify as shall be necessary in connection with the defense or
contest, all at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to indemnification
therefor under ss.7 below).
(c) PUBLIC INFORMATION. Seller will file all reports required to be
filed by it pursuant to the requirements of the Securities Exchange Act and the
rules and regulations adopted by the Commission under such Act, and will take
such further action as necessary to enable Buyer to sell the Valhi Units
pursuant to (a) Rule 144 adopted by the Commission under the Securities Act (as
such rule may be amended from time to time) or any similar rule or regulation
hereafter adopted by the Commission or (b) the Shelf Registration Statement.
Upon written request, Seller will deliver to Buyer a written statement as to
whether it has complied with these requirements.
(d) SHELF REGISTRATION. As soon as practicable following the Closing
Date, Seller shall prepare and file with the Commission a registration statement
(on Form S-3 if available) for the purpose of Buyer's resale of the Valhi Units
(the "Shelf Registration Statement") and take any other action reasonably
requested by Buyer in connection with any such resale (all of such actions, the
"Shelf Registration"). Seller shall cause the Shelf
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Registration Statement to become effective under the Securities Act as soon as
practicable and shall keep the Shelf Registration Statement effective until the
earliest to occur of three years from the Closing Date or the date on which the
Buyer is entitled to sell all of the Valhi Units under Rule 144 without
registration under the Securities Act, or any similar successor rule (the "Shelf
Registration Period"). If Buyer sells or otherwise transfers any of the Valhi
Units as permitted by this Agreement and the Standstill Agreement in a sale or
other transfer that is not registered under the Securities Act, Buyer may assign
along with such Valhi Units its registration rights under this Agreement with
respect to such Valhi Units to the purchaser or other transferee of such Valhi
Units. Upon executing and delivering to Seller a document assuming Buyer's
obligations under this Agreement and the Standstill Agreement, such purchaser or
other transferee of Valhi Units (collectively with Buyer, the "Holders") shall
be entitled to such registration rights. No subsequent purchasers or transferees
of any Valhi Units shall be entitled to such rights.
(e) SHELF REGISTRATION PROCEDURES. In connection with the Shelf
Registration, the following procedures shall apply:
(i) Seller shall furnish to the Holders, prior to the filing
thereof with the Commission, a copy of the Shelf Registration
Statement, and each amendment thereof and each amendment or supplement,
if any, to any prospectus included therein (the "Prospectus") and shall
use reasonable efforts to reflect in each such document, when so filed
with the Commission, such comments as the Holders reasonably may
propose, provided that Seller shall not be required to include any
particular comment of the Holders.
(ii) Seller shall take such action as may be necessary so
that (A) the Shelf Registration Statement and any amendment thereto and
any Prospectus and any amendment or supplement thereto (and each report
or other document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, (B)
the Shelf Registration Statement and any amendment thereto does not,
when it becomes effective, contain 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, (C) the
Prospectus and any amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not misleading, and
(D) the Seller complies with Rule 153 of the Securities Act Rules.
(iii) Seller promptly shall advise the Holders in writing:
(A) when the Shelf Registration Statement and any amendment thereto has
been filed with the
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Commission and when the Shelf Registration Statement or any
post-effective amendment thereto has become effective; (B) of any
request by the Commission for amendments or supplements to the Shelf
Registration Statement or the Prospectus or for additional information;
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose; (D) of the receipt by Seller of any
notification with respect to the suspension of the qualification of the
Valhi Units included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (E) of the happening
of any event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such date, the
Shelf Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not
misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have been
made).
(iv) Seller shall use commercially reasonable efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of the Shelf Registration Statement
at the earliest possible time.
(v) Seller shall furnish to each Holder included within the
coverage of the Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective
amendment thereto (including any reports or other documents
incorporated therein by reference), including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
(including those incorporated by reference).
(vi) Seller shall, during the Shelf Registration Period,
deliver to each Holder of Valhi Units included within the Shelf
Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Holder may reasonably request; and Seller
consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders in connection with the offering
and sale of the Valhi Units covered by the Prospectus or any amendment
or supplement thereto during the Shelf Registration Period.
(vii) Prior to any offering pursuant to the Shelf Registration
Statement, Seller shall register or qualify or cooperate with the
Holders of Valhi Units included therein and their respective counsel in
connection with the registration or qualification of such Valhi Units
for offer and sale under the securities or blue sky laws of such
jurisdictions within the continental United States as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or
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advisable to enable the offer and sale in such jurisdictions of the
Valhi Units covered by such Shelf Registration Statement; PROVIDED,
HOWEVER, that Seller will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process or
to taxation in any such jurisdiction where it is not then so subject.
(viii) Seller shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing Valhi
Units to be sold pursuant to the Shelf Registration Statement free of
any restrictive legends and in such permitted denominations and
registered in such names as Holders may request in connection with the
sale of Valhi Units pursuant to such Shelf Registration Statement.
(ix) Upon the occurrence of any event contemplated by
paragraph (iii) above, Seller shall promptly prepare a post-effective
amendment to the Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Valhi
Units included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Seller
notifies the Holders of the occurrence of any event contemplated by
paragraph (iii) above, the Holders shall suspend the use of the
Prospectus until the requisite changes to the Prospectus have been
made.
(x) Seller may require each Holder selling Valhi Units
pursuant to the Shelf Registration Statement to furnish to Seller such
information regarding the Holder and the distribution of such Valhi
Units as Seller may from time to time reasonably require for inclusion
in such Shelf Registration Statement and Seller may exclude from such
registration the Valhi Units of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(xi) Seller shall enter into such customary and reasonable
agreements (including underwriting agreements in customary form) to
take all other appropriate actions reasonably necessary to expedite or
facilitate the registration or the disposition of the Valhi Units, and
in connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in this paragraph (e) (or
such other customary and reasonable provisions and procedures
acceptable to such underwriters, if any) with respect to all parties to
be indemnified pursuant to this paragraph (e).
-12-
(xii) Seller shall (A) make reasonably available for
inspection by the Holders whose Valhi Units will be registered
thereunder, any underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney, accountant or
other agent retained by such Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of Seller and its Subsidiaries; (B) cause Seller's general
partner and employees to supply all relevant information reasonably
requested by such Holders or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement as is
customary for similar due diligence examinations; (C) make such
representations and warranties to the Holders of Valhi Units registered
thereunder and the underwriters, if any, in form, substance and scope
as are customarily made by Seller to underwriters in primary
underwritten offerings; (D) obtain opinions of counsel to Seller (who
may be the General Counsel of Seller) and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters (it being agreed that the matters to be covered by such
opinion shall include, without limitation, as of the date of the
opinion and as of the Effective Date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case
may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, including
the documents incorporated by reference therein, of an untrue statement
of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading); (E) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of Seller
(and, if necessary but subject to the limitations of ss.6(e)(xiii), any
other independent certified public accountants of any subsidiary of
Seller or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Shelf Registration Statement), addressed to each such Holder
registered thereunder and the underwriters, if any, in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and (F)
deliver such documents and certificates as may be reasonably requested
by any such Holders and the underwriters, if any, including those to
evidence compliance any customary conditions contained in the
underwriting agreement. The foregoing actions set forth in this
paragraph (e) shall be performed at each closing under any underwritten
offering to the extent required thereunder.
(xiii) Seller shall bear all fees and expenses incurred in
connection with the performance of its obligations under this paragraph
(e) and shall bear or reimburse the Holders for the reasonable fees and
disbursements of one firm of counsel
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designated by the Holders of a majority of the Valhi Units covered by
the Shelf Registration Statement and reasonably acceptable to Buyer to
act as counsel for the Holders in connection therewith ("Holders'
Counsel"); provided however, that Seller shall not be obligated to
reimburse the Holders or incur expenses in excess of $20,000 in the
aggregate for Holders' Counsel plus the expenses arising from obtaining
and delivering any legal opinions and "cold comfort" letters; provided,
further, that each Holder shall be solely responsible for the payment
of any commissions or discounts to brokers, underwriters, or other
Persons incurred in connection with the disposition of such Holder's
Valhi Units.
(xiv) In connection with the Shelf Registration Statement,
Seller, agrees to indemnify and hold harmless each Holder covered
thereby (including Buyer) and each person who controls any Holder
within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that (A) Seller will not be liable in any
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
Seller by or on behalf of Buyer or any Holder specifically for
inclusion therein and (B) the foregoing indemnity with respect to any
untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary Prospectus relating to the Shelf
Registration Statement shall not inure to the benefit of any Holder (or
any person controlling such Holder) from whom the person asserting any
such loss, claim, damage or liability purchases any of the securities
that are the subject thereof if such person did not receive a copy of
the final Prospectus (or the final Prospectus as supplemented) at or
prior to the written confirmation of the sale of such Valhi Units to
such person and the untrue statement or alleged untrue statement or
omission or alleged omission contained in the preliminary prospectus
was corrected in the final Prospectus (or the final Prospectus as
supplemented). This indemnity agreement will be in addition to any
liability which Seller may otherwise have.
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(xv) Seller, jointly and severally, also agrees to indemnify
or contribute to Losses (as defined below) of any underwriters of Valhi
Units registered under the Shelf Registration Statement, their
officers, directors, employees and agents and each person who controls
such underwriters on substantially the same basis as that of the
indemnification of Buyer and the selling Holders provided in this
paragraph (e) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement to indemnify.
(xvi) Each Holder covered by the Shelf Registration Statement
(including Buyer) severally agrees to indemnify and hold harmless
Seller, its Managing General Partner, the officers and directors of its
Managing General Partner and each person who controls Seller or its
Managing General Partner within the meaning of either the Securities
Act or the Exchange Act to the same extent as the foregoing indemnity
from Seller, but only with reference to losses, claims, damages or
liabilities (or actions in respect thereof) arising out of or based
upon (A) any written information relating to such Holder furnished by
or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity, or (B) any untrue statement or
alleged untrue statement or omission or alleged omission made in any
preliminary Prospectus relating to the Shelf Registration Statement
that was completely corrected in the final Prospectus (or the final
Prospectus as supplemented) if at or prior to the written confirmation
of the sale of such Valhi Units the purchaser failed to receive the
final Prospectus (or the final Prospectus as supplemented). This
indemnity agreement will be in addition to any liability which any such
Holder may otherwise have.
(xvii) Promptly after receipt by an indemnified party under
this paragraph (e) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this paragraph (e) , notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve the indemnifying party
from any liability it may have to any indemnified party unless such
delay prejudices the indemnifying party. In case any such action is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of such indemnified
party, have previously served as counsel to the indemnifying party on
any significant matter), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this paragraph (e) for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The
indemnified party shall use reasonable
-15-
efforts to avoid duplication of work and expense by its counsel. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which such indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action.
(xviii) In the event that the indemnity provided in paragraph
(e) is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified
party, on the other hand, from the Shelf Registration Statement which
resulted in such Losses; PROVIDED, HOWEVER, that in no case shall Buyer
or any subsequent Holder of any Valhi Units be responsible, in the
aggregate, for any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Valhi Units
pursuant to the Shelf Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party on the one
hand, or by the indemnified party, on the other hand. The parties agree
that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (e), each person who controls a Holder within the
meaning of either the Securities Act or the Exchange Act shall have the
same rights to contribution as such Holder, and each person who
controls Seller within the meaning of either the Securities Act or the
Exchange Act, including its Managing General Partner
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and each officer and director of such Managing General Partner shall
have the same rights to contribution as Seller, subject in each case to
the applicable terms and conditions of this paragraph (e).
(xix) The indemnification provisions of this paragraph (e)
will remain in full force and effect, regardless of any investigation
made by or on behalf of any Holder or Seller or any of the general
partners, officers, directors, employees, agents or controlling persons
referred to in this paragraph (e), and will survive the sale by a
Holder of Valhi Units covered by the Shelf Registration Statement.
(f) NYSE LISTING APPLICATION. Seller shall apply for listing of all
Valhi Units on the New York Stock Exchange and cause such listing to be
effective upon notice of issuance at Closing.
(g) NO TRADING. From and after the Closing, the Buyer shall not
purchase, sell, or deal in any Units except in accordance with the Standstill
Agreement and this Agreement and in accordance with applicable law.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.3(a)
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) Seller shall have delivered to Buyer a certificate to the
effect that each of the conditions specified above in ss.6(a)(i)-(ii)
is satisfied in all respects;
(v) all applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or
otherwise been terminated and the Parties shall have received all other
authorizations, consents, and approvals of governments and governmental
agencies referred to in ss.3(a)(iii) and ss.3(b)(iii) above;
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(vi) all conditions have been satisfied to the obligations of
the parties to the Asset Purchase Agreement and the Stock Purchase
Agreement and the closings of the transactions contemplated in the
Asset Purchase Agreement and the Stock Purchase Agreement shall occur
simultaneously with the Closing;
(vii) Seller shall not have engaged in any practice, taken any
action, or entered into any transaction outside the Ordinary Course of
Business since the date of this Agreement other than as contemplated by
the Asset Purchase Agreement or described in the Disclosure Schedule;
and
(viii) all actions to be taken by Seller in connection with
consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in
form and substance to Buyer.
Buyer may waive any condition specified in this ss.6(a) if it executes a writing
so stating at or prior to the Closing.
(b) Conditions to Obligation of Seller. The obligation of Seller to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in ss.3(b)
above shall be true and correct in all material respects at and as of
the Closing Date;
(ii) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) there shall not be any injunction, judgment, order,
decree, ruling, or charge in effect preventing consummation of any of
the transactions contemplated by this Agreement;
(iv) Buyer shall have delivered to Seller a certificate to the
effect that each of the conditions specified above in ss.6(b)(i)-(ii)
is satisfied in all respects;
(v) all applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall have expired or
otherwise been terminated and the Parties shall have received all other
authorizations, consents, and approvals of governments and governmental
agencies referred to in ss.3(a)(iii) and ss.3(b)(iii) above;
(vi) all conditions have been satisfied to the obligations of
the parties to the Asset Purchase Agreement and the Stock Purchase
Agreement and the closings
-18-
of the transactions contemplated in the Asset Purchase Agreement and
the Stock Purchase Agreement shall occur simultaneously with the
Closing; and
(vii) all actions to be taken by Buyer in connection with
consummation of the transactions contemplated hereby and all
certificates, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in
form and substance to Seller.
Seller may waive any condition specified in this ss.6(b) if it executes a
writing so stating at or prior to the Closing.
7. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties of the Parties contained in ss.3 above shall
survive the Closing (unless the damaged Party had Knowledge of any
misrepresentation or breach of warranty contained in ss.3 above at the time of
Closing) and continue in full force and effect until the expiration of any
applicable statutes of limitations.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF BUYER. In the event
Seller breaches any of its representations in ss.3 above or any of its covenants
contained in ss.2(e) or ss.5 of this Agreement, Seller agrees to indemnify Buyer
from and against any Adverse Consequences Buyer shall suffer through and after
the date of the claim for indemnification caused proximately by the breach.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF SELLER. In the event
Buyer breaches any of its representations in ss.3 above or any of its covenants
contained in ss.5 of this Agreement, Buyer agrees to indemnify Seller from and
against any Adverse Consequences Seller shall suffer through and after the date
of the claim for indemnification caused proximately by the breach.
(d) MATTERS INVOLVING THIRD PARTIES.
(i) If any third party shall notify any Party (the
"INDEMNIFIED PARTY") with respect to any matter (a "THIRD PARTY CLAIM")
which may give rise to a claim for indemnification against the other
Party (the "INDEMNIFYING PARTY") under this ss.7, then the Indemnified
Party shall promptly (and in any event within ten (10) business days
after receiving notice of the Third Party Claim) notify the
Indemnifying Party thereof in writing.
(ii) The Indemnifying Party will have the right to assume and
thereafter conduct the defense of the Third Party Claim with counsel of
its choice; PROVIDED, HOWEVER, that the Indemnifying Party will not
consent to the entry of any judgment
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or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnified Party (not to be
withheld unreasonably) unless the judgment or proposed settlement
involves only the payment of money damages and does not impose an
injunction or other equitable relief upon the Indemnified Party.
(iii) Unless and until the Indemnifying Party assumes the
defense of the Third Party Claim as provided in ss.7(d)(ii) above,
however, the Indemnified Party may defend against the Third Party Claim
in any manner it reasonably may deem appropriate.
(iv) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnifying
Party.
(e) DETERMINATION OF ADVERSE CONSEQUENCES. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage and take into
account the time cost of money (using the "Prime Rate" as identified in the Wall
Street Journal Money Rates section from time to time as the base rate of
interest for corporate loans as the discount rate) in determining Adverse
Consequences for purposes of this ss.7. All indemnification payments under this
ss.7 shall be deemed adjustments to the Purchase Price.
(f) OTHER INDEMNIFICATION PROVISIONS. The indemnification provisions
in this ss.7 are the sole remedy any Party may have for breach of any
representation or warranty in ss.3 or any covenant in ss.5.
8. TERMINATION.
(a) TERMINATION OF AGREEMENT. The Parties may terminate this Agreement
as provided below:
(i) Buyer and Seller may terminate this Agreement by mutual
written consent at any time prior to the Closing;
(ii) Buyer may terminate this Agreement by giving written
notice to Seller at any time prior to the Closing in the event (A)
Seller has within the then previous ten (10) business days given Buyer
any notice pursuant to ss.4(e) above and any subject breach remains
uncured on the date of Buyer's termination notice to Seller;
(iii) Buyer may terminate this Agreement by giving written
notice to Seller at any time prior to the Closing (A) in the event
Seller has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Buyer has notified
Seller of the breach, and the breach has continued
-20-
without cure for a period of thirty (30) days after the notice of
breach or (B) if the Closing shall not have occurred on or before April
18, 1997, by reason of the failure of any condition precedent under
ss.6(a) hereof (unless the failure results primarily from Buyer itself
breaching any representation, warranty, or covenant contained in this
Agreement);
(iv) Seller may terminate this Agreement as provided in clause
(y) of ss.2(a) above;
(v) Seller may terminate this Agreement by giving written
notice to Buyer at any time prior to the Closing in the event Buyer has
within the then previous ten (10) business days given Seller any notice
pursuant to ss.4(e) above and any subject breach remains uncured on the
date of Seller's termination notice to Buyer; and
(vi) Seller may terminate this Agreement by giving written
notice to Buyer at any time prior to the Closing (A) in the event Buyer
has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Seller has
notified Buyer of the breach, and the breach has continued without cure
for a period of thirty (30) days after the notice of breach or (B) if
the Closing shall not have occurred on or before April 18, 1997, by
reason of the failure of any condition precedent under ss.6(b) hereof
(unless the failure results primarily from Seller itself breaching any
representation, warranty, or covenant contained in this Agreement).
(b) EFFECT OF TERMINATION. If any Party terminates this Agreement
pursuant to ss.8(a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach); provided, however, that the
confidentiality provisions contained in ss.4(c) above shall survive termination
and Buyer shall not purchase, sell, or deal in any Units except in accordance
with applicable law.
10. MISCELLANEOUS.
(a) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement prior to the Closing without the prior written approval of the
other Party; provided, however, that any Party or any affiliate of such Party
may make any public disclosure it believes in good faith is required by
applicable law or any listing or trading agreement concerning its
publicly-traded securities (in which case the Party which intends, or which has
an affiliate that intends, to issue such press release or make such public
announcement will advise the other Party prior to making the disclosure and
provide the other Party opportunity to comment upon the release or
announcement).
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(b) NO THIRD PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns, except for the Holders with respect to the
registration rights described in Section 5(e) and the other persons entitled to
indemnification under this Agreement.
(c) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and supersedes
any prior understandings, agreements, or representations by or between the
Parties, written or oral, to the extent they related in any way to the subject
matter hereof.
(d) SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party, except that Buyer may assign its registration rights under
this Agreement as provided in Section 5(d).
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
IF TO SELLER: U.S. Restaurant Properties Master L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
L.B. 168
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
COPY TO: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Middleberg ▇▇▇▇▇▇ & Gianna
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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IF TO BUYER: Valhi, Inc.
Three Lincoln Centre, Suite 1700
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
COPY TO: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
(i) AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any such prior or subsequent occurrence.
(j) SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
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(k) EXPENSES. Each of Buyer and Seller will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding the
foregoing sentence, Buyer shall bear the costs of any and all transfer taxes,
including without limitation any use or sales taxes, associated with the sale of
the Valhi Units.
(l) CONSTRUCTION. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
(m) INCORPORATION OF EXHIBITS. The Exhibits and any annexes and
schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
*****
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
U.S. RESTAURANT PROPERTIES MASTER L.P.,
a Delaware limited partnership
By: U.S. Restaurant Properties, Inc., a _____
corporation, its Managing General Partner
By:
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Title:
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VALHI, INC., a Delaware corporation
By:
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Title:
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EXHIBIT A
DISCLOSURE SCHEDULE
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EXHIBIT B
FORM OF STANDSTILL AGREEMENT
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